The numerous human rights conventions under the framework of the United Nations and the regional systems in Africa, the Americas and Europe have led to the creation of a wide range of mechanisms for monitoring compliance with international human rights laws. This chapter will examine the different procedures, which have been instituted at the international and regional levels to monitor compliance with human rights treaties.
There are two distinctive types of supervisory mechanisms:
a) Treaty-based mechanisms: supervisory mechanisms enshrined in legally binding human rights instruments or conventions. Within the UN framework these mechanisms are often called ‘treaty bodies’, e.g., the Human Rights Committee and the Committee on the Rights of the Child. The African Commission and future Court of Justice and Human Rights, the European Court of Human Rights and the Inter-American Court and Commission of Human Rights are also treaty bodies.
b) Non-treaty based mechanisms: supervisory mechanisms not based on legally binding human rights treaty obligations. Generally, this type of mechanism is based on the constitution or charter of an intergovernmental human rights forum, or on decisions taken by the assembly or a representative body of the forum in question. Under the UN framework, the non-treaty-based mechanisms are referred to as ‘charter- based’ mechanisms, which include the Human Rights Council 1503 procedure, the Universal Peer Review and ‘special procedures’. The European Commission against Racism and Intolerance under the Council of Europe is also an example of a regional non-treaty based mechanism.
The following sections provide an overview first and foremost of the treaty-based mechanisms. The United Nations non-treaty-based mechanisms are dealt with in Part II (1.C).
The various supervisory procedures established in human rights treaties can be divided into four main groups:
Inter-state complaint procedure
Individual complaint procedure
Inquiries and other procedures
A. Reporting procedures
Most human rights treaties include a system of periodic reporting. States parties to them are obliged to report periodically to a supervisory body on the implementation at the domestic level of the treaty in question. As formulated, e.g., in Article 40 of the ICCPR, states parties shall ‘submit reports on the measures they have adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights’. At the UN level, each treaty body has formulated general guidelines regarding the form and contents of the state reports (see HRI/GEN/2/Rev.2), and their own rules of procedures (see UN HRI/GEN/3/Rev.1).
The report is analysed by the relevant supervisory body, which comments on the report and may request the state concerned to furnish more information. In general, reporting procedures under the different treaty-based mechanisms are meant to initiate and facilitate a ‘constructive dialogue’ between the supervisory body and the state party.
The quality of the reports submitted by states varies. Some reports reflect serious efforts to comply with the reporting requirements, while others lack credibility. In any case, the reports generally reflect the view of the respective state. Along with fluctuations in the quality of state reports, the overall compliance with submitting any report at all is often marginal. Many states’ reports are late by several years or simply are not submitted at all. Fortunately, committees often receive information and reports about a country’s human rights situation from other sources, including nongovernmental organisations, UN agencies, other intergovernmental organisations, academic institutions, and the press. The quality of decision-making throughout the reporting procedure depends to a great extent on this additional information that the experts may receive from the external sources. Additional information provided by NGOs and agencies of the United Nations help set forth a wider perspective as to the actual situation in the country concerned. In an increasing number of countries, NGOs prepare and submit alternative or ‘shadow’ reports to the treaty bodies, aimed at counter balancing the information submitted by the state. In the light of all the information available, the committees examine the reports together with government representatives. Based on this dialogue, the committees decide on their concerns about and recommendations to the state concerned, which in their written form are referred to as ‘concluding observations’.
All UN human rights convention require state party reporting: Article 16 ICESCR, Article 40 ICCPR, Article 9 CERD, Article 19 CAT, Article 44 CRC, Article 18 CEDAW, Article 73 CMW and Article 35 CRPD set out a reporting procedure. Article 29 of the International Convention for the Protection of all Persons from Enforced Disappearance (not in force as of March 2010) also requires reporting. Under the regional systems, reporting mechanisms are found under Article 21 of the European Social Charter, Article 19 of the Protocol of San Salvador, and Article 62 of the African Charter on Human and Peoples’ Rights.
The regular supervision of ILO conventions also encompasses a reporting mechanism. Each member state of the ILO must submit a report at regular intervals on the measures it has taken to give effect to the provisions of conventions which it has ratified. The Committee of Experts on the Application of Conventions first examines these reports in closed meetings composed of 20 independent legal experts. The comments of the Committee of Experts are made in the form either of observations which are published in the Committee’s report on the Application of Conventions and Recommendations, or in requests dealing with more technical questions addressed directly to the governments, which remain unpublished. The Committee’s report is then considered at the annual session of the International Labour Conference by a tripartite Conference Committee on the Application of Conventions and Recommendations (Committee on Application of Standards). It is worth noting that under the ILO framework member states must also submit reports on conventions they have not yet ratified, showing the position of the law and practice in regard to the matters dealt with in the conventions, and indicating the difficulties which have prevented or delayed ratification.
B. Inter-state complaint procedure
Some human rights instruments allow states parties to initiate a procedure against another state party which is thought not to be fulfilling its obligations under the instrument. In most cases, such a complaint may only be submitted if both the claimant and the defendant state have recognised the competence of the supervisory body to receive this type of complaint.
The possibility to lodge complaints against another state party is contemplated in, inter alia, Article 41 ICCPR; Article 21 CAT; Article 11 CERD; Article 33 ECHR; Article 45 ACHR; and Article 54 ACHPR. Within the framework of the ILO there are two procedures for inter-state complaints (see Article 26 of the Constitution and the procedure for freedom of association).
In reality, however, inter-state complaint mechanisms are rarely used. Inter-state relationships are delicate and inter-state mechanisms may not be ideal procedures as states bringing complaints may elicit reprisals. In addition, many states have not recognised the competence of the supervisory bodies to receive inter-state complaints, though neither the European Convention for the Protection of Human Rights and Fundamental Freedoms nor the African Charter on Human and Peoples’ Rights require any special authorisation for a state party to be able to lodge interstate complaints. The European mechanism is the only inter-state mechanism that has been deployed several times although the Court has only delivered judgements in three cases: Ireland v. The United Kingdom (1978); Denmark v. Turkey (2000) and Cyprus v. Turkey (2001). In 2007 Georgia lodged an application against the Russian Federation with proceedings commencing in April 2009.
C. Individual complaint procedure
It seems reasonable that individuals, on whose behalf human rights were stipulated in the first place, should be enabled to initiate proceedings to protect their rights. Such a procedure, whereby an individual holds a government directly accountable before an international supervisory body, aims to afford far-reaching protection to the individual. Several international conventions have created the opportunity for an individual who feels that his or her rights have been violated to bring a complaint alleging a violation of certain treaty rights to the body of experts set up by the treaty for quasi-judicial adjudication or to an international Court (i.e. the European Court, Inter-American Court and future African Court of Justice and Human Rights). While there are some procedural variations between the different mechanisms, there are three procedures that all conventions have in common. In order for an individual to bring a case/communication/petition under a human rights convention, the following requirements have to be met: a) the alleged violating state must have ratified the convention invoked by the individual; b) the rights allegedly violated must be covered by the convention concerned; and c) proceedings before the relevant body may only be initiated after all domestic remedies have been exhausted.
At the UN level, individual complaint mechanisms are found under eight conventions: in the First Optional Protocol to the ICCPR; the new Optional Protocol to the ICESCR (opened for signature and ratification in March 2009), Article 22 CAT; Optional Protocol to the CEDAW; Article 14 CERD, Article 77 CMW, the Optional Protocol to CRPD and in Article 31 of the International Convention for the Protection of All Persons from Enforced Disappearance (not yet in force as of March 2010). Individual complaints under one of the above-mentioned treaties can be brought only against a state that has recognised the competence of the committee established under the relevant treaty or which is party to the relevant optional protocols. In the case of the ICCPR, ICESCR; CRPD and the CEDAW, a state recognises the Committees’ competence by becoming a party to an optional protocol which has been added to the relevant convention.
In the case of the CAT, the CERD and CMW, states recognise the Committees’ competence by making an express declaration under Articles 22, 14 and 77 (under CMW these provisions will become operative when 10 states parties have made the necessary declaration under Article 77), respectively. Anyone within the jurisdiction of a state party can lodge a complaint with a committee against a state that satisfies this condition, claiming that his or her rights under the relevant treaty have been violated. There is no formal time limit after the date of the alleged violation for filing a complaint under the relevant treaties, but the victim should submit a complaint as soon as possible after having exhausted domestic remedies.
While there are procedural variations between the different UN treaties, their design and operation are very similar. In general terms, the system works as follows: Once a complaint (which should comply with some basic requirements) is submitted, the case is registered and transmitted to the state party concerned to give it an opportunity to comment. The state is requested to submit its observations within a set time frame. The two major stages in any case are known as the ‘admissibility’ stage and the ‘merits’ stage. The ‘admissibility’ of a case refers to the formal requirements that the complaint must satisfy before the relevant committee can consider its substance. The ‘merits’ of the case are the substance, on the basis of which the committee decides whether or not the rights under a treaty have been violated. Once the state replies to the complaint, the alleged victim is offered an opportunity to comment. Again, the time frames vary somewhat between procedures. At this point, the case is ready for a decision by the relevant committee. If the state party fails to respond to the complaint the committee may take a decision on the case on the basis of the original complaint. There is no appeal against committees’ decisions. When a committee decides that the state party has violated a right, or rights, enshrined in the treaty, it invites the state party to supply information within a given time limit on the steps it has taken to give effect to the committee’s findings.
Under the European system, an individual complaint mechanism is found under Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. While under the old system, covered by Article 25 of the European Convention, the individual complaint mechanism was optional for state parties, under the new system, established by Protocol No. 11 (entered into force in 1998), the mechanism is compulsory for all states parties to the Convention. Under the European Convention, a group of individuals or a nongovernmental organisation may also lodge a complaint (this is likewise possible under the ICCPR and the American Convention). Article 35(1) of the European Convention requires that the petition be lodged within six months after the date on which the last domestic jurisdictional decision was taken.
At the Inter-American level, Article 44 of the American Convention on Human Rights allows petitions to be brought unconditionally before its supervisory body, the Inter-American Commission on Human Rights, unconditionally meaning that no separate acceptance by the state of the individual complaint procedure is required. The petitioner under this system does not have to be the victim but the petition must be submitted to the Commission within six months after the local remedies have been exhausted.
Under the African system, Article 56 of the African Charter details the conditions under which the African Commission on Human and Peoples’ Rights may receive complaints from individuals. Communications can be submitted by private individuals, non-governmental organisations and various other entities and the petitioner does not have to be the victim. It has been criticised that the Protocol on the Statute of the African Court of Justice and Human Rights stipulates that individual complaints can only be referred to the future African Court by the African Commission, states parties to the Protocol, the African Committee of Experts on the Rights and Welfare of the Child, accredited African inter-governmental organisations and African National Human Rights Institutions. Direct access for individuals and non-governmental organisations is not permitted unless a state party expressly makes a declaration accepting the competence of the Court to receive applications from these actors.
Unlike the complaint procedures under the UN ‘treaty bodies’, in the European and Inter-American systems oral hearings are a regular part of the complaints procedure. In addition, the decisions of the regional human rights courts are binding upon states.
Some ‘non-treaty based procedures’, also contemplate the submission of individual complaints. For example, in 1970 the UN Commission on Human Rights established the so-called 1503 procedure, which has been maintained by the replacement body, the UN Human Rights Council. The 1503 procedure allows the UN Human Rights Council to examine communications received from individuals and other private groups, with the aim to ‘address consistent patterns of gross and reliably attested violations of all
human rights and all fundamental freedoms occurring in any part of the world and under any circumstances’. It should be emphasised that even though this procedure allows for individuals and non-governmental groups to file a complaint, no individual redress is possible under this procedure. Instead, the complaints aim at identifying ‘a consistent pattern of gross and reliably attested violations’. When the UN Human Rights Council receives a communication under procedure 1503, it can adopt several responses. It may, inter alia, discontinue considering the situation when further consideration or action is not warranted, submit a request additional information from the state concerned, appoint an independent expert to monitor the situation and report back to the Council, take the matter up under its public procedure or recommend to the OHCHR to provide technical cooperation, capacity‑ building assistance or advisory services to the state concerned (see II§1.C).
In the same vein, the Commission on the Status of Women has also developed a complaint procedure. This mechanism is designed to identify global trends and patterns concerning women’s rights. It was established pursuant to a series of resolutions of the ECOSOC, under which the Commission considers confidential and non confidential complaints regarding the status of women in any country in the world. Like the 1503 procedure, direct redress to victims of human rights violations is not afforded.
D. Inquiries and other procedures
The group of supervisory mechanisms now discussed includes all procedures that do not fall under those mentioned above. Most involve inquiries, but others may entail initiatives aimed at preventing violations or promoting compliance with specific human rights. The supervisory bodies discussed in the previous section play a rather passive role as they generally cannot initiate proceedings, and are largely dependent on information submitted by governments, NGOs or individual petitioners. Recently, however, several supervisory mechanisms have been established whereby an independent person or group of persons may raise, on the person’s or group’s own initiative, issues of non-compliance with human rights. Such a body may, for instance, act upon receipt of complaints or take an initiative itself. It may also initiate a visit in loco to gather information, or do so as part of a regular visit-programme. One example of a visit-programme is that of the Inter-American Commission on Human Rights, which has carried out more than 100 on-site visits from its establishment in 1961. (This system as initially a non-treaty based mechanism, but was later confirmed in Article 41 ACHR). Another example of an enquiry – and in loco visits procedure - is that set out in Articles 126 and 132 of the Third Geneva Convention (1949), and the provision in Article 143 of the Fourth Geneva Convention providing for on-site visits to places of internment or detention. Mention should also be made of the International Fact-Finding Commission established under Article 90 Protocol I to the Geneva Conventions.
Inquiries may also be undertaken by the special procedures operating under the Human Rights Council, such as thematic rapporteurs, country rapporteurs or working groups. These are often well suited to deal with specific situations or specific rights. The thematic rapporteurs or working groups may send communications or ‘urgent appeals’ to raise human rights issues with governments; they can also institute fact-finding missions in loco and publicise their findings. A complaint is not the prerequisite for the special procedures to act, nor do they have to wait until domestic remedies are exhausted. Special procedures may request the governments concerned to provide more information; they may even initiate fact-finding missions for information only. However, fact-finding and in loco missions can only take place with the consent of the state concerned (see II§1.C).
Examples of existing inquiry and other procedures discussed here in more detail are the following:
Article 20 of CAT
Optional Protocol to CAT
European Committee for the Prevention of Torture (ECPT)
Article 8 Optional Protocol to CEDAW
Article 6 Optional Protocol CRPD
European Commission against Racism and Intolerance (ECRI)
OSCE High Commissioner on National Minorities
1. ARTICLE 20 OF CAT
In addition to a reporting procedure, the inter-state complaint procedure and an individual complaint mechanism, Article 20 CAT also empowers its supervisory body, the Committee against Torture, to undertake certain investigatory action on its own initiative. The Committee may initiate an inquiry when it receives ‘reliable information’ that suggests ‘well-founded indications that torture is being systematically practised in the territory of a state party’. Although the enquiry is to be confidential and requires the Committee to seek the co-operation of the state party concerned, the Committee is not prevented ipso facto from proceeding with the investigation because the state fails to co-operate with the Committee. However, in order for the Committee to investigate the charges in the territory of a given state, it needs the explicit consent of the state concerned. When the proceedings have been concluded, the Committee may include a summary of its findings in its annual report. The Committee has made use of the procedure under Article 20 several times, reviewing the situation for example, in Mexico, Sri Lanka, Peru, Egypt, Togo, Uzbekistan and Turkey (see II§1.C).
2. OPTIONAL PROTOCOL TO CAT
In 2002, the United Nations General Assembly adopted the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
The Protocol, which entered into force in 2006, establishes a unique ‘two pillar’ visiting mechanism - both international and national -to prevent torture in all places where persons are deprived of liberty. Under the OPCAT the Subcommittee on Prevention, composed of international experts, conducts periodic visits to all places where persons are deprived of liberty (such as prisons, police stations, psychiatric institutions, juvenile or migrant centres) in the states parties to the Protocol. The Subcommittee is complemented by National Preventive Mechanisms (NPMs) that also undertake regular visits to places of detention and should be able to carry out more thorough visit than the Sub-Committee in light of local knowledge and the potential for more effective follow-up. The UN Subcommittee and the NPMs should build a constructive dialogue with the authorities and provide recommendations on effective measures to be taken in order to further prevent torture and ill-treatment (see II§1.C).
3. EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) has been created ‘to examine the treatment of persons deprived of their liberty with the view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.’ The ECPT has the power to visit places of detention of any kind, including prisons, police cells, military barracks and mental hospitals, with the aim to examine the treatment of detainees and, when appropriate, to make recommendations to states concerned. The Committee is to co-operate with the competent national authorities, and has to carry out its functions in strict confidentiality. The Committee will publish its report if a state refuses to cooperate or fails to make improvements following the Committee’s recommendations. The Committee’s annual report to the Committee of Ministers of the Council of Europe is made public. The Committee may carry out both periodic visits to all states parties and ad hoc visits. If the Committee opts for the ad hoc visit, it needs to notify the state concerned of its intention to carry out such visit (see II§2.C).
4. ARTICLE 8 OF THE OPTIONAL PROTOCOL TO CEDAW
The Optional Protocol to CEDAW, adopted in 1999 (entered into force in 2000), strengthens the enforcement mechanisms available for the rights within CEDAW. As of March 2010, 99 states had ratified the Protocol. In addition to an individual complaint procedure, the Protocol established in Articles 8 and 9 an ‘inquiry procedure’, which enables the CEDAW Committee to initiate a confidential investigation when it has received reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention. Moreover, if deemed necessary, and with the consent of the state party, the Committee may visit the territory of the state concerned. Any findings, recommendations or comments are transmitted to the state party, which may respond within six months.
The inquiry procedure allows the CEDAW Committee to respond in a timely fashion to serious violations that are in progress within the jurisdiction of a state party, as opposed to waiting until the next state report is due to be submitted. In addition, the procedure offers a means of addressing situations in which individual communications do not adequately reflect the systematic nature of widespread violations of
women’s rights. It also addresses the situation where individuals or groups are unable to submit communications due to practical constraints or fear of reprisals. Under Article 10 of the Optional Protocol, states may ‘opt-out’ of the inquiry procedure at the time of signature, accession or ratification (see II§1.C).
5. ARTICLE 6 OF THE OPTIONAL PROTOCOL TO CRPD
The Optional Protocol to the Convention on the Rights of Persons with Disabilities which entered into force in May 2008 establishes, inter alia, an ‘inquiry procedure’. Article 6 enables the Committee on the Rights of Persons with Disabilities to initiate a confidential investigation when it receives reliable information indicating grave or systematic violations by a state party of rights enshrined in the CRPD. The Committee may designate one or more of its members to conduct an inquiry and to report urgently
to it. Where warranted and with the consent of the state party, the inquiry may include a visit to its territory. The Committee shall transmit its findings to the state concerned together with any comments and recommendations. The state should in return submit its observations to the Committee within six months of receiving the findings. Inquires shall be conducted confidentially and the cooperation of the state in question shall be sought at all stages of the proceedings.
6. EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE
The European Commission against Racism and Intolerance (ECRI) is a non-treaty
based mechanism worth mentioning. It monitors the human rights situation in CoE countries and drafts critical reports with recommendations, meant to contribute to a dialogue with member states on issues of concern. In addition, the ECRI has produced numerous General Policy Recommendations, whereby general comments and conclusions are drawn up on specific subjects related to combating racism. All CoE countries are treated on an equal footing. Reports are drafted on all countries over the course of four years (see II§2).
7. HIGH COMMISSIONER ON NATIONAL MINORITIES
Another European mechanism worth mentioning is the Office of the High Commissioner on National Minorities, established in the final document of the Helsinki Follow- up Meeting (1992). The High Commissioner’s role is to identify and try to resolve ethnic tensions that might endanger peace, stability or friendly relations between the participating states of the OSCE. His/her role is above all a preventive one: identifying potential minority conflicts at an early stage, and seeking solutions together with all parties concerned (see II§2).
E. Selecting the most appropriate procedure
In order to determine which supervisory mechanism applies in a specific case, the following questions may be used for guidance:
Which specific human right has been violated?
Where has the alleged violation taken place?
Which government is held responsible and to what extent?
Which convention protects this human right?
Is the responsible state a party to an applicable human rights treaty? If yes, how does the supervisory procedure work? If no, is there some supervisory procedure outside the relevant convention that could be invoked?
The specific character of a particular procedure has to be taken into consideration. An inter-state mechanism procedure is of a rather political nature, which implies that inter-state relations may be unduly strained. On the other hand, some of the other procedures, especially the individual mechanisms, can have a more confrontational character.
Sometimes, individual complaints are possible both at the universal level (e.g., ICCPR, CAT and CEDAW Optional Protocol) and under a regional system (e.g., European Convention and American Convention). Where the victim has a choice it may be preferable to lodge the complaint with the regional human rights court (e.g., the European or the Inter-American Court of Human Rights) as their judgements are legally binding on the state party in question and often include explicit decisions on compensation or reparation.
It should be noted that it human rights instruments generally prohibit the submission of the same complaint to both a universal and a regional system. For example, the European Convention prevents the admission of a case which has been dealt with already by the Human Rights Committee (Article 35(2.b)). It is possible, however, to complain before the Human Rights Committee after the European Convention procedure has been exhausted. However, most states parties to the European Convention consider this undesirable and have therefore made a declaration at the time of the ratification of the Optional Protocol to the ICCPR which excludes duplication of procedures in the same case. Other states parties, however, allow persons under their jurisdiction to apply the ICCPR procedure after the ECHR procedure.
The purpose of the various supervisory mechanisms is to combat violations and to promote compliance with human rights treaties. Ideally, such mechanisms should function effectively. There are, however, a number of problems.
Firstly, a large number of countries have either not recognised the competence of the relevant treaty-based mechanisms or have failed to ratify the treaties concerned. Secondly, a number of treaty-based mechanisms, such as the individual complaint mechanism, are victims of their own success. The sometimes overwhelming number of individual complaints has led to a serious delay in the decision procedures, especially under the European Court of Human Rights. Moreover, many procedures for individual communications are understaffed and underfunded. At the UN level, the major shortcoming of the individual complaints procedure is the absence of legally binding judgements. Although the treaty bodies have developed certain ‘follow-up’ mechanisms, such as the ‘Human Rights Committee Special Rapporteur on Follow-up’ there is still much room for improvement.
On the other hand, the most common supervisory mechanism, the examination of reports under the treaty-based reporting mechanisms, also faces problems. The value of reports depends on the depth of research that underpins them, the clarity of their content and the timeliness of their production and delivery schedules. The value and promptness of reports affects the quality of decision-making throughout the system. Unfortunately, some states do not seem to take the reporting system seriously and there are a great number of states that have not submitted reports required under the various treaties. In general, the human rights instruments do not provide for reprimanding delinquent states. Additionally, the submission of reports to all the major human rights supervisory bodies creates practical difficulties for many states. At present, the reports are overwhelming in number and tend towards duplication. This creates a serious burden for states, especially for developing countries, which have to submit numerous reports. The same problem is encountered by the Secretariat, which needs to struggle to keep abreast of the growing number of reports requested by the various intergovernmental bodies. The sheer volume of reports is challenging the supervisory bodies’ capacity to provide focused and value-added analysis. Several proposals have been put forth with the aim to strengthen the treaty body system. On is the ‘common core document’ wherein states would avoid duplication by providing more general information including information relating to substantive treaty provisions congruent across all or several treaties. This core document, which would minimise repetition of information in states’ reports to the treaty bodies, would be updated regularly and submitted to each committee in tandem with targeted treaty-specific reports.
The non-treaty-based procedures are also encountering serious difficulties. Not only are the mechanisms political by nature, but the examination of violations often takes a long time. Moreover, some of these bodies, which act in regular meetings, are not well designed to respond to situations that require urgent actions. The ‘mobilisation of shame’ - one of the tools employed by the charter-based procedures - can, however, be very effective.
It could be argued that a centralised system, either for the UN treaties or more generally, would enhance supervision. This, however, does not appear attainable for the time being, given the diversity of the human rights obligations and the institutions charged with the supervision. The supervisory mechanisms are the product of specific decision-making processes, which cannot be simply unified. At the UN level, it is one of the major tasks of the High Commissioner for Human Rights to improve the organisation and co-ordination of the activities of the various supervisory systems.
Finally, it is worth noting that any improvement in the supervisory systems requires the support of states. It is fair to say that such support is often lacking, and states seem reluctant to encourage rigorous scrutiny of their human rights records. In these circumstances, NHRIs, NGOs and civil society are crucial to the strengthening of the human rights supervisory mechanisms. For example, the participation of NGOs in the reporting process may help to ensure that reports are submitted on time and that they are well prepared. In general, NGOs should play an active role in lobbying for states to pay more attention to the human rights supervisory systems.
Complaints, correspondence and inquiries
to UN treaty bodies should be directed to:
Office of the UN High Commissioner for Human Rights,
52 Rue des Pacquis,
1211 Geneva, Switzerland
THE REPORTING PROCEDURE UNDER THE ICESCR
All UN human rights treaties establish a reporting system. Although the different committees have established independent systems they are similar. As an example, theICESCR reporting mechanism will be described below:
The pre-sessional working group and the ‘list of issues’
Prior to each Committee session, five members of the Committee meet to identify the principal focus of discussion with state representatives during the constructive dialogue. This ‘pre-sessional working group’ prepares a list of issues to be taken into consideration when examining the state party report, which is transmitted to the permanent delegation of the state concerned. The idea is to provide the state with the possibility to prepare answers in advance and thereby to facilitate dialogue with the Committee. The list of issues is not meant to be exhaustive and the dialogue may refer to other points as well. States should provide written replies to the list of issues well in advance of the session, in order to make these available to the Committee members in the respective working languages. Generally, the ‘list of issues’ of a given country contains the points which are of greatest concern to the Committee or which have not been properly addressed by the state in its report.
The Constructive Dialogue
The Committee strongly encourages states to be present at the meeting when theirreports are examined. The discussion between government representatives and Committee members is called the ‘constructive dialogue’. Representatives of specialisedagencies concerned such as ILO, WHO and UNICEF and other international bodies mayalso be invited to contribute at any stage of the dialogue. The dialogue with state representatives is a valuable opportunity for the Committee to explain the normative content of particular provisions of the Covenant and to comment on difficulties in the implementation of the Covenant. The summary records of such dialogues are made available to the public through printed UN documents and are now also available through the Internet in the database maintained by the OHCHR. The dialogue is often very open and frank, and state experts frequently recognise the failures of the states they represent and the difficulties encountered in the implementation of the Covenant. Committee experts have the opportunity to provide a clear explanation of the scope of the obligations concerned.
The Concluding Observations
The final phase of the examination of state reports is the drafting and adoption of theCommittee’s Concluding Observations. The Concluding Observations are usually madepublic only on the last day of the session and are available to all interested parties. Since 1993, the established structure of the ‘Concluding Observations’ is as follows:
‘introduction,’ ‘positive aspects,’ ‘factors and difficulties impeding the implementation ofthe Covenant,’ ‘principal subjects of concern,’ and ‘suggestions and recommendations’.Despite the fact that this structure employs rather diplomatic language, the Committeehas become increasingly more adversarial and inquisitive in its work. Nowadays, theConcluding Observations do not merely contain ‘suggestions and recommendations’;careful examination reveals that many Concluding Observations are to a greater orlesser extent formal declarations of compliance or non-compliance.