Using Human Rights Mechanisms for Litigation and Advocacy

Introduction
Resources
Key Terms

In addition to the human rights-based approaches listed above, health and human rights advocates may lodge complaints or file reports with regional or international human rights bodies (technically known as mechanisms). In this section we highlight two types of international human rights mechanisms: courts and human rights bodies.

Courts: act in a judicial capacity and issue rulings that are binding on governments.

Human rights bodies: examine reports submitted by governments to determine compliance with human rights obligations. In some cases they have the authority to examine individual complaints of human rights violations.

Introductory International Law Concepts

States are only legally bound by a treaty if they are a party to that treaty. The State must have ratified or acceded to the treaty to be become a party to the treaty and legally obligated to implement it. Ratification occurs when a State signs the treaty and then follows its own national requirements to become legally bound by the treaty. Signing the treaty does not oblige the State to ratify the treaty nor does it make the treaty legally binding upon the State. Accession has the same legal effect as ratification. Accession occurs without signing of the treaty but when the State follows its own national requirements to become legally bound by the treaty. Both accession and ratification create a legally binding obligation to the treaty. This section highlights how treaties are legally enforced against States who are parties to the treaty so it is important to determine whether the country you are seeking to hold accountable is a party to the treaty you are seeking to use.1 

It is also important to recognize the difference between ‘hard’ and ‘soft’ law. Hard law consists of treaties that are legally binding and enforceable against a state. This includes all international or regional treaties that a State has ratified or acceded to. It also includes national law. Soft law consists of international, regional or domestic instruments that are not legally binding. Soft law can include interpretations of treaties issued by treaty bodies, resolutions and declarations, principles, or guidelines. Complaints and reports filed with human rights enforcement mechanisms must be based upon a violation of ‘hard’ law – a treaty article. Soft law is often utilized to bolster or supplement an argument by demonstrating common interpretation or customary implementation of a treaty. Soft law, however, can evolve into hard law when the consistent conduct of states conforms to the soft law, out of a sense of its own obligation. This is known in international law as ‘customary law’. The distinction between hard and soft law and defining customary law can be controversial.

Treaties and Corresponding Enforcement Mechanisms

Note: This list includes a small sample of the treaties and enforcement mechanisms that are commonly used to advocate for health and human rights.

International Treaty Enforcement Mechanism
+ Description
Mandate
International Covenant on Civil and Political Rights (ICCPR ) Human Rights Committee (HRC) UN Human Rights Treaty Body 1. Reviews periodic reports submitted by States to monitor compliance with ICCPR. Issues recommendations to States, known as concluding observations.2. Examines individual complaints filed against States party to the Optional Protocol.3. Examines inter-State complaints.4. Publishes interpretation of ICCPR articles, known as General Comments.
International Covenant on Economic, Social, and Cultural Rights (ICESCR) Committee on Economic, Social and Cultural Rights (CESCR) UN Human Rights
Treaty Body
1. Reviews periodic reports submitted by States to monitor compliance with ICCPR. Issues recommendations to States, known as concluding observations.2. Examines individual complaints filed against States party to the Optional Protocol.3. Publishes interpretation of ICCPR articles, known as General Comments.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee on the Elimination of Discrimination Against Women (CEDAW Committee)UN Human Rights Treaty Body 1. Reviews periodic reports submitted by States to monitor compliance with CEDAW. Issues recommendations to States, known as concluding observations.2. Examines individual complaints filed against States party to the Optional Protocol.3. May initiate confidential inquiry into situations of grave or systematic violations of States party to the Optional Protocol.4. Publishes interpretation of CEDAW articles, known as general recommendations.
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Committee on the Elimination of Racial Discrimination (CERD) UN Human Rights
Treaty Body
1. Reviews periodic reports submitted by States to monitor compliance with ICERD. Issues recommendations to States, known as concluding observations.2. Conducts preventative measures. These are early-warning measures aimed at preventing existing situations from escalating and urgent procedures responding to problems requiring immediate attention. Issues decisions, statements or resolutions.3. Examines inter-State complaints.4. Examines individual complaints filed against States party to the Optional Protocol.5. Publishes interpretation of ICERD articles, known as General Comments.
International Treaty Enforcement Mechanism+ Description Mandate
Convention on the Rights of the Child (CRC) Committee on the Rights of the Child (CRC Committee)UN Human Rights
Treaty Body
1. Reviews periodic reports submitted by States to monitor compliance with CRC. Issues recommendations to States, known as concluding observations.2. Reviews additional reports from States party to the Optional Protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.3. Optional Protocol to hear individual complaints adopted in December 2011, but has not entered into force. Anticipated to do so in the near future.4. Publishes interpretation of CRC articles, known as General Comments.

 

Regional Treaty Enforcement Mechanism+ Description Mandate
African Charter on Human and Peoples’ Rights (ACHPR) African Commission on Human and Peoples’ Rights(ACHPR Commission)Regional Human Rights Treaty Body 1. Promotion of human and peoples’ rights

a. The Commission carries out sensitization, public mobilization and information dissemination through seminars, symposia, and conferences.

b. Conducts promotional missions.

2. Protection of human and peoples’ rights

a. Reviews periodic reports submitted by States to monitor compliance with the Charter. Issues recommendations to States, known as concluding observations.

b. Receives inter-state and individual communications and issues recommendations.

c. Has friendly settlement of dispute and urgent appeal mechanisms.

d. Special Mechanisms in the form of Special Rapporteurs, working groups or committees that investigate and report on specific human rights issues

e. Conducts protective missions.

3. Interpretation of the Charter

a. Interprets the provisions of the Charter upon a request by a state party, organs of the African Union or individuals. No organ of the AU has referred any case of interpretation of the Charter to the Commission.

b. Adopts resolutions expounding on the Charter provisions. Resolutions are generally 1) thematic, 2) administrative, or 3) country specific.

 

Regional Treaty Enforcement Mechanism+ Description Mandate
African Charter on Human and Peoples’ Rights (ACHPR) and The Protocol on the Establishment of an African Court on Human and Peoples’ Rights African Court on Human and Peoples’ Rights (ACHPR)Regional Human
Rights Court
1. Judicial body that hears cases and disputes alleging violations of the African Charter on Human and Peoples’ Rights, the Protocol on the Establishment of an African Court on Human and Peoples’ Rights, and any other human rights treaty ratified by the state concerned.2. The Court may also render advisory opinion on any matter within its jurisdiction. The advisory opinion of the Court may be requested by the African Union, member states of the African Union, African Union organs and any African organisation recognised by the African Union.
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) European Court of Human Rights (ECtHR)Regional Human Rights Court 1. Judicial body that rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.
European Social Charter (ESC) [1996 Revised version] European Committee of Social Rights (ECSR)Regional Human Rights Treaty Body 1. Reviews periodic reports submitted by States to monitor compliance with ESC and adopts conclusions.2. Examines collective complaints and adopts decisions. Only organizations that have enrolled with the ECSR are entitled to submit complaints, and these are limited to EU and national trade organizations and employers’ organizations as well as NGOs.
American Convention on Human Rights (ACHR) Inter-American Court of
Human Rights (IACrtHR)Regional Human Rights Court
1. Judicial body that rules on cases alleging violations of the American Convention on Human Rights. The Court receives cases only from States party to the Convention or cases referred by the Inter-American Commission on Human Rights. Also, in addition to being a State party to the Convention, States must also submit to the jurisdiction of the Court which may be done case by case or in a one-time declaration.2. The Court may also issue advisory opinions submitted by OAS agencies and States regarding the interpretation of the ACHR or other human rights treaties in the American States.
American Convention on Human Rights (ACHR) American Declaration of the Rights and Duties of Man (ADRDM) OAS Charter Inter-American Commission of Human Rights (IACHR)Regional Human Rights Treaty Body 1. Examines petitions filed by persons, NGOs, and State parties who have formally recognized the jurisdiction of the Court. Has the authority to refer the case to the IACHR.2. Monitors the human rights situation in member States. This includes, among other activities, issuing country reports and conducting country visits.3. Issues studies or reports on thematic priority areas.

1 For more introductory information on international law and treaties, see: http://treaties.un.org/doc/source/events/2012/Press_kit/fact_sheet_1_english.pdf.

For more information on key treaty terms see: http://treaties.un.org/Pages/Overview.aspx?path=overview/definition/page1_en.xml#treaties.