Abstract: Over the past half century of development, the "treaty bodies" set up based on international human rights treaties has gradually developed a quadruple procedure composed of the Contracting States Reporting Procedure, Inter-State Allegation Procedure, Individual Complaint Procedure and Inquiry Procedure. The practice of the quadruple procedure under the "treaty body" in terms of goal setting and function realization has profoundly shaped the development of modern international human rights law and constantly promoted the improvement of the international human rights treaty monitoring mechanism, which is restricted by international political and economic structure and related historical conditions. In the process of building the international human rights legal order in peacetime, "treaty bodies" still face severe challenges in many aspects, such as the democratic legitimacy of the institutional system and the effectiveness of the system operation, but the promotion and improvement of the "quadruple procedure" will promote the human society to move forward continuously towards the goal stated in the Universal Declaration of Human Rights. 

 

Key words: treaty bodies, contracting states reporting procedure, inter-state allegations procedure, individual complaint procedure, inquiry procedure

 

In the era of human rights, global human rights governance is a major issue in the UN-focused international system, and has become the institutional foundation supporting the development of modern international law and modern international relations. Contemporary international relations are increasingly presenting a highly complex interdependence, and both at the regional and global level, international human rights regimes have deeply influenced the current global human rights governance system. [ For example, two scholars, Robert Keohane of Princeton University and Joseph Nye of Harvard University, have proposed the theory of Complex Interdependence to explain the internal logic of contemporary international human rights systems. Robert O. Keohane & Joseph S. Nye, Power and interdependence, Survival. 15 (4) (July 1973), pp.158–165.]By putting the international human rights treaty monitoring mechanism in the context of global human rights governance, this document attempts to summarize and condense the common structural characteristics of the existing international human rights treaty monitoring bodies in terms of organization and operation, focuses on analyzing the legal basis and challenges faced by their monitoring and implementation procedures, so as to systematically determine the challenges that the international human rights system may face, thereby contributing to global human rights governance. 

 

 

It is set forth in Ancient Roman Law that, "agreements must be observed" (Pacta sunt servanda), which is also incorporated into the Vienna Convention on the Law of Treaties in the form of customary international law. [ Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980.Art. 26.]The implementation of the treaty and the improvement of the monitoring mechanism based on this idea is one of the core issues in the practice of international human rights law since World War II. About the general jurisprudence and state practice of the implementation of international human rights treaties, the law community has launched multi-dimensional academic debates and discussions, among which a notable issue is the operational structure of the treaty monitoring mechanism and the challenges faced by it. In order to limit the scope of the discussion, the premise and basis of this document is to divide and split three legal issues - the first is the implementation of international law on international human rights and the implementation of domestic law on international human rights, and the former is a issue of law of treaties generated in the implementation of international human rights treaties, while the latter is an issue of basic rights protection based on a country's constitutional arrangement; the second is the broad sense of the implementation of international human rights treaties and the supervision mechanism created by human rights treaties, and the former is to discuss the conclusion, validity, interpretation, application and state practice of international human rights conventions in the sense of law of treaties while the latter is to discuss the basis, powers, operating rules, working methods, procedures and measures of supervisory bodies in the legal procedures set by international human rights conventions; the third is the broad protection of international human rights and the quasi-judicial remedy of international human rights. [ See Wan Exiang and Chen Jiande: On the Quasi-Judicial Supervision Mechanism of International Human Rights Treaties, Journal of Wuhan University (Philosophy and Social Sciences Edition), 6 (1997), p. 19-20; See also Tu Yunxin: Theses on Economic, Social and Cultural Rights, China Legal Publishing House, 2020, p. 427.]

 

By observing and summarizing the development of the ten "treaty bodies" responsible for monitoring the implementation of international human rights treaties in the past half a century, it can be seen that the monitoring mechanism of international human rights treaties  has gradually developed four procedures focusing on the Contracting States Reporting Procedure, Inter-State Allegation Procedure, Individual Complaint Procedure and Inquiry Procedure, which jointly shoulder the mission of monitoring the implementation of international human rights treaties. 

 

 

 

Contracting States Reporting Procedure means that contracting states to human rights treaties must, in accordance with the provisions of the conventions they have ratified, submit periodic reports to the related bodies of the human rights treaty to describe the legislative, judicial and administrative measures taken by the contracting state to implement human rights conventions and strive for the effective access to the rights recognized in human rights treaties. [ See UN Doc. HRI/GEN/2/Rev.6 (2009)] 

 

The purpose of the contracting states reporting system is to provide a uniform legal framework at the international level within which States can fulfill their reporting obligations under all international human rights treaties to which they are parties in accordance with a harmonized and streamlined procedure. [ See UN Doc. HRI/GEN/2/Rev.6 (2009)]The reporting procedure generally include establishing a framework of reporting institutions, collecting contracting states' local data, drafting and preparing reports, and submitting to treaty bodies. The drafting and preparing of report is considered to be a state act, which must ensure, within the national constitutional framework, that it represents official attitudes at the national level and that it incorporates and integrates the views and aspirations of public opinion bodies and civil society. 

 

 

Among the four procedures in the monitoring mechanism of international human rights treaties, although the reporting obligation of contracting states is the only mandatory legal procedure, human rights treaty bodies are faced with many challenges in this mechanism, such as capacity building, review cycle and follow-up implementation capacity. First, the treaty bodies are limited by the number of experts and insufficient financial resources to cope with the heavy workload. Secondly, in terms of the review cycle, subject to fixed sessions throughout the year, it is difficult for human rights treaty bodies to systematically and carefully consider a large number of contracting states' reports in a short period during about two sessions per year. Thirdly, in terms of follow-up capacity, human rights treaty bodies generally urge contracting states to perform their treaty obligations through "recommendations" after making conclusions on contracting the reports, which are not binding to the contracting states. 

 

 

 

In contrast to the reporting procedure, the interstate allegation procedure is in most cases an "optional procedure", which means that, allegations by a contracting states to the Human Rights Covenant that another state has committed a serious violation of the principles and provisions of the Covenant are further dependent on the state's capacity acceptable to the treaty body (or the relevant committee) in this regard, and contracting states may optionally initiate inter-state complaint procedure. The key to the effective operation of the Inter-State Allegation Procedure lies in the jurisdiction and legitimacy of the treaty bodies (or relevant committees) in terms of jurisdiction as established in the relevant human rights conventions. Only when both contracting states to the dispute have expressly declared or stated their acceptance of the jurisdiction of the treaty body (or the relevant committee) by a legal procedure can the proceedings between states enter into a real antagonistic phase, and only then,the relevant treaty body (or the relevant committee) may, on the basis of consent between states, conduct an investigation, prepared a report, or examine whether the allegation itself is substantiated. 

 

 

From the international practice after the inter-state accusation procedure was included in many human rights conventions, the disputes between contracting states under the human rights conventions is not only legal issue, but also may be a political one with broad international relations implications. In terms of the interpretation of human rights conventions, although States have concluded conventions with other countries and ratified them in their constitutional procedures based on a kind of "consent" in the sense of sovereignty, the disputes on the legal interpretation of the implementation of certain provisions of the conventions may be a more significant legal problem. In terms of international politics in a broad sense, in reality, most countries will not take the initiative to apply such complaint procedures, and the inter-state complaint procedure existing in many human rights conventions have never been initiated, just because that, in a large sense, these complaint procedures are extremely easy to be "politicized" and seriously affect the economic and trade exchanges and friendly relations between countries in other aspects, and governments are also constantly wary of this "Pandora's Box" that contracting states try to avoid. [ See UN Doc. E/C.12/GC/20/CRP.2/Add.1(1996); See Zeng Lingliang: The Implementation of International Human Rights Conventions and China's Practice, Wuhan University Press, 2015, pp. 152-153. ]

 

 

 

The Individual Complaint, also known as Individual Communication, refers to a system by which individuals or groups of individuals whose rights under the Human Rights Conventions have been violated submit it to international human rights organizations and institutions for review and discussion. [ Complaints and communications are used interchangeably in this document for two reasons: First, in general, a complaint submitted to a committee is referred to as a "communication" or "petition" in accordance with the guidelines of the official documents of the United Nations High Commissioner for Human Rights (OHCHR). Secondly, in the original English language, the terms "Individual Communication" and "Individual Complaint" are also used interchangeably in the official documents of the United Nations. In theory and practice, the two words "communication" and "complaint" in Chinese are also used interchangeably in Chinese translation. It is notable that the word "Communication" is used in the Optional Protocol to the International Covenant on Civil and Political Rights in original English version, and the the term "communication" in Chinese is used in the official Chinese translation of the Protocol (Protocol I). ][ See Zeng Lingliang:The Implementation of International Human Rights Conventions and China's Practice, Wuhan University Press, 2015, p. 153. ]The establishment of the individual complaint procedure is a great contribution to and development of the modern international law, which makes individuals or groups be regarded as the subject of international law under certain conditions. The development of human rights law led to a breakthrough in the subject theory of international law, and the international legal system broke through the traditional domination of sovereign states or international organizations. Like a sword, international human rights law has opened up new frontiers under the traditional legal order built on "sovereign rocks" - sovereign states must fulfill a minimum international obligation to guarantee the rights of the people living in their territorial jurisdiction. 

 

In international human rights law, the initiation of individual complaint procedures based on human rights conventions must meet more stringent conditions. Any person may, after meeting certain conditions, file an individual complaint procedure to a treaty body in accordance with the provisions of the Convention. An individual complaint procedure is a complaint by an individual (or organization) against the government of a contracting state, which is a Quasi-judicial procedure in a certain adversarial nature. Individual complaints must meet the following admissibility requirements: 1) The complainant must have victim status. [ See lias Bantekas & Lutz Oette, International Human Rights Law and Practice, 2nd ed., Cambridge University Press, 2016, p.536.]2) The complainant must exhaust the domestic remedies. 3) The complaint must be filed within a reasonable time. 4) The complaint shall not be considered inadmissible. 5) The complainant must rule out manifestly ill-founded cases. 

 

 

The establishment of the individual complaints procedure is "a milestone in the history of the universal human rights system"[ See also Sun Shiyan: Review on the "Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: on the Fifth Anniversary, Human Rights No. 6, 2018, p. 79. ], which attempts to advance international human rights law by accumulating a consistent and coherent rule of case law on a quasi-judicial case-by-case basis. The current challenge for the human rights treaty bodies is to develop a jurisprudence of covenant rights that is convincing to contracting states, and the development of such jurisprudence is subject to two factors: first, the limits of the competence of the human rights treaty bodies themselves in interpreting Covenant rights; secondly, the capacity of human rights treaty bodies to deal with individual communications. In general, the examination of individual complaints by treaty bodies generally considers both the admissibility and the substance of the complaint. 

 

 

 

The so-called Inquiry Procedure refers to the decision of a human rights treaty body to appoint one or more commissioners to conduct an inquiry into a contracting states when, subject to certain conditions and based on reliable information, there is a serious or systematic violation of any of the rights set out in the Human Rights Covenants. For example, under Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and Articles 11 and 12 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, an investigation may include a visit to the territory of the contracting state concerned, subject to its consent or ratification. 

 

 

The inquiry process may is faced with greater challenges in terms of the current implementation of the monitoring mechanisms of international human rights bodies. First, the coverage and application of inquiry procedure in core international human rights conventions are inadequate. Secondly, the issue of "selectivity" in the initiation of investigation procedure as an optional procedure reduces the credibility and legitimacy of the quasi-judicial procedure. Thirdly, the implementation of the inquiry procedure is heavily dependent on the consent and cooperation of the contracting state. In situations where human rights violations are most serious or of the largest scale, human rights treaty bodies not only rely on reports from non-governmental organizations for information, but also most likely require field investigations. Whether field investigation will be conducted successfully ultimately depends on the consent and cooperation of contracting states, which makes it highly likely that contracting states will refuse to cooperate with human rights treaty body investigations on the basis of the defense of sovereignty, and "serious or large-scale continuous violations of human rights" will escape the inquiry procedure. 

 

 

In the face of various legal challenges and practical difficulties in the operation of human rights treaty bodies, the international community must deeply recognize the boundary of the role of institutional facilities in the international political and economic structure. On the one hand, treaty bodies must uphold and consolidate the democratic legitimacy of their institutional structures, and properly handle the relationship between the interpretation of the Committee and that of the contracting state in terms of the power and limits of the interpretation of the Convention. On the other hand, treaty bodies must also strengthen their institutional capacity and continuously improve the effectiveness and effectiveness of their operations in terms of human resources, financial resources, working mechanisms and workloads. Limited by international political and economic structures and related historical conditions, the "treaty bodies" still face severe challenges in the process of building an international human rights legal order in peacetime, but the promotion and improvement of the "quadruple procedure" will promote human society to move forward continuously towards the goal as stated in the Universal Declaration of Human Rights. (End of Body)

 

(The author is researcher and Doctor of Law at the Human Rights Research Center of Fudan University)