Human Rights in Action:
Monitoring Compliance through Treaty Bodies and Special Rapporteurs

Since the adoption of the Universal Declaration of Human Rights in 1948, an elaborate system of mechanisms has been created to ensure the advancement of universal human rights, as well as to deal with violations of human rights as they occur. At the centre of this system are two types of mechanisms: formal monitoring of States' compliance with international treaties, and extra-conventional meachanisms or special procedures -- working groups, special rapporteurs and special representatives of the Secretary-General -- which deal with burning issues as they arise.

The Treaty Bodies

Once the Universal Declaration of Human Rights was adopted, the Commission on Human Rights set out to turn the principles that it defined into international treaties. When States ratify international treaties, they agree to engage in a review process of their human rights legislation and practice by groups of independent experts.

The first human rights instrument to establish an international monitoring system was the Convention on the Elimination of Racial Discrimination, adopted by the General Assembly in 1965. This convention not only defined and condemned racial discrimination, but also committed States to amend policy which creates or perpetuates racial discrimination. It was also revolutionary in its provision for national measures towards the advancement of specific racial or ethnic groups. Today, the convention has 148 States parties.

The Committee on the Elimination of Racial Discrimination was established in 1969 when the Convention went into force. It consists of 18 independent experts, nominated and elected by States parties to the convention. States submit to the Committee periodic reports on their legislation and practices relevant to the convention's provisions. The Committee can also investigate and attempt to reconcile complaints made by one State against another, as well as communications from individuals.

In 1966, after two decades of debate, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights were adopted. The Covenant on Economic, Social and Cultural Rights addresses the right to work, to form trade unions, to have social security, to protection of the family, to a standard of living, health and education. The Covenant on Civil and Political Rights defends the right to life -- that no one can be subjected to torture, enslavement, forced labour, arbitrary detention -- and such freedoms as movement, expression and association.These two treaties, which entered into force in 1976, today have 137 and 140 States parties, respectively.

Much of the long debate focussed on the question of one treaty versus two. The prevailing belief was that civil and political rights were already legislatively defined in most countries and could therefore be reviewed by a monitoring body. Economic, social and cultural rights at the time were considered goals and less enforceable, even though the Universal Declaration itself had identified the two sets of rights as equally important. Thus, only the Covenant on Civil and Political Rights stipulated creation of a monitoring body - the Human Rights Committee - which was mandated to study reports from States parties, to make comments and recommendations, to consider complaints from one State against another and to consider complaints from individuals. It was not until 1985 that a Committee on Economic, Social and Cultural Rights was created as a treaty body by the United Nations Economic and Social Council. Unlike the other committees, whose member are elected by States parties to the conventions, the members of the Committee on Economic, Social and Cultural Rights are elected by all members of the Economic and Social Council.

Three subsequent conventions also established treaty bodies: the Convention on the Elimination of All Forms of Discrimination against Women (161 ratifications), which entered into force in 1981 and established the Committee on the Elimination of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (104 ratifications), which entered into force in 1987 and established the Committee against Torture; and the Convention on the Rights of the Child (191 ratifications), which entered into force in 1990 and established the Committee on the Rights of the Child.

A Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at the abolition of the death penalty was adopted in 1989 and is monitored by the Human Rights Committee.

Monitoring Compliance with Treaties

In ratifying any of these treaties, States willingly subject their legislations and policy to international monitoring, which is based on a dialogue and cooperation between the relevant United Nations committee and participating States.

All of the committees are made up of independent, non-governmental experts. Following ratification, each country submits an initial comprehensive report on legislation which relates to the principles of the convention. Periodic reports are subsequently required. To review reports, as well as any additional information provided by non-governmental organizations (NGOs), specialized agencies, special rapporteurs or working groups, the Committee meets with the representatives of the State, generally high-level delegations. Formal comments are subsequently forwarded to Governments.

In reviewing the reports the different committees use additional sources of information to varying degrees. The input of non-governmental organizations is central to the operation of the Committee on Economic, Social and Cultural Rights, says Dr. Philip Alston, the Committee's Chairman. "NGOs are essential in providing details and case studies which would not be available from Government sources. In the case of economic rights, we need to know what is happening in practice because legislation is marginal. Therefore, we are dependent on information from the field. We were the first committee to make NGOs a full partner in the sense that we devote a part of our session at the beginning to information from NGOs which we use in debate with Government representatives."

In addition to these functions, committees play a significant part in the mobilization of public awareness with the organization of such activities as international years, decades and world conferences.

Getting results

The relationships which Committee members have developed with States' representatives have proven to be an important factor in the advancement of human rights on the national level. Committees guide States over the long term in the revision of law and policy which impact human rights, especially as international debate focuses on more and more broadly defined rights.

According to Dr. Alston, who has chaired the Committee on Economic, Social and Cultural Rights since 1991, "The main development of recent years is the mainstreaming of economic and social rights. We have been able to persuade other actors to see economic rights as human rights, in particular bringing the right to housing to the top of the agenda of the Habitat Conference (Istanbul)." Based on Government reports and United Nations estimates of 100 million homeless worldwide and 1 billion people inadequately housed, the Committee adopted General Recommendation No. 4 on the right to adequate housing. In response, several Governments have abandoned forced eviction plans and are focusing on guaranteed housing. "The Dominican Republic, for example, which had been criticized for six years for inadequate housing, invited us to do an on-the spot survey and meet with non-governmental agencies," says Dr. Alston.

The Government of the Philippines recently reported to the Committee new programmes to relocate and house evicted and homeless and to increase the amount of public spending on new housing. Since 1990 the Committee had been expressing concern about reports of massive homelessness and forced eviction in Panama. In 1996, a Committee mission was invited by the Government to analyze the country's serious housing shortage. "The mission was a tremendous success," says Dr. Alston, "resulting in a much stronger dialogue about housing, amendment of legislation and new housing policy, including commitment to restraint from further forced evictions and bulldozing of existing housing".

In addition to housing, efforts are aimed toward universal recognition of the rights to food health and education as human rights. The Committee recently persuaded Zimbabwe to abandon the charging of fees for primary education, a policy incompatible with the Covenant.

The newest of the treaties, the Convention on the Rights of the Child, is the most universally ratified human rights convention (only two United Nations Member States - the United States and Somalia -- are not parties) and it has enjoyed great momentum in a very short time. According to UNICEF, reports from more than 40 countries have been reviewed. Of these, 14 States have incorporated the Convention into their constitutions and 35 have passed new laws or amendments conforming with the Convention. These have taken the form of laws to protect children in general; revisions of laws related to child abuse, child labour and adoption; extensions of the length of compulsory education; protection of child refugees and minority children; and reform of juvenile justice systems.

The committees, however, are hindered in their work by two major factors: their reliance on States for submission of reports, which are sometimes delayed by years. A recent breakthrough, says Dr. Alston, is that two treaty bodies -- the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Racial Discrimination -- have adopted a policy that non-reporting cannot be permitted to have its own rewards. "If a country reported once, it is appropriate for the committee to step in proactively as long as the problem can be dealt with in an orderly dialogue."

Individual communications

Three of the six treaties that established monitoring committees also stipulated a procedure -- which States parties have the option to ratify -- for the consideration of individual complaints. According to the Covenant on Civil and Political Rights (which has 84 ratifications of the optional protocol), the Conventions on Racial Discrimination (14 ratifications) and on Torture (28 ratifications), individuals may submit complaints pertaining to a ratifying State directly to the United Nations. Efforts are under way to finalize an optional protocol creating such a mechanism for the Convention on the Elimination of all Forms of Discrimination Against Women. Consensus at the Vienna Conference in 1993 also prompted the drafting of an Optional Protocol to the Covenant on Economic, Social and Political Rights.

If an individual communication concerning a violation of civil or political rights is considered admissible by the Human Rights Committee, it is brought to the attention of the State involved, which is then obligated to submit an explanation. Any final decision on whether or not the Covenant has been violated is made public.

In respect of the principle of non-interference in States' internal affairs, it was several years before the United Nations was compelled to act on the many individual complaints it received outside the purviews described above. These, traditionally, were forwarded to non-governmental organizations. As of 1959, confidential lists cataloguing complaints, but not intended for action, were circulated to the Commission on Human Rights and to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities.

In 1970, resolution 1503 of the Economic and Social Council established a confidential procedure involving the Commission on Human Rights and its Sub-Commission, to examine communications received from individuals and groups alleging systematic and gross violations of human rights. If reasonable evidence of a consistent pattern of gross violations is identified, the matter is forwarded to the Commission. But, as with all other mechanisms, the procedure is designed to promote, as a primary course of action, dialogue with States. In the framework of this procedure, the Government concerned has the option to present its views.

"Non-conventional" mechanisms

During the last two decades, individual complaints have generally come to be taken up by the United Nations network of thematic working groups and special rapporteurs, as well as country rapporteurs, put in place to take more vigorous steps toward elimination of heinous human rights. Today, special rapporteurs are on the front lines, investigating and intervening as necessary in individual cases and emergencies.

"Historically, the United Nations did not consider its role to call on Member States to account for human violations in the absence of the treaty body mechanisms, which offered clear standards and mechanisms," says Nigel Rodley, the Special Rapporteur on Torture. "These inhibitions began to erode when the Working Group on Enforced and Involuntary Disappearances, established in 1980, began to take up individual complaints and to seek visits to States."

Blatant violations of human rights taking place in crisis situations around the world often prompt States to call for a more aggressive response by the United Nations. The Commission on Human rights will then appoint a special rapporteur or working group to investigate.

Rapporteurs work in such areas as extrajudicial, summary or arbitrary executions; torture; the independence and impartiality of the judiciary; jurors and assessors and the independence of lawyers; religious intolerance; the use of mercenaries; freedom of opinion and expression; racism, racial discrimination and xenophobia; the sale of children, child prostitution and child pornography; the elimination of violence against women; and the effects of toxic and dangerous products on enjoyment of human rights. There are also special rapporteurs assigned to specific countries: among them Afghanistan, Burundi, Congo, Cuba, Equatorial Guinea, Iran. Iraq, Myanmar, Nigeria, occupied Palestine, Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Rwanda and Sudan.

Special rapporteurs are free to use all resources, including individual communications and reports from non-governmental organizations, in preparation of reports. Much of their research is done in the field conducting interviews with both authorities and victims and gathering on-site evidence whenever possible. Special rapporteurs can also avail an urgent action procedure to intercede with governments on the highest level. From 1992 to 1996 the Special Rapporteur on Summary and Arbitrary executions, for example, made 818 urgent appeals on behalf of more than 6,500 persons to 91 different countries and received replies in roughly half of the instances. The reports of the special rapporteur are made public by the Commission on Human Rights and thus contribute to publicizing violations and the responsibility of Governments.

In 1995-1996, the Special Rapporteur on Torture sent 68 letters to 61 Governments regarding 669 cases, as well as 130 urgent appeals on behalf of nearly 500 people. Forty-two countries responded on 459 of those cases. Among them, for example, were the prosecution by Chile of persons responsible for criminal excesses, reform in the country's penal code and reform of its code of criminal procedure. Following an extensive visit to Pakistan and cooperation with authorities there, the special rapporteur was able to report abolition of corporal punishment and the use of fetters in prisons.

The mandate of the Special Raporteur on Myanmar is to address the human rights situation in the country, follow the question of transferring power to a civilian government, drafting a new constitution, lifting restrictions on personal freedoms and the restoration of human rights. Such a mandate is very sensitive, as it relates to the nature of a Member State's administration and difficult to carry out in the face of Government non-compliance. In effect, the Special Rapporteur brings violations and recommendations regarding that State to the attention of the United Nations, which by adopting a resolution can then attempt to coerce cooperation.

Special rapporteurs submit annual reports to the Commission on Human Rights. These reports are also used by committees in preparation of their discussions with States.

The Changing Practice

Naturally, as mandates have been created or revised to respond to crises, overlaps exist. According to Dr. Alston, "There has been considerable blurring of the distinctions, particularly in the sense of involving treaty bodies in emergency situations, which require dramatic responses not suitable to the means at committees' disposal. Calling in the representatives of Bosnia and Rwanda is questionable because methods of operation are not of the sort that are going to change the situation. Special rapporteurs are in a better position to respond proactively in relation to violations. They can expose and raise the stakes on violating Governments."

In response to a changing world, greater demands from States and the universal recognition of more comprehensively defined rights, the mechanisms established to guarantee the rights defined by the Universal Declaration of Human Rights -- in practice as well as in law -- have become increasingly complex. These mechanisms were created less as part of a plan but rather as needs arose. All efforts were put toward the resolution of human rights crises resulting from war, poverty and oppression. In recent years, the mandates of peace-keeping operations increasingly have included a human rights component, which has frequently been critical to a mission's success. Virtually every United Nations body and specialized agency is involved to some degree in the protection of human rights.

When the Universal Declaration of Human Rights was adopted 50 years ago, although not legally binding, it had a tremendous impact on subsequent debate at the international level, as well as frequently the national level. In some parliaments the Declaration is still cited in the enactment of new legislation. Now, as then, the United Nations is critical in providing an environment for debate, negotiation and study. It has been most effective when engaged with States in long-term efforts to incorporate human rights into national law, in giving voice to non-governmental organizations and in elevating universal awareness about human rights.

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