On the Normative Structure of International Human Rights Treaties Monitoring Mechanisms and Its Legal Challenges
Tu Yunxin *
Abstract: The Charter bodies established under the united Nations Charter and the treaty bodies established on the basis of international human rights treaties constitute the two major means of supervising the implementation of international human rights treaties? The treaty bodies responsible for monitoring the implementation of international human right treaties have gradually formed a four-fold supervision system consisting of state reporting, inter-state complaints, individual complaints and inquiry procedures? These quasi-judicial procedures are responsible for overseeing the implementation of international human right treaties? The practice of treaty body procedures has profoundly affected the development of modern international human rights law and is promoting the improvement of international human right treaty monitoring mechanisms? But due to the constraints of international politics, economic structure and related historical conditions, treaty bodies still face severe challenges? The improvement of the four major procedures will promote the development of the international human rights cause?
Keywords: treaty body · state reporting · inter-state complaint · individual complaint · inquiry procedure
As an ancient Roman saying goes: pacta sunt servanda (agreements must be kept). The implementation of human rights law and the improvement of the monitoring mechanisms based on this legal principle have been core issues in the practice of international human right law since the end of World War II. Focusing on general legal principles and state practice in implementing international human rights treaties, legal experts and scholars have engaged in a heated discussion based on their different perspectives, and one of the highest-profile issues is the operational structure for the monitoring mechanism for such human rights treaties and the related challenges the monitoring mechanism faces. The premise and basis of this thesis has been limited to three relatively independent but interrelated legal issues: First, how do we distinguish the international implementation of human rights law from its domestic implementation? The former is related to treaty law under which States parties are obliged to perform the duties stipulated in international human rights treaties, and the latter concerns the protection of basic human rights enshrined in the constitutions of countries. Second, the issue of implementing international human rights treaties in a broader sense and exploring the monitoring mechanisms set up by human rights treaties. The former relates to issues regarding the conclusion, legal force, interpretation, application and state practice of a treaty in the treaty law framework, while the latter analyzes the issues on the basis, jurisdiction, operation rules, working methods, procedures and measures of monitoring bodies in the legal procedures formulated by international human rights conventions. Third, exploring how human rights are safeguarded globally in a broader sense and the quasi-judicial remedies provided by human rights conventions. The protection of rights, from the perspective of the law, means any right shall be respected and exercised within a legal framework. It also means any right shall not be infringed upon or damaged. The guarantee of rights includes two aspects: exercising rights without impediment and having immediate access to legal remedies when legal rights are violated. 1 Compared with the protection of rights, the right to a remedy will be claimed after legal rights are breached. Or in other words, when the first-class right (the right that has been violated) cannot be exercised, the second-class right will arise. The right to remedy often refers to judicial remedies or quasi-judicial remedies. 2 Given that there is not a unified judicial organ to deal with the disputes over human rights in the international community, the “procedures” in the monitoring mechanism for international human rights treaties are considered a quasi-judicial procedure that shares something in common with political supervision and judicial supervision. 3
Article 1 of the Charter of the united Nations clearly states “that one of the purposes of the United Nations is promoting and encouraging respect for human rights and for fundamental freedoms.” 4 The preamble to the universal Declaration of Human Rights (UDHR) declares, “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” 5 From then on, the international community entered a human rights era. The international Bill of Human Rights consists of the universal Declaration of Human Rights and the two covenants adopted by the UN in 1966 (namely the international Covenant on Economic, Social and Cultural Rights and the international Covenant on Civil and political Rights). 6 Since the international Convention on the Elimination of All Forms of Racial Discrimination was adopted by the General Assembly of the United Nations in resolution 2106 (XX) of 21 December 1965 7 and the first treaty body-the Committee on the Elimination of Racial Discrimination (CERD), was established, currently a dozen treaty bodies responsible for overseeing the implementation of human rights treaties have been set up. We can draw a conclusion from the development course of the ten treaty bodies over the past five decades that the “four procedures” — state reporting, inter-state complaint, individual complaint and inquiry procedures play a core role in monitoring the implementation of international human rights treaties.
This thesis focuses on the “four procedures” in the monitoring mechanism for international human rights treaties and attempts to summarize the common features shared by the nine core human rights treaties in terms of the operation of the monitoring bodies. This thesis also examines the legal basis, legal elements, the jurisdiction of committees, initiating procedures and work methods under the “treaty bodies”, in an effort to systematically identify the challenges facing the monitoring mechanism for human rights treaties and encourage in-depth research on the issues concerned.
I. Introduction to Two Treaty Bodies Involved in Human Rights Monitoring
According to human rights practitioners and scholars, there are nine “core” human rights conventions. 8 In order to ensure these human rights treaties are observed, a corresponding committee of independent experts has been established for each of these treaties to monitor the treaty implementation by States parties. The legal basis for establishing monitoring bodies of human rights conventions is different from that for setting up branches of the United Nations. The establishment of treaty bodies is based on human rights conventions and aims to oversee the implementation of the treaties. Such bodies consist of independent experts that are responsible for reviewing and considering the periodic reports submitted by the state parties on their implementation of a treaty’s provisions, individual complaints and communications. However, Charter bodies are permanent governmental bodies established in line with the Charter of the united Nations. Such bodies consist of representatives from all state countries and the UN’s resolutions are adopted by a simple majority (50 percent of all votes plus one). More information about these two bodies is set out in Table 1.
As a sort of monitoring body for safeguarding international human rights, the current Charter bodies are the Human Rights Council and its subsidiaries. At the beginning of the 21 st century, the Human Rights Council replaced the former United Nations Commission on Human Rights (UNCHR), and its first session took place on June 19, 2006. 9 As the most important intergovernmental body mandated to protect and promote human rights worldwide, the Human Rights Council meets in Geneva 10 weeks a year and is composed of 47 elected UN Member States who serve for an initial period of three years and cannot be elected for more than two consecutive terms. 10 Within the Council, the United Nations established special procedures such as the Universal Periodic Review mechanism, the Advisory Committee and the Special Procedures. The Universal Periodic Review mechanism was established when the Human Rights Council was created in 2006 by the UN General Assembly in resolution 60/251 paragraph 5(e). 11 The Universal Periodic Review mechanism is a State-driven process under the auspices of the Human Rights Council and aims to impartially assess the human rights situation of all UN Member States. Such assessments will be reviewed later by the Human Rights Council. The Advisory Committee was established based on Human Rights Council resolution 5/1 paragraphs 65-84, and is composed of 18 independent experts serving as a think-tank for the Council and who work under its direction. 12 The special procedures are independent human rights experts with mandates to report and advise on human rights from a thematic mandate or mandates perspective, and each new mandate is created through a Human Rights Council resolution. Special procedures mandate holders are made up of special rapporteurs, independent experts or working groups. All of them are prestigious independent experts appointed by the HRC to conduct work voluntarily. 13
Different from the Charter bodies in terms of the establishment mechanisms and legal basis, the treaty bodies play a big role in monitoring the implementation of international human rights law. Currently there are 10 treaty bodies that monitor the implementation and adherence to the core international human rights treaties: the Human Rights Committee (CCPR), the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee against Torture (CAT), the Subcommittee on Prevention of Torture (SPT), the Committee on the Rights of the Child (CRC), the Committee on Migrant Workers (CMW), the Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on Enforced Disappearances (CED). In the field of international human rights law, the main task of the human rights treaty bodies is to oversee the implementation of various human rights. They periodically examine state reports, issue concluding observations on states’ compliance with the treaty, give general comments on the provision of human rights conventions, and deal with individual complaints.
In addition to the above-mentioned Charter bodies and treaty bodies, the Office of the United Nations High Commissioner for Human Rights (OHCHR) is dedicated to implementing the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights held in Vienna in 1993. It was established with the aim of coordinating the United Nations’ human rights activities and serves to provide certain administrative support functions. The High Commissioner for Human Rights is the top official who speaks out for human rights across the whole UN system and has the rank of UN Under-Secretary-General 14 . The OHCHR is headquartered in Geneva and has a liaison office in New York. 15
After the end of World War II, in order to overcome the difficulties in the implementation of the human rights treaties, monitoring mechanisms featuring Charter bodies and treaty bodies were established. The two monitoring mechanisms for treaty implementation cooperate with each other and meanwhile shoulder different responsibilities in carrying out human rights law and achieving corresponding functions, 16 the different legal basis decides the different natures of these two mechanisms. Charter bodies are essential components of the UN system based on the uN Charter and have political and legal functions. However, treaty bodies are “quasi-judicial bodies” based on the core human rights treaties that establish committees of experts to monitor the implementation of the treaties. There are two points worth noting. First, different from other core human rights treaty bodies, the Committee on Economic, Social and Cultural Rights derives its authority from United Nations Economic and Social Council (ECOSOC) instead of the provisions of the treaty that it monitors. Chinese scholars hold that such a difference has made its supervision less effective compared with other treaty bodies. 17 Second, we should uphold the independence of treaty bodies. In order to secure the independence of treaty bodies, the chairpersons of all treaty bodies held the 24th Meeting of Chairpersons in Addis Ababa and discussed and recognized the guidelines on the independence and impartiality of members of the human rights treaty bodies (Addis Ababa guidelines). The principles of independence and impartiality were added to the oath of treaty body members. 18 The principle of independence requires that members not be removable during their term of office, except to the extent that the treaty in question so provides. They are accountable only to their own conscience and the relevant treaty body and not to their State or any other State. 19 A treaty body member shall not be considered to have a real or perceived conflict of interest as a consequence of his or her race, ethnicity, religion, gender, disability, color, descent or any other basis for discrimination as defined in the core international human rights treaties. 20
II. The Normative Structure and Legal Challenges of State Reporting Procedure
In the international community, States are deemed equal just by their status as States under international law and international organizations are not affiliated with governments or a certain organization. Meanwhile, due to the absence of a direct international counterpart of domestic law enforcement agencies to ensure state parties can perform their duties, it has been a long-standing headache to monitor treaty implementation in international human rights law. The State Reporting procedure is an important mechanism for overseeing state parties’ compliance with their treaty obligations, and it has created a set of normative procedures to follow for supervising and implementing human rights treaties. The reporting procedures also mirror the efforts and commitment state parties to respect, protect and exercise the various rights formulated in the treaties they have entered. 21
A. The legal basis of state reporting procedure
The State Reporting procedure means in line with the provisions of the human rights treaties, States parties shall submit periodic reports to corresponding human rights bodies on the State’s legislative, judicial and administrative measures taken to guarantee the rights set out in the treaty. 22 When it comes to the two Covenants (namely the international Covenant on Economic, Social and Cultural Rights (ICESCR) and the international Covenant on Civil and political Rights (ICCPR) ) adopted in 1966 and other core international human rights instruments, the state party’s reporting obligations and reporting procedures are legally binding mechanisms, which means they shall not ignore these legal procedures based on their own preferences, or they will shoulder the international liability of violating the treaty. 23 For example, Article 9 (1) of the Convention on Elimination of All Forms of Racial Discrimination (ICERD) provides that “States parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this Convention: (a) within one year after the entry into force of the Convention for the state concerned; and (b) thereafter every two years and whenever the Committee so requests. The Committee may request further information from the state parties.” 24 Article 16 (1) of the ICESCR provides that “the States parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein.” 25 According to Article 40 (1) of the ICCPR, “The States parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the States Parties concerned; (b) Thereafter whenever the Committee so requests”. 26 More information about other provisions of human rights conventions stipulating the reporting obligations by state parties and the treaty bodies responsible for reviewing such reports could be seen in Table 2. 27
B. The legal elements of the state reporting procedure
1. The requirements for the state reporting procedure
The purpose of the State reporting system is to provide a coherent framework within which States can meet their reporting obligations under all of the international human rights treaties to which they are a party through a coordinated and streamlined process. 28 The reporting process is generally divided into the following parts: setting up an appropriate institutional framework for the preparation of the reports submitted by States parties, collecting data, the drafting and preparation of the report by state parties, and reporting to treaty bodies. The process of drafting and writing a State party’s report is considered a State’s conduct. Meanwhile, such a conduct can represent the State’s stance within the constitutional framework and can absorb and integrate public opinions and appeals from the parliament as well as the whole society. Generally speaking, the State party submits its initial report under the human rights conventions it has ratified, and then periodically submits reports in accordance with the provisions of the relevant treaties to introduce the legislative, administrative and judicial measures adopted by the country with the aim of implementing the treaty. The reporting periodicity varies from treaty to treaty, and the initial reports and subsequent periodic reports of States parties should be carried out in accordance with the requirements of the treaty and the instructions of the treaty bodies.
2. The requirements for the formats of state parties’ reports
Generally speaking, the reports shall be finished in a in a concise and structured way and should not be of excessive length. The reports shall be submitted in one of the official languages of the United Nations (Arabic, Chinese, English, French, Russian or Spanish). According to the existing requirements set out by the OHCHR, common core documents should not exceed 60-80 pages, initial treaty-specific documents should not exceed 60 pages, and subsequent periodic documents should be limited to 40 pages. 29
3. The requirements for the contents of state parties’ reports
As noted above, the reports submitted by a State party to each treaty body must include both the Common Core Documents and the Treaty Specific Documents. At present, the “Common Core Document” in the state party’s report should include: (1) information on the general situation of the reporting State (A. demographic, economic, social and cultural characteristics of the State; B. constitutional, political, legal structure of the reporting State) (2) General framework for the protection and promotion of human rights (C. acceptance of international human rights norms; D. Legal framework for the protection of human rights at the national level; E. Framework within which human rights are promoted at the national level; Reporting process at the national level; G. Other related human rights information); (3) Information on non-discrimination and equality and effective remedies. The Treaty-Specific Documents in the State party’s report should not be duplicated in the Common Core Document but should be based on the general comments of the human rights treaty bodies. The report should contain specific information to elaborate both the de jure and the de facto situation, and introduce the evolving laws and legal practice that affect the enjoyment of the rights recognized by the convention, as well as the information on the specific measures taken to achieve this goal and the progress the State party has made. In addition, the Treaty Specific Document should include the information on the steps taken to address issues raised by the committee in its concluding observations on the State party’s previous report or in its general comments.
C. The legal challenges facing state reporting procedure
In these four procedures of the monitoring mechanisms for international human rights treaties, although the reporting obligation shouldered by States parties is the only mandatory legal procedure, the human rights treaty bodies have been besieged by various challenges, such as capacity building, review cycles and the
subsequent implementation capacity. In terms of the human rights treaty bodies’ capacity and their working mechanisms, now such treaty bodies are restricted by the lack of experts and financial resources and they cannot deal with such a heavy workload. Take the treaty mechanism as an example. By 2011, there were 172 experts working for treaty bodies, and such number only accounts for about 10 percent of the total number of States parties to human rights conventions and their affiliated protocols. Taking this situation into consideration, if every State party would report as per prescribed periodicity, treaty bodies should review an average of 320 State party reports per year. What’s more, treaty bodies also need to review individual complaints as well as inter-state complaints and conduct investigations, they have been overwhelmed for a long time 32 . Speaking of the review cycles, due to the fixed calendar of the sessions, it is difficult for human rights treaty bodies to systematically and carefully review such a large number of State parties’ reports within a short period of meeting twice a year. As a result, some human rights treaty bodies are overloaded. Confronted with the large backlog of the State parties’ reports, they have to extend the review cycles. The original review cycles that lasted four to five years sometimes have been extended to 8-10 years, and even longer. When it comes to the subsequent implementation capacity, the human rights treaty bodies generally urge the States parties to fulfill their treaty obligations by means of “recommendations” after making concluding observations on States parties’ reports. The concluding observations are broad and abstract and they are not legally binding. Moreover, the follow-up implementation of the concluding observations relies heavily on the cooperation of States parties and does not address the issues regarding the breach of treaties and States parties’ non-compliance.
3. The requirements for the contents of state parties’ reports
Both the Common Core Document and the Treaty Specific Document form an integral part of each State party’s reports. The Common Core Document refers to a collection of information of a general and factual nature relating to the implementation of the treaties to which the reporting State is party and which may be of relevance to all or several treaty bodies. 30 The Treaty Specific Document is to introduce information relating to the implementation of the treaty which the relevant committee monitors. Specifically, the Treaty Specific Document should contain recent developments in law and practice affecting the enjoyment of rights under that treaty should be included, as well as a response to issues raised by the committee in its concluding observations or
its general comments. 31
As noted above, the reports submitted by a State party to each treaty body must include both the Common Core Documents and the Treaty Specific Documents. At present, the “Common Core Document” in the state party’s report should include: (1) information on the general situation of the reporting State (A. demographic, economic, social and cultural characteristics of the State; B. constitutional, political, legal structure of the reporting State) (2) General framework for the protection and promotion of human rights (C. acceptance of international human rights norms; D. Legal framework for the protection of human rights at the national level; E. Framework within which human rights are promoted at the national level; Reporting process at the national level; G. Other related human rights information); (3) Information on non-discrimination and equality and effective remedies. The Treaty-Specific Documents in the State party’s report should not be duplicated in the Common Core Document but should be based on the general comments of the human rights treaty bodies. The report should contain specific information to elaborate both the de jure and the de facto situation, and introduce the evolving laws and legal practice that affect the enjoyment of the rights recognized by the convention, as well as the information on the specific measures taken to achieve this goal and the progress the State party has made. In addition, the Treaty Specific Document should include the information on the steps taken to address issues raised by the committee in its concluding observations on the State party’s previous report or in its general comments.
C. The legal challenges facing state reporting procedure
In these four procedures of the monitoring mechanisms for international human rights treaties, although the reporting obligation shouldered by States parties is the only mandatory legal procedure, the human rights treaty bodies have been besieged by various challenges, such as capacity building, review cycles and the
subsequent implementation capacity. In terms of the human rights treaty bodies’ capacity and their working mechanisms, now such treaty bodies are restricted by the lack of experts and financial resources and they cannot deal with such a heavy workload. Take the treaty mechanism as an example. By 2011, there were 172 experts working for treaty bodies, and such number only accounts for about 10 percent of the total number of States parties to human rights conventions and their affiliated protocols. Taking this situation into consideration, if every State party would report as per prescribed periodicity, treaty bodies should review an average of 320 State party reports per year. What’s more, treaty bodies also need to review individual complaints as well as inter-state complaints and conduct investigations, they have been overwhelmed for a long time 32 . Speaking of the review cycles, due to the fixed calendar of the sessions, it is difficult for human rights treaty bodies to systematically and carefully review such a large number of State parties’ reports within a short period of meeting twice a year. As a result, some human rights treaty bodies are overloaded. Confronted with the large backlog of the State parties’ reports, they have to extend the review cycles. The original review cycles that lasted four to five years sometimes have been extended to 8-10 years, and even longer. When it comes to the subsequent implementation capacity, the human rights treaty bodies generally urge the States parties to fulfill their treaty obligations by means of “recommendations” after making concluding observations on States parties’ reports. The concluding observations are broad and abstract and they are not legally binding. Moreover, the follow-up implementation of the concluding observations relies heavily on the cooperation of States parties and does not address the issues regarding the breach of treaties and States parties’ non-compliance.
III. The Normative Structure and Legal Challenges of Inter-State Complaint
A. The legal basis of inter-state complaint procedure
The Inter-State Complaint procedure, 33 as an implementation mechanism of international human rights conventions, means that, in accordance with the provisions of the convention, a State party has the right to submit a complaint to the convention body (or the committee) alleging that another State party has not fulfilled its obligations under the convention 34 . The legal basis for the establishment of the Inter-State Complaint procedure and the treaty body on which it is based can be seen in Table 3.
B. The legal elements of inter-state complaint procedure
International human rights conventions embody the public will of States parties, and violations of international human rights conventions violate the “consent” between these States parties in nature. At this point, international human rights conventions have no difference from other treaties. In terms of the roles played by the Inter-state Complaint procedure in promoting the implementation of human rights treaties by state parties, the procedure establishes a confrontational mechanism for a State party to supervise the implementation of the human rights conventions of other States parties.
Different from the State Reporting procedure, in most cases, the Inter-State Complaint procedure is an “optional procedure”. Whether the treaty bodies (or relevant committees) established by human rights conventions can exercise jurisdiction plays the key role in the effective operation of the Inter-State Complaint procedure. The jurisdiction exists only to the extent that both countries that are parties to a dispute have made a declaration via a statutory procedure accepting the competence of a treaty body (or a relevant committee) in this regard, which is also the precondition for relevant treaty bodies (or committees) to investigate the case, issue reports or review whether the allegations of human rights violation is established based on the state consent.
After the procedure for Inter-state Complaint is filed, the treaty bodies (or relevant committees) have the authority to handle the controversies over the human rights treaties, and the state parties in disputes shall shoulder the obligation to cooperate with the investigations and reviews conducted by treaty bodies. In general, treaty bodies (or relevant committees) may, on the basis of the State party’s observations and other relevant information available to it, decide to designate one or more of its members to conduct an inquiry and report urgently to the Committee. Where warranted and with the consent of the State party concerned, an inquiry may include a visit to its territory.
C. Legal challenges facing inter-state complaint procedure
Judging from the international practice of Inter-State Complaint procedures, States parties not only have legal disputes over human rights conventions, but also the political controversy over human rights is often sparked from the perspective of international relations. In terms of the interpretation of human rights conventions, although a State has entered into conventions with other countries based on State consent, and has met its constitutional requirements and completed the process for domestic approval of ratification, it is a bigger legal issue that States parties usually have different interpretations of specific provisions when they perform their obligations contained in the convention. International politics also plays a big role in the application of the Inter-state complaint procedure. In practice, most countries will not resort to these complaint procedures, and the inter-State complaint procedures in many human rights conventions have never been initiated. The reason is that the complaint procedure is likely to be “politicized”, thus seriously affecting the economic and trade exchanges and friendly relations between two countries. Governments have always been wary of the Pandora’s Box that nearly all States parties will not risk opening. 35
The disputes between States parties sparked after the conclusion of a human rights convention are, as a matter of fact, legal disputes, even if the political nature of such disputes is difficult to avoid. In the course of development, international human rights law has not given up its efforts to establish a dispute settlement mechanism. Legal scholars have been discussing whether to establish a World Court of Human Rights. Although we are working hard to that end, we have to figure out a feasible approach and set up a sound institution to address such a practical issue. Therefore, the establishment of a dispute resolution mechanism under the international human rights law concerning the interpretation or application of the convention must rely on the existing “institutional facilities” in the international community, including negotiation, arbitration and submitting to the international court. For example, Article 22 of the international Convention on the Elimination of All Forms of Racial Discrimination, Article 29 of the Convention on the Elimination of All Forms of Discrimination Against Women, Article 30 of the Convention Against Torture and Other Cruel, inhuman or Degrading Treatment or punishment, Article 92 of the Convention on the protection of the Rights of Migrant Workers and Members of their Families and Article 42 of the international Convention for the protection of All persons from Enforced Disappearance allow States parties to first resolve disputes concerning the interpretation or application of these conventions through negotiations. Arbitration could be used if the negotiations fail. A country involved in a dispute may submit the dispute to the International Court of Justice within six months of the parties not agreeing on arbitration clauses. A State party may exclude themselves from such a procedure by issuing a declaration at the time of ratification or accession to a treaty, in which case they are not entitled to file complaints against other state parties on the basis of the principle of reciprocity. 36
IV. The Normative Structure and Legal Challenges in Individual Complaint Procedure
A. The legal basis of individual complaint procedure
The Individual Complaint procedure, 37 also known as Individual Communication procedure, means that individuals and groups of individuals in a state party to human rights conventions can complain to the human treaty bodies or committees when their rights enshrined in such conventions are violated 38 . The establishment of the Individual Complaint procedures is a noticeable contribution and progress in modern international law. It enables individuals or groups to be regarded as the subject of international law under specific conditions. International human rights law has opened up a new territory within the traditional legal framework, that is, sovereign States must fulfill their minimum international obligations to protect the rights of the people living in their territories.
In the Individual Complaint procedure, the treaty bodies established by the core human rights conventions can review individual complaints or communications under certain conditions. Currently, seven human rights treaty bodies (Human Rights Committee, Committee on the Elimination of Racial Discrimination, Committee against Torture, Committee on the Elimination of Discrimination against Women, Committee on the Rights of Persons with Disabilities, Committee on Enforced Disappearances and Committee on Economic, Social and Cultural Rights) can, under certain circumstances, accept and review individual complaints or communications, while the individual complaint mechanisms of the other two treaty bodies (the Migrant Workers Committee and the Committee on the Rights of the Child) have not yet entered into force. 39 We can believe that with the further development of human rights law, more and more countries will accede to a series of human rights conventions, and the States parties will have less reservations about human rights treaties. The legal basis for the establishment of Individual Complaint procedure and the treaty bodies on which it is based can be seen in Table 4.
B. Legal elements of individual complaint procedure
1. The legal standing (locus standi) of individuals in the individual complaint procedure
In international human rights law, any individual has to meet strict requirements for initiating an individual complaint procedure under human rights conventions. Anyone who meets certain conditions can submit an individual complaint procedure to the treaty body in line with the provisions of the convention. An individual complaint is a sort of complaint filed by an individual (or organization) against the government of a State party. Such a complaint procedure is a quasi-judicial procedure and will give rise to confrontation between victims and the state party to some extent. 40 If a human rights treaty body can handle the individual complaint, it must carefully examine the qualifications of the victim.
Any individual (or organization) who files a complaint against a State party based on one of the nine core human rights conventions needs to prove that his rights protected by international human rights conventions have been violated, and such violation is caused by the State party’s breach of the obligations formulated in the convention. At the same time, initiating an individual complaint procedure must meet two conditions. First, the requirements for States parties. The State that is alleged to violate the victim’s human rights must be a State party to the human rights convention. The State party can undertake the obligations under the human rights convention by ratifying or acceding to relevant human rights treaties. In such a procedure, the State party is alleged to have violated the rights recognized or guaranteed by the human rights treaty. Second, States parties to the treaties must recognize the competence of the committees monitoring the implementation of the treaties to receive and consider individual complaints.
A complaint to a committee needs to be presented by an individual (or an organization) in a written form, or other easy-to-read formats that can be transferred to other state parties. Only communications presented in one of the working languages used by the treaty body secretariat can be accepted. For example, according to the Optional protocol to the Convention on the Rights of persons with Disabilities, the communi- cation to the Committee on the Rights of Persons with Disabilities shall be in English, French, Russian and Spanish. 41 Currently, the human rights treaty bodies are working to apply all of the official languages of the UN to individual complaints procedures, and as the capacity of treaty body institutions is further developed, more languages will be permitted to be used in individual complaint procedures. Filing an application to the treaty body in national languages is a right worth recognizing and guaranteeing by international human rights law. If an individual’s rights in a State party are seriously violated and the official language of the State party is not the official language of the United Nations or the working language of the treaty body and its secretariat, even if it is theoretically possible to settle the dispute through translation, the individual’s convenience and possibility in enjoying the rights of the convention are greatly reduced due to language barrier. Therefore, the right to use a particular language is also a fundamental right affirmed by international human rights law.
2. Admissibility of individual complaint
The successful initiation of various legal procedures and quasi-legal procedures under international human rights law lies in satisfying the strict jurisdictional elements and the admissibility conditions of the dispute. The issue of jurisdiction and the issue of admissibility are two interrelated issues with different characteristics. The jurisdiction focuses more on the justification for a dispute-settlement body to exercise its authority. In other words, under what conditions, can the dispute-settlement body properly handle a dispute? The admissibility focuses more on dealing with issues on the legal standing of the parties in the dispute, the time when the violation happens, whether local remedies have been exhausted, whether reliable evidence is provided, and stresses that international dispute settlement bodies can handle a dispute without abusing international dispute resolution procedures.
If individuals can file an individual complaint without satisfying strict admissibility conditions, individuals are likely to skip the domestic legal procedures and directly resort to the international dispute settlement body. On the one hand, an astonishing number of disputes will pour in; on the other hand, the international dispute settle- ment body may become the appeal body of the domestic constitutional body, which will significantly reduce the legitimacy of the international dispute settlement body. Practically speaking, international dispute settlement bodies will be overwhelmed by the endless disputes. Individuals (or organizations) must strictly follow the spirit and principles of human rights treaties to initiate individual complaint procedures to human rights treaty bodies. In general, individual complaints must meet the following admissibility conditions.
First, the complainant must have victim status. 42 Generally speaking, the complainant must be the victim, which means the complainant is an individual or organization that has suffered from the damage as a result of a violation of the convention by the State party. It has to be shown that the alleged victim is personally and directly affected by the law, policy, practice, act or omission of the State party which constitute the object of the complaint. In certain circumstances, if the complaining party is legally a representative of the victim or if such complaint is authorized by the victim, the treaty body may also accept the complaint. The issue of “actiopopularis” sparks more controversies. In terms of most of the individual complaint mechanisms of international community, if the parties only abstractly question specific laws, a State party’s policies or practices rather than proving how the alleged victims are affected, such complaint will be denied. In theory and practice, the issue of “actiopopularis” has been frequently put on the agenda. At present, some regional human rights guarantee mechanisms have recognized “actio popularis”, such as the African Charter on Human and National Rights (1981) 43 . Under the African Human Rights Protection Mechanism, “actio popularis” was acknowledged in the case of Institute for Human Rights and Development in Africa v.Angola. 44
Second, the complainant must exhaust the domestic remedies. The exhaustion of local remedies as a universal legal principle in international human rights law means that the complainant must exhaust all local legal remedies within the state party in order to submit the dispute to the human rights treaty body for ruling. In general, the exhaustion of local remedies means that the complainant has exhausted all of the domestic constitutional procedures and his rights protected by human rights conventions still cannot be remedied. At this time, international human rights law entitles the complainant to file a complaint to international agencies. Under the rule of law at domestic or international level, some judicial decisions are the final ruling and such judgments are not allowed to appeal. The exhaustion of local remedies usually refers to the exhaustion of a court of final appeal in the State party, and such a court sometimes refers to the Supreme Court and sometimes the constitutional court.The principle of exhaustion of local remedies should be observed and researched in the context of a country’s constitutional structure. Legal rules also have some specific exceptions that can be justified. The exception to the rule of exhaustion of local remedies means that when proceedings at the national level have been unreasonably prolonged, or the remedies are unavailable or would plainly be ineffective, the complainant can directly submit his or her complaint to the human rights treaty body. In this case, the complainant bears the burden of proof. A well-known example in recent years is the France’s ban on wearing the burqa in public places and a human rights lawsuit against the ban on face covering was filed. In the case of SAS v. France, 45 the French Senate passed a bill that criminalized anyone wearing clothing designed to conceal the face in public on September 14, 2010. A Muslim woman challenge the legitimacy of the ban and brought the case to the European Court of Human Rights (ECtHR). Given that the ban had passed the constitutional constitution of the French Constitutional Council before it came into force, the complainant directly submitted the dispute on the right to equality and religious freedom to the ECtHR, which was accepted by ECtHR on the basis of exceptions for exhaustion of local remedies.
Third, the complaint must be filed within a reasonable period of time. Late justice is not justice. Legal disputes generally have deadlines, and individual complaint procedures must also follow strict time-bound requirements. Some human rights treaty bodies require that complaints should be filed within six months of exhaustion of local remedies, such as Article 14 (5) of the international Convention on the Elimination of All Forms of Racial Discrimination, “In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months.” Some human rights treaty bodies provide that a complaint could be filed within a period of more than six months. For example, Article 3 (5) of the Optional protocol to the international Covenant on Economic, Social and Cultural Rights states that “The Committee shall declare a communication inadmissible when (a) It is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit.” Human rights institutions have also set time limits for responses made by States parties, and most committees require States parties to provide advice within six months of being notified of the complaint. The State party may challenge the admissibility of the complaint by presenting its views in the first two months of such a period. The complainant has the right to comment on the State party’s opinions within a certain period.
Fourth, the communication must be admissible ratione materiae. The individual complaint procedure requires that a state party’s alleged violation must be related to a right protected by the treaty. For example, if the complainant filed a complaint under the Optional protocol to the international Covenant on Civil and political Rights, and he/she could not claim that the property rights were violated because the Optional protocol Convention did not protect the right. The committee is competent to consider possible violations of the rights guaranteed by the treaties concerned, but not to act as an appellate instance with respect to national courts and tribunals. They cannot, in
principle, examine the determination of the administrative, civil or criminal liability of individuals, nor can they review the question of innocence or guilt.
Fifth, communications must not be manifestly ill-founded. The complaint must demonstrate prima facie evidence to prove the State party’s violation of the convention. In other words, the materials submitted by the complainant must be sufficiently substantiated. Generally speaking, these evidence materials should not be based solely on complainant’s subjective speculation or news reporting. In some cases where the evidence of the complaint is not sufficiently substantiated, the committee will not accept an individual complaint based on an unsubstantiated allegation. Due to the danger of abusing the individual complaint procedure, the treaty body generally refuses to accept complaints about trivial matters, unreasonably troublesome, filing complaints by improper complaint procedures, and repeated complaints. In practice, the complainant or the lawyer he or she hires must be able to prove that the claim has concrete evidence.
3. The interim measures in individual complaint procedure
Some Committees may, at any stage before the case is considered, issue a request to the State party for interim measures in order to prevent any irreparable harm to the author or alleged victim in the particular case. Typically, such requests are issued to prevent actions that cannot later be undone, for example the execution of a death sentence or the deportation of an individual facing a risk of torture. A decision to issue a request for interim measures does not imply a determination on the admissibility or the merits of the communication but it must have a reasonable likelihood of success on the merits for it to be concluded that the alleged victim would suffer irreparable harm. If the complainant wishes the committee to consider a request for interim measures, he/she should state it explicitly, and explain in detail the reasons why such action is necessary. It takes several working days for a committee to process a request for interim measures. Any such request should therefore reach the Secretariat as early as possible before the action sought to be prevented could materialize. A committee may withdraw a request for interim measures on the basis of information received from the state party and the author of the complaint suggesting that such measures are no longer required.
4. Treaty bodies considering an individual complaint on its merits
Looking at the operation of the ten treaty bodies, most human rights treaty bodies consist of 10-23 independent experts, and they meet several times a year to receive complaints on violations of the rights protected by conventions within their jurisdiction. For example, the States parties to the Optional protocol to the Convention on the Rights of persons with Disabilities recognize the competence of the Committee on the Rights of Persons with Disabilities to handle individual complaints. The Committee is composed of 18 independent experts and meets twice a year to accept complaints from victims alleging that their rights have been violated by state parties within their jurisdiction.
Treaty bodies, including the committees, consider complaints only on the basis of the written information supplied by the complainant and the State party. The course of consideration of the complaint is a quasi-judicial process. Accordingly, it has not been the practice to receive oral submissions from the parties or audio or audio-visual evidence (such as audio and video files). Nor do the committees go beyond the information provided by the parties to seek independent verification of the facts. At present, with the improvement of individual complaint mechanisms, some committees (such as the Committee against Torture and the Committee on the Elimination of Racial Discrimination) have provisions for oral arguments in individual complaint procedures. I am glad to see that the United Nations Human Rights Committee adopted its Guidelines on Making Oral Comments Concerning Communications at its 120 th Session. 46 According to the guidelines, the Human Rights Committee invites the parties to provide oral comments on major legal and factual disputes concerning the interpretation and application of the Convention. For example, at the 121 st session of the Human Rights Committee, the committee held its first hearing on the case of “Miller and Carroll v. New Zealand”, 47 the author’s attorney was present, and the state party’s representatives participated in the videoconference. In accordance with the guidelines on making oral comments concerning communications (CCPR/C/159/), the meeting where the parties make oral comments is a closed session. 48 That oral comments are accepted, and the parties are allowed to hire lawyers to be present during the consideration process reflects the trend that both written format and oral comments are accepted when settling disputes in international human rights law, which is good for the debates and confrontation in individual complaint procedures.
C. The legal challenges facing individual complaint procedure
The establishment of individual complaint procedure is deemed to be “a milestone in the history of the universal human rights system”. 49 Through accumulating a great number of quasi-judicial cases, it seeks to promote the development of international human rights law by establishing a consistent rule of case law. The current challenge to human rights treaty bodies lies in whether they can develop a convincing jurisprudence related to the rights under human rights conventions. The development of this jurisprudence is restricted by two factors. The first issue is concerning human rights bodies’ competence in interpreting the rights under the conventions, and the other one is related to their capacity to deal with individual communications. In general, when treaty bodies consider individual complaints, they will meanwhile consider the admissibility and substance of the complaint. In this case, the above-mentioned procedure can be applied only after the communication has been received and transferred to the State party concerned and has been given an opportunity to comment within a certain time frame. The complainant then has the opportunity to comment on the State party’s observations, after which the admissibility and substance of the case can be considered by the committee. However, sometimes the committee can consider its admissibility first. In such a case, if the committee declares that the complaint is admissible, the State party will be required to submit the substantial materials of the case. The complainant has an opportunity to comment on the substantial materials submitted by the State party in any cases. The treaty bodies (each committee) make a quasi-judicial decision on the basis of their own independent judgment, and each member has an equal vote. However, if the human rights treaty body overly expands its power in the individual complaint procedure and makes explanations and opinions unacceptable to the state party, it will not only affect the effectiveness and authority of the committee itself, but also produce negative influence on the fulfillment of the purpose of the human rights convention and the enjoyment of the protected rights. 50
The capacity of human rights treaty bodies is constrained by human resources and financial support in dealing with individual complaints or communications. How to deal with a large number of individual complaints and communications from different state parties is a real challenge for human rights treaty bodies.
According to the individual complaints under the Optional protocol to the international Covenant on Civil and political Rights, 51 the Human Rights Committee issued a report at the end of the 122 nd session of the Human Rights Committee on April 6, 2018. The report summarizes the handling of individual complaints and com-munications by the Human Rights Committee during the 40 years from 1977 to 2017. According to the report, the Human Rights Committee has registered 3,162 communications involving 92 States parties for consideration over the past 40 years, including 222 communications registered during the reporting period. 52 The details of the registered 3,162 communications are as follows: According to the Article 5 (4) of the First Optional Protocol to the International Covenant on Civil and Political Rights, 1,325 communications were adopted after the review, and 1,061 were found to be in violation of the Convention; 697 were dismissed; 437 were discontinued or withdrawn; 703 were closed. The report of the 122 nd Session of the Human Rights Committee further conducted statistics of the individual complaints reviewed by the committee over the past seven years, as shown in Table 5.
Through a statistical analysis of the individual complaints under the Optional protocol to the international Covenant on Civil and political Rights, we can clearly see that 92 of the 116 States parties have been involved in the individual complaints handled by the Human Rights Committee. The “case burden” shouldered by the committee has been increasing year by year. With the introduction of oral comments, the committee’s ability to handle the backlog will be further worsened unless the Secretariat input more manpower in the handling of individual communications. 54
V. The Normative Structure and Legal Challenges of Inquiry Procedure
A. The legal basis of inquiry procedure
The Inquiry Procedure means that when a committee receives reliable information indicating that the rights contained in the convention it monitors are being systematically violated by a State party, the human rights treaty body may decide toassign one or more members to conduct investigation on such allegation. For example, Article 8 of the Optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women provides that “If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.” In accordance with Article 11 and 12 of the Optional protocol to the international Covenant on Economic, Social and Cultural Rights, “If the committee receives reliable information indicating grave or systematic violations by a State party of any of the economic, social and cultural rights set forth in the Covenant, the committee shall invite that State party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.” Besides, “Taking into account any observations that may have been submitted by the State party concerned as well as any other reliable information available to it, the committee may designate one or more of its members to conduct an inquiry and to report urgently to the committee. Where warranted and with the consent of the State party, the inquiry may include a visit to its territory.” The legal basis for the establishment of the inquiry procedures and the names of the treaty bodies supporting such procedures are shown in Table 6.
B. The legal elements of inquiry procedures
The precondition for initiating the inquiry procedures is that the State party accepts the provisions on investigation procedures contained in the convention, either expressly or impliedly. In other words, the treaty body must determine which countries can be investigated before the inquiry procedure is initiated.
The procedure may be initiated if the treaty body receives reliable information indicating that the rights contained in the convention it monitors are widely violated by the state party. Generally speaking, treaty bodies will invite state parties to submit information and cooperate with them to investigate such allegations. The treaty body may appoint one or more members to conduct an investigation and report to the committee in a timely manner based on the State party’s observations and other relevant information obtained. Where warranted and with the consent of the state party concerned, an inquiry may include a visit to its territory. The findings of the member(s) are then examined by the committee and transmitted to the state party together with any comments and recommendations. The state party is requested to submit its own observations on the committee's findings, comments and recommendations within a specific time frame (usually six months) and, where invited by the committee, to inform it of the measures taken in response to the inquiry. The inquiry procedure is confidential, and the cooperation of the state party shall be sought at all stages of the proceedings. At present, the academic circles generally believe that the inquiry procedure in international human rights law is a quasi-judicial procedure with the characteristics of being independent, supportive, initiative and confidential. Besides, the alleged violation is serious, and the procedure needs the cooperation from the state party alleged to be violating rights under a Convention. 55 For example, Sri Lanka acceded to the Convention against Torture and Other Cruel, inhuman or Degrading Treatment or punishment in 1994, and on July 21, 1998, five non-governmental organizations based in London, namely the British Refugee Council, the Medical Fund for the Treatment of Torture Victims, the Refugee Law Centre, the Immigration Law Practitioners Association and the Refugee Law Group submitted information to the Committee against Torture on allegations of systematic torture in Sri Lanka. The first issue dealt with by the committee was the obligations of Sri Lanka. The committee confirmed that Sri Lanka did not declare that it did not recognize the competence of the committee under Article 20 when it acceded to the Convention. Accordingly, the committee found that the inquiry procedure stipulated in Article 20 of the Convention can be applied to Sri Lanka. The committee further conducted a preliminary review of the relevant information and considered the information to be reliable, thus initiating the inquiry procedure. After getting the consent of the Sri Lankan government, the committee visited Colombo, the capital of Sri Lanka, from August 19 to September 1, 2000. The committee concluded that the legal, administrative and other measures taken by Sri Lanka lacked effectiveness. 56
C. Legal challenges facing inquiry procedure
The inquiry procedure provides a fourth quasi-judicial procedure in addition to the State reporting procedure, the inter-State complaint procedure, and the individual complaint procedure for the implementation of international human rights conventions, which changed the situation that the committee’s previous similar practices lacked a clear legal basis. Besides, the application scope of the inquiry procedures has been extended from the subsequent actions after the State reporting procedure is initiated to a broader area. 57 However, in terms of the implementation of the monitoring mechanism for international human rights, the inquiry procedures possibly are faced with greater challenges.
First, the coverage and application rate of the inquiry procedure in the core inter- national human rights conventions is insufficient. Among the nine-core international human rights conventions, only six conventions or their optional protocols contain inquiry procedures, which have the lowest rate of application compared to the State reporting procedure, inter-State complaint procedure, and individual complaint procedure. Some scholars point out that the inquiry procedure is only applicable to serious or large-scale cases of continuous human rights violations, so the application rate is the lowest. However, this view confuses the application rate of the inquiry procedure in the core international human rights conventions and the rate in some international human rights convention. The crux of the problem lies in the possibility that any of the rights set forth in any of the core international human rights conventions may be seriously or massively violated. Second, as an optional procedure, a State party can choose to use or not to use such a procedure, which reduces the credibility and legitimacy of the quasi-judicial procedure. Compared with the State reporting procedure, the inquiry procedure is an optional procedure whereby States parties can declare whether to accept the investigative power of human rights treaty bodies at all stages of the signing, ratification, accession and implementation of human rights treaties. Compared with inter-State complaint and individual complaint procedures, the initiation of the inquiry procedure is determined by the human rights treaty body at its own discretion. In other words, the human rights treaty body has the discretion on whether to initiate the inquiry procedure. The core question is whether the human rights treaty body can decide whether to initiate the procedure based on what kinds of “standards” or “criteria”. When faced with “serious or large-scale continuous human rights violations”, human rights treaty bodies are more likely to start the procedure taking political, economic, diplomatic or international relations into consideration. In the absence of a standard of recognition of “severe or large-scale cases of grave human rights violations”, the initiation of the inquiry procedure relies solely on the almost unrestricted “discretion” owned by human rights treaty bodies. The credibility and legitimacy of the quasi-judicial procedure will be questioned by poor countries. Third, the imple-mentation of the inquiry procedure heavily relies on the permission and cooperation of the State party. Confronted with the most serious or large-scale human rights violations, human rights treaty bodies rely not only on NGO reports but also on field investigations. Whether the field investigation can be carried out smoothly depends on the state party’s permission and cooperation. This makes it very likely that the State party will refuse to cooperate with the human rights treaty body’s investigation based on the sovereign defense. Thus, it will be difficult to decide whether the “serious or large-scale continuous human rights violations” really exist and the inquiry procedure
can hardly function.
VI. Conclusion
“The life of law lies in its implementation.” The implementation of human rights treaties has always been one of the core issues in the development of international human rights law. Since the 1960s, more than ten treaty bodies established by the UN system to oversee the implementation of international human rights treaties. The monitoring bodies under international human rights treaties have gradually formed a four-fold procedure consisting of state reporting procedure, inter-State complaint procedure, individual complaint procedure and inquiry procedure. Although the four procedures cannot cover all of the monitoring mechanism for international human rights treaties, they are generally regarded by the international community as the four most important quasi-judicial procedures.
These four procedures are realistic and feasible mechanisms for the international community to monitor the implementation of international human rights treaties within the existing political and legal framework. These procedures are key mechanisms for maintaining the existing human rights treaty system. They intend to supervise the implementation of core international human rights treaties through an independent and professional mechanism. This has led to the development of institutionalism of human rights protection. In other words, we can regulate the conducts of States parties, promote the fulfillment of human rights values and human rights protection in international community by establishing sound institutions and rules. Faced with various legal challenges and the realistic difficulties in the operation of human rights treaty bodies, the international community also realized what kinds of roles these rules have played in the international political and economic structure. On the one hand,treaty bodies must adhere to and strengthen the democratic legitimacy of these mechanisms, and properly handle the relationship between the interpretation made by the committees and the interpretation given by state parties in terms of the interpretation authority and treaty interpretation’s scope. On the other hand, treaty bodies must also strengthen their institutional capacity and constantly improve the effectiveness and feasibility in their daily operation from the aspects of human resources, financial resources, working mechanisms and workloads. Due to the constraints of international politics, economic structure and related historical conditions, treaty bodies still face serious challenges in the journey of building an international human rights legal order in peacetime. However, the improvement of the four above-mentioned procedures will promote the advancement of human society towards the vision pictured in the universal Declaration of Human Rights.
(Translated by YiN Tao)
* TU Yunxin(涂云新), Doctor of Law, Lecturer at the Law School of Fudan University and Researcher at the University’s Human Rights Research Center (one of the National Bases for Human Rights Education and Training). This thesis was funded by the 2016 Shanghai Philosophy and Social Science Program (No: 2016WJW005).
1. Yang Chunfu, introduction to the Law philosophy of Rights (Nanjing: Nanjing University Press, 2000), 162.
2. Wang Fangyu, Research on Economic Rights from the perspective of Human Rights (Beijing: Peking University Press, 2015), 127.
3. Wan Exiang and Chen Jiande, “On the Quasi-Judicial Supervision Mechanism of International Human Rights Treaties”, Wuhan university Journal (philosophy and Social Sciences) 6 (1997): 19-20.
4. Article 1 (3), Charter of the united Nations, June 26, 1945, 59 Stat. 1031, T. S. 993, 3 Bevans 1153, entered into force October 24, 1945.
5. Preamble, Universal Declaration of Human Rights, G.A.Res.217A (I), U.N. Doc. A/810, 71 (1948); (The Chinese version used in this book is the 1970 version of the UN’s official publication.) [Unless otherwise stated, the conventions, legal texts, and government reports in this article are based on the original of the official publication. To avoid dissent and disagreement, the author’s text is mainly adopted with the translated text as supplement.] In addition, UN documents have document numbers, which are unique identifiers for each document. Each document number consists of letters and numbers, indicating the institution that submitted the document or the institution that issued the document. For example, the format of the Security Council resolution is as follows: S/RES/ [serial number]/[year].
6. Intemational Covenant on Economic, Social and Cultural Rights (ICESCR), G.A.Res.2200A (XXI), 21U.N.GAOR Supp. (No.16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S.3, entered into force Jan.3, 1976; international Covenant on Civil and political Rights (iCCpR), G.A.Res.2200A (XXI), 21 U.N.GAOR Supp.(No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.171, entered into force March 23, 1976.
7. international Convention on the Elimination of All Forms of Racial Discrimination, G.A.res.2106 (XX), Annex,20U.N.GAOR Supp. (No.14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S.195, entered into force January 4, 1969.
8. The nine core international human rights conventions are: (1) International Convention on the Elimination of All Forms of Racial Discrimination; (2) International Covenant on Civil and Political Rights; (3) International Covenant on Economic, Social and Cultural Rights; (4) Convention on the Elimination of All Forms of Discrimination against Women; (5) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (6) Convention on the Rights of the Child; (7) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (8) International Convention for the Protection of All Persons from Enforced Disappearance; (9) Convention on the Rights of Persons with Disabilities.
9. UN/Doc. A/RES/60/251 (2006).
10. The Council consists of 47 Member States, each of which is elected by the General Assembly by secret ballot and is directly elected by a majority of the Member States; the membership should be based on equitable geographical distribution, and the seats are distributed among the various regional groups as follows: Group of African States, 13; Group of Asian States, 13; Group of Eastern European States, 6; Group of Latin American and Caribbean States, 8; Group of Western European and Other States, 7; The members of the Council shall serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms. UN/Doc.A/RES/60/251 (2006), para. 7.
11. U.N. Doc. A/RES/60/251 (2006), para.5. In the context of the universal periodic review mechanism, each review cycle is four and a half years, during which the human rights records of all United Nations Member States are subject to review. The working group meets three times a year for two weeks, that is, 14 meetings are held during the entire review cycle. As of the end of 2019, the Human Rights Council has been and is undergoing three rounds of deliberations, namely the first round of review (2008 to 2011), the second round of review (2012 to 2016), and the third round of review (2017 to 2021).
12. U.N. Doc. A/HRC/RES/5/1, para.65-84. The committee consists of 18 independent experts from different professional backgrounds representing the world’s different regions (five in Africa and five in Asia, two in Eastern Europe, three in Latin America and the Caribbean, three in Western Europe and other countries). Experts are nominated by governments and elected by the council. For example, some of the existing members include Liu Xinsheng (China, 2019); Ajay Malhotra (India, 2020); Xiaoyanyu (Japan, 2019). The year in brackets is the expiration time of the term. Since 1984, China’s Gu Yigu, Tian Jin, Fan Guoxiang, Chen Shiqiu, and Zhang Yishan have served as experts in the agency. Chinese expert Liu Xinsheng was elected as a member of the advisory committee in September 2016 and will serve until September 2019.
13. As of August 1, 2017, the Human Rights Council’s special procedures include a total of 44 thematic man- dates and 12 Country mandates.
14. UN Doc. A/RES/48/141 (1993).
15. In October 1997, the 52 nd UN General Assembly adopted the scheme proposed by the United Nations Secretary-General Kofi Atta Annan (1938-2018) on the reorganization of the United Nations Human Rights Secretariat. The United Nations Centre for Human Rights has been integrated into the Office of the United Nations High Commissioner for Human Rights, collectively known as the Office of the United Nations High Commissioner for Human Rights to deal with United Nations human rights issues. It is headquartered in Geneva and has an office at the United Nations Headquarter in New York. The UN High Commissioner is appointed by the UN Secretary-General and approved by the UN General Assembly. The term of the Human Rights High Commission is four years and can be re-elected once. The first human rights commissioner is Jose Ayala Lasso (Ecuador), and Zeid Ra’ad Zeid Al. -Hus-sein, Jordanian, is the sixth human rights commissioner serving his term from 2014 to 2018. On September 1, 2018, former Chilean President Veronica Michelle Bachelet Jeria officially took office as the seventh human rights commissioner for a term ending on August 31, 2022.
16. Sun Meng, “On the Integration of UN Human Rights Mechanisms”, World Economics and politics 7 (2017):120.
17. Huang Jinrong, National implementation of the National Convention on Economic, Social and Cultural Rights (Beijing: Peking University Press, 2011), 176; Zeng Lingliang, implementation of international Human Rights Conventions and the practice in China (Wuhuan: Wuhan University Press, 2015), 141.
18. U.N. Doc. A/66/860 (2012).
19. Ibid.
20. Ibid.
21. U.N. Doc. HRI/GEN/2/Rev.6 (2009)
22. Ibid.
28. Ibid.23. Zeng Lingliang, implementation of international Human Rights Conventions and the practice in China (Wuhan: Wuhan University Press, 2015), 141.
24. U.N. Doc. CERD/C/2007/1 (2008); International Convention on the Elimination of All Forms of Racial Discrimination, G.A.res.2106 (XX), Annex, 20 U.N.GAOR Supp. (No.14) at 47, U.N. Doc. A/6014 (1966), 660 U.N. T.S.195, entered into force January 4, 1969.
25. Article 16 (2) of the International Covenant on Economic, Social and Cultural Rights states: “(a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant; (b) The Secretary General of the United Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts there from, from States Parties to the present Covenant which are also members of these specialized agencies in so far as these reports, or parts there from, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.”
26. Article 40 (2-5) of the International Covenant on Civil and Political Rights provides that All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration: “2. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant. 3. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence. 4. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. 5. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.” See U.N. Doc. HRI/GEN/2/Rev.6 (2009).
27. U.N. Doc. HRI/GEN/2/Rev.6 (2009).
29. Ibid
30. Ibid.
31. Ibid.
32. Sun Meng, “On the Integration of UN Human Rights Mechanisms”, World Economics and politics 7 (2017):120.
33. Both complaint and communication are used in this thesis for two reasons: First, in general, according to the guidelines of the official documents of the United Nations High Commissioner for Human Rights (OHCHR), complaints filed to a committee are also called “Communication” or “petition”; Second, in the original English text, the words Inter-State Communication and Inter-State Complaint are also used interchangeably in the official documents of the United Nations. In the Chinese translation, the theoretical and practical circles also use the two terms of “communication” and complaint. It is worth noting that the original English text in International Covenant on Civil and Political Rights uses the word “Communication”, and the official Chinese translation of the International Covenant on Civil and Political Rights uses the term “complaint”.
34. Gu Zuxue and Liu Lei, “Factors Affecting the Implementation of Inter-State Accusation Mechanisms in Human Rights Treaties”, Journal of the pacific 11 (2008); Zeng Lingliang, implementation of international Human Rights Conventions and practice in China (Wuhan: Wuhan University Press, 2015), 142; Scott Leckie, “The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking”, Human Rights Quarterly (1988): 249-303.
35. U.N. Doc. E/C.12/GC/20/CRP.2/Add.1 (1996); Zeng Lingliang, implementation of international Human Rights Conventions and the practice in China (Wuhan: Wuhan University Press, 2015), 152-153.
36. official website of the OHCHR.
37. Both of the complaints and communications are used in this article for two reasons. First, in general, in accordance with the guidelines of the official documents of the United Nations High Commissioner for Human Rights (OHCHR), complaints or complaints filed with a committee are also called “communications” or “petition”; Second, in the original English text, the words “Individual Communication” and “Individual Complaint” are also used interchangeably in the official documents of the United Nations. In the Chinese translation, the theoretical and practical circles also use the “communication” and “complaint” alternately. It is worth noting that in the original English text of the “Optional Protocol to the International Covenant on Civil and Political Rights”, the word “Communication” was used and in the official Chinese translation of the Protocol to the International Covenant on Civil and Political Rights (Protocol I), “communication” was used.
38. Zeng Lingliang, implementation of international Human Rights Conventions and the practice in China, 153.
39. Sun Shiyan, “Observation of the Five-Year Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Human Rights”, Human rights 6 (2018): 71.
40. In the guidance on individual complaint procedures, the United Nations High Commissioner for Human Rights pointed out that: “Anyone can lodge a complaint with a committee against a State that satisfies these two conditions, claiming that his or her rights under the relevant treaty have been violated (a party to the treaty and has recognized the Committee’s competence to consider individual complaints). It is not necessary to have a lawyer prepare your case, though legal advice usually improves the quality of the submissions. Be aware, however, that legal aid is not provided under the procedures. You may also bring a claim on behalf of another person on condition that you obtain his or her written consent. In certain cases, you may bring a case without such consent. For example, where parents bring cases on behalf of young children or guardians on behalf of persons unable to give formal consent, or where a person is in prison without access to the outside world, or the person is the victim of the forced disappearance, the relevant committee will not require formal authorization to lodge a complaint on another’s behalf. In these cases, the author of the complaint must clarify the reasons for the inability to provide the consent.
41. U.N. Doc. CRPD/C/5/2/Rev.1 (2012).
42. Lias Bantekas and Lutz Oette, international Human Rights Law and practice, 2 nd edition (Cambridge: Cambridge University Press, 2016), 536.
43. African Charter on Human and Peoples Rights (Banjul Charter), opened for signatures 27 June 1981, 1520UNTS 217, entered into force October 21, 1986.
44. Ibid.
45. U.N. Doc. CCPR/C/159 (2017).
46. U.N. Doc. CCPR/C/159 (2017).
47. U.N. Doc. CCPR/C/121/D/2502/2014.
48. U.N. Doc. A/73/40 (2018).
49. Sun Shiyan, “Observation of the Five-Year Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Human Rights”, 71.
50. Ibid.
51. As of April 2018, the International Covenant on Civil and Political Rights has 170 States parties; the Optional Protocol to the Convention has 116 States parties. Both instruments entered into force on March 23, 1976. The Second Optional Protocol to the Convention, which aims to abolish the death penalty, entered into force
on 11 July 1991. As of April 6, 2018, the Protocol has 85 parties.
52. U.N. Doc. A/73/40 (2018).
53. Ibid.
54. U.N. Doc. A/73/40 (2018).
55. Guo Yuejun, “On the Inquiry Procedures in International Human Rights Law”, Human Rights 3 (2016): 90.
56. U.N. Doc. A/57/40(SUPP) (2002). Guo Yuejun, “On the Inquiry Procedures in International Human Rights Law”, Human Rights 3 (2016): 90.
