Spotlights on Health and Rights

Key topics in the Heilbrunn Department of Population and Family Health

Human Rights

Monitoring and Accepting Obligations

International human rights treaties are usually developed by lengthy negotiations among member states under UN auspices and presented for consideration by the UN General Assembly, which is the UN body in which all member states are represented and each has one vote. In this case, the General Assembly decides only whether the treaty text is ready for consideration by each member state. The first step in this consideration is whether a country signs the treaty. Signature is a preliminary endorsement of a treaty, not legally binding, that also signals a country's commitment to consider ratification or legally binding endorsement of the treaty. Countries normally have a well defined process for approving or ratifying treaties. In many countries, the head of state can sign a treaty, but ratification involves an action of the parliament or other legislative body. In the United States, for example, the president can sign a treaty, but ratification requires a two-thirds majority vote in the U.S. Senate.

Ratification of a human rights treaty is a formal agreement to be legally bound by the terms of the treaty. The ratification process is also meant to include a review of national law to ensure that it conforms with the terms of the treaty, along with any formal revisions that are necessary. Practically speaking, the most important way to ensure that human rights become a reality is to encode them in national law, especially in the highest law, which for most countries is the national constitution. When they ratify a treaty, countries may also state reservations or provisions of the treaty that it feels it cannot comply with. (United Nations bodies decide whether a given country's reservations are so extensive that its ratification is not meaningful, but this rarely happens.)

The nature of the obligation that governments accept when they ratify a human rights treaty is threefold - they accept to respect, protect and fulfill the rights articulated in the treaty. These terms have a particular meaning in human rights usage:

Respect: The government pledges not to violate rights by its own actions. Protect: The government pledges to prevent violations by other parties. Fulfill: The government pledges to do everything possible to ensure that rights can be enjoyed.

Example:

In the area of the human rights of women and girls with respect to reproductive health, for example:

  • Respect: The government must refrain from limiting access to contraceptives and other reproductive health goods and services and must remove all discriminatory barriers to women's and girls' access to health services.
  • Protect: The government must prevent third parties from coercing girls into harmful practices such a genital cutting or from coercing women into unwanted pregnancies and should take measures to protect all persons from gender-based violence.
  • Fulfill: The government should do everything (progressively) to ensure that reproductive health services and information are available and accessible to everyone, even in remote and insecure areas.

Once a country has ratified a human rights treaty, it must follow the treaty's provisions for monitoring and reporting on its implementation in that country; these provisions are usually specified in the last articles of the treaty. These generally consist principally of submitting periodic reports to a treaty body or committee that oversees compliance with the treaty, but this is not the only such mechanism. Among the mechanisms for monitoring human rights compliance by national governments are the following:

  • Reporting to treaty bodies: The nine core treaties all have UN-sponsored committees of experts who review periodic reports from states parties (governments that have ratified a given treaty) according to an announced schedule. In addition, the treaty bodies accept "shadow reports" from civil society organizations at the time the government submits its formal report. Reports are meant to highlight how governments are acting to ensure that rights represented by key provisions of the treaty are respected, protected and fulfilled.

  • Universal periodic review (UPR): UPR is a system instituted by the UN Human Rights Council in 2008 whereby the human rights record of every member state is reviewed once every four years. UPR is meant to complement the work of the treaty bodies. The process is different from the "independent expert" review of the treaty bodies in that other member states and NGOs can take part in UPR discussions, and the Human Rights Council as a whole adopts a resolution that summarizes the outcome of the review. In this sense, UPR is a more high-profile and potentially more participatory process than the treaty body meetings. As of this writing in 2010, it is early to evaluate the impact of UPR, but some NGOs have criticized countries for trying to drown out the views of member states that are not their political allies.

  • Specialized human rights bodies: There are a few human rights bodies with specialized oversight mandates not tied to treaties, such as the Commission on the Status of Women (separate from the CEDAW Committee) and the Working Group on Arbitrary Detention, which focuses on the rights of prisoners and detainees. These bodies meet regularly, make country visits, and make public reports on government actions.

  • Special procedures: The UN "special procedures" consist of individual human rights experts who are authorized to investigate the actions of governments through country visits (if they can secure invitations) and other reviews and to present their findings to the Human Rights Council. These individuals, called "special rapporteurs" are assigned a topic - such as the right to health, the right to education, the right to food, gender-based violence, extrajudicial killing, torture, etc. - or a country or region (currently there are special rapporteurs on Burundi, Cambodia, the Democratic People's Republic of Korea, Haiti, Myanmar, the Palestinian territories, Somalia and Sudan).

  • Optional protocols: Most of the core treaties allow for individuals who claim that their rights have been violated but are unable to seek or obtain justice through national or regional mechanisms to make formal complaints to UN treaty bodies. The use of this mechanism is sometimes limited by the non-ratification of the so-called optional protocol for individual complaints by the state in question.

  • Regional bodies and courts: As noted above, there are regional human rights commissions in Africa (overseen by the African Union), the Americas (overseen by the Organization of American States) and Europe (mechanisms overseen by the Council of Europe such as the European Court of Human Rights as well as those of the European Union). The human rights courts in Africa and the Americas are new at this writing, but the European Court of Human Rights has a distinguished history of important jurisprudence, including many decisions related to public health.