Session 4 : The effectiveness of international law in domestic legal systems: focus on core UN Human Rights Treaties

what are ‘core’ UN human rights treaties ?

• Viljoen and Murray 2022

UN human rights treaties that provide for self- standing, separate supervisory bodies composed of independent experts

Core UN human rights treaty bodies

3 new Treaties

Devp of the system

states have signed the treaties but not all of them have ratified the protocols giving jurisdiction to treaty bodies

Defining and Measuring ‘Impact’

Impact = overall domestic effect, influence or repercussions of the 9 core UN HR treaties + findings and recommendations when they find a violation

Defining and Measuring ‘Impact’

• direct impact

observable change in the conduct of those the treaty directly target

Defining and Measuring ‘Impact’

• Indirect impact

affects a much broader range of stakeholders

Defining and Measuring ‘Impact’

• material impact

entails tangible effects that in some way are attributable to the UN treaty system

Ex : adoption of laws

Defining and Measuring ‘Impact’

• symbolic impact

Effet on ideas, understanding and narrative framing

Enhanced compliance/impact thanks to treaty bodies?

Legal effects and State compliance through implementation measures

Legal effects: the debate over the direct effect of international law

• Jurisdiction of the Courts of Danzig = states can conclude a treaty that created individual rights that should be enforceable in domestic courts

• Van Gend en Loos [1963] = direct effect of EU law – required by EU law itself

• But no direct effect of EFTA or EEA treaties ! CJEU: Draft agreement between the European Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, Opinion 1/91 [1991] ECR 1–6079

• Direct effect’ of international law outside the EU: some instances across the globe (international law used as direct basis for a decision in an individual case) but in very heterogeneous conceptions and practices

Main forms of direct effect in international law

What about primacy?

Effects and Impacts of core UN human rights treaties in Spain

Effects and Impacts of core UN human rights treaties in Spain

• Angela Gonzalez Careno 2018

1 case changed Spain’s views : after a decision from the CEDAW, an individual came in front of the Court of Spain who refused to give them reparation because the CEDAW recommendations were not binding : Spain’s SC overruled the decision and affirmed that Spain was bound by the CEDAW Committee and had to award reparation

Effects and Impacts of core UN human rights treaties in Spain

• Angela Gonzalez Careno 2018 suite

Backtrack 2020 : reverses the position, this time concerning the views of the UN Human Rights Committee in a case concerning the right to an appeal in criminal matters (Art. 14(5) of the ICCPR, Case 1381/2005, views of 2007); according to this decision, only judgments of the ECtHR are binding

Effects and Impacts of core UN human rights treaties in Spain

• Ruben Calleja

Back to the 2018 position : application of the Convention on the rights of the people with disabilities and awarded compensation

Why ?

• 

Effects and Impacts of core human rights treaties in Finland

• fragmented structures + ressources channeled

• no coordination

• compliance deficit

• more focused on the ECHR

• better compliance with the CRC and the CRPD w/ national structures monitaring

• CEDAW stands out as the UN treaty having received the least serious attention and the weakest institutional back- up at the national level in Finland.

• importance of civil society : submission of a new monitoring work

• implementation characterized with a certain selectivity

• incoherence between external and internal human rights policies

• marginal role of education regarding aspects of international law and human rights at the university level, including in law schools

The UN Convention on the Rights of the Child

Status of the UN CRC

Key features of the CRC

Key features of the CRC : 3 pillars

• Provision

• Participation

• Protection

Key features of the CRC : 4 general ppl

Non discrimination (Article 2)

Open list

Broad provision

Best Interests (Article 3.1)

“Shall be a primary consideration”

What does it mean ? : interpreted by the UN Committee

• A substantive right - requiring consideration of the child’s interests over and above other factors whenever a decision is made concerning the child, even if there are other compelling interests at stake.

• An interpretative legal principle - interpretation shall be afforded which most effectively serves the child’s best interests should be chosen; and

• A procedural right -  any decision which affects a child must be arrived at by a process which includes an evaluation of the possible impact on the child.

Right to be heard  (Article 12)

Right to express freely their own views : they should be part of the proceedings (directly, by representatives, by authorities)

Hearing of the Child - compare

Before the right to express their view they have a right to be informed with the ECECR

How to enforce the right of the child to be heard ?

General comment on art.12

starting point of an intense exchange

ongoing process

Child protection: Article 19 CRC

Requires protection even from the parents : obligation on the State

Effects and Impacts of the CRC: Direct applicability?

• French courts position

• Belgian courts position

No direct effet of art. 3.1 at first but recognized in 2005

No direct effect at all

The Committee on the Rights of the Child

Example of an individual communication procedure: 136/2021 Camila v Peru

• 13 yo victim of rape + no access to legal or therapeutic abortion

• prosecuted for self abortion

• decision : lack of info, lack of access to abortion, no right to life or devp, no care for mental health

• revictimization : violation off the right to privacy, discrimination,

Conclusions