IHRL Day 3: Charter v/s Treaty bodies

What are the two parallel systems of the UN human rights framework?

(1) CHARTER-BASED bodies — political, created by UN Charter, apply to all UN member states, made up of state representatives. (2) TREATY-BASED bodies — technical, created by specific treaties, apply only to ratifying states, made up of independent experts.

When was the Human Rights Council created? What did it replace and why?

Created 2006 by UNGA Resolution 60/251. Replaced the Commission on Human Rights which had lost credibility — countries like Libya and Sudan were sitting on it while committing atrocities. HRC has stronger membership criteria and UPR mechanism.

What is the Universal Periodic Review (UPR)?

Mechanism of the Human Rights Council. Every UN member state (all 193) is reviewed every 4.5 years — no exceptions. Peer review: states review states. Civil society can submit information. State responds to recommendations. Advantage: universality. Weakness: political — powerful states get easier treatment.

What is a Special Rapporteur? How is it different from a Working Group?

Special Rapporteur = ONE independent expert appointed by HRC with a thematic or country mandate. Working Group = FIVE independent experts. Both can: visit countries (if invited), send urgent appeals to governments, receive individual complaints, report annually to HRC and UNGA. Power = naming and shaming only. Cannot enforce anything.

CRITICAL DISTINCTION: Human Rights Council vs Human Rights Committee

Human Rights COUNCIL: charter-based, POLITICAL body, 47 STATES as members, created 2006, oversees all human rights broadly. Human Rights COMMITTEE: treaty-based, LEGAL body, 18 independent EXPERTS, monitors ICCPR specifically. Completely separate institutions. Never confuse them.

What is the OHCHR? When created? Who leads it?

Office of the High Commissioner for Human Rights. Created 1993 — directly after Vienna Declaration which demanded stronger HR machinery. Led by the HIGH COMMISSIONER — UN's top HR official, currently Volker Türk (since 2022). Role: secretariat support to treaty bodies and HRC, country field offices, technical assistance, public advocacy.

Name all 9 treaty bodies with their corresponding treaty

• ICCPR (1966) – Human Rights Committee (18 members). Features OP1 for individual complaints. India ratified.

• ICESCR (1966) – CESCR (18 members). Features 2008 Optional Protocol for individual complaints. India ratified.

• ICERD (1965) – CERD Committee (18 members). Features Early Warning and Urgent Action procedures. India ratified.

• CEDAW (1979) – CEDAW Committee (23 members – Largest). Features an Inquiry Procedure for grave/systematic violations. India ratified (with reservations on Arts 5(a) and 16(1)).

• CAT (1984) – Committee Against Torture (10 members – Smallest). Features a mandatory Inquiry Procedure. India signed (1997) but has NOT ratified.

• CRC (1989) – CRC Committee (18 members). Features three Optional Protocols (Armed Conflict, Sale of Children, and Communications). India ratified (implemented domestically via the JJ Act and POCSO).

• CMW (1990) – Committee on Migrant Workers (14 members). Mainly ratified by "sending" states; lacks "host" state participation. India has neither signed nor ratified.

• CRPD (2006) – CRPD Committee (18 members). Focuses on the social and human rights model of disability. India ratified.

• ICPPED (2006) – Committee on Enforced Disappearances (10 members). Features an urgent action and inquiry procedure. India signed (2007) but has NOT ratified.

What are the 4 tools every treaty body has?

(1) STATE REPORTS — periodic mandatory reports + concluding observations; (2) GENERAL COMMENTS — authoritative treaty interpretations; (3) INDIVIDUAL COMMUNICATIONS — via Optional Protocol, after exhausting domestic remedies; (4) INQUIRY PROCEDURE — for grave/systematic violations (available to CAT, CEDAW, CRPD, CED)

What is CERD's unique feature that no other treaty body has?

EARLY WARNING PROCEDURE. CERD can flag situations of racial discrimination BEFORE they escalate into full-blown violence. Proactive early intervention. No other treaty body has a comparable mechanism.

Why is the CMW Committee largely toothless?

Because the states that HOST migrant workers (US, UK, most of Europe, Gulf states) have NOT ratified the CMW. Only SENDING countries (poorer states) ratified it. The states with actual power over migrants refuse to be bound.

What makes the CED Committee's urgent action mechanism unique?

If someone is CURRENTLY disappeared — right now, still potentially alive — family members can file an URGENT ACTION REQUEST in real time while there is still a chance to find the person. No other treaty body has a real-time intervention mechanism like this.

CERD Committee — treaty, number of experts, special feature

Treaty: ICERD (racial discrimination) 1965. 18 experts. Actually the OLDEST treaty body in operation (ICERD predates the two covenants). Special feature: early warning procedure.

CEDAW Committee — treaty, number of experts, special feature

Treaty: CEDAW 1979. 23 experts — LARGEST committee. Individual complaints via OP 1999. Inquiry procedure for grave violations. India ratified CEDAW but with reservations on Arts 5(a) and 16(1).

CAT Committee — treaty, number of experts, special feature, India?

Treaty: CAT 1984. 10 experts — SMALLEST committee. Art 20 inquiry procedure for systematic torture. INDIA HAS NOT RATIFIED CAT — CAT Committee has no jurisdiction over India.

CRC Committee — treaty, number of experts, how many Optional Protocols?

Treaty: CRC 1989. 18 experts. THREE Optional Protocols: (1) children in armed conflict, (2) sale of children, (3) communications procedure 2011.

CRPD Committee — treaty, India connection, key conceptual shift

Treaty: CRPD 2006. 18 experts. INDIA RATIFIED IN 2007 — one of the earliest ratifications. Key shift: from MEDICAL MODEL of disability (disability is the problem) to SOCIAL/HUMAN RIGHTS MODEL (societal barriers are the problem).

India and treaty bodies — 5 key facts

(1) Ratified: ICCPR, ICESCR, CEDAW, CERD, CRC, CRPD. (2) NOT ratified: CAT, ICPPED (enforced disappearance). (3) Has NOT accepted individual complaint mechanisms under most treaties. (4) UPR reviews have flagged: custodial torture, AFSPA immunity, Dalit discrimination, treatment of minorities. (5) India "notes" (politely ignores) many recommendations — e.g. on AFSPA and custodial torture.

What are 4 structural weaknesses of the treaty body system?

(1) NON-BINDING outputs — Views and Concluding Observations cannot be enforced like court judgments. (2) RATIFICATION GAPS — states must ratify treaty AND Optional Protocol separately; many don't. (3) REPORTING BACKLOG — system overwhelmed, reports sit unreviewed for years. (4) POLITICISATION — even "independent" experts are state-nominated; powerful states treated more gently.

What does "exhausting domestic remedies" mean and why is it required?

Before bringing an individual communication to a treaty body, the individual must first try every available legal remedy in their own country (courts, tribunals, etc.). Required because: (1) respects state sovereignty, (2) gives state chance to fix its own violations, (3) prevents treaty bodies from being overwhelmed with cases that domestic courts could handle.