Part 3 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

By MARISSA GOLDFADEN

Topic 3: UN legal instruments protecting minorities

Section 1: Introduction to treaties

A treaty is a legal agreement between states, drafted by them. Within the UN, when the draft is completed, the General Assembly approves or adopts the text. The latter happens through a vote or by consensus. Each state must then decide whether to become a party to the treaty. If a state decides to become a party to the treaty, it must sign the treaty, showing its intention to become legally bound in the future. The state then ratifies the treaty, confirming it will be legally bound by it. This can also be achieved through accession (ratification without a prior signature) or succession, meaning a state expresses its willingness to be bound by international agreements that were entered into by a predecessor state or states. After a certain number of states have ratified, acceded or succeeded to a treaty, the treaty ‘enters into force,’ whereby it becomes legally effective for those states.

When a state ratifies, accedes to, or succeeds to a treaty, it can modify some of the provisions by making a reservation–a statement that changes, or even negates, the provision in an article or part of an article of a treaty. MRG defines an article as “an item in a treaty that lays out an obligation of the states that are bound by the treaty.” Reservations are allowed, except if the treaty expressly forbids it, or if the reservation is ‘incompatible with the object and purpose of the treaty.’ States parties to a treaty can enter a declaration, often a definition or a clarification of what the state believes the treaty provision to mean. MRG points out here that there are two uses of the term ‘Declaration’ in the context of international law:

  • The main use of the term is as an international agreement between states that is not legally binding. For example, the Universal Declaration of Human Rights (UDHR) and the UN Declaration on the Rights of Minorities (UNDM).
  • As seen here, a declaration can also be a statement of clarification about a provision of a treaty.

Treaties have both strengths and weaknesses. Their strength lies in the fact that unlike declarations, treaties are legally binding. Moreover, when a state ratifies an international human rights treaty, it is compelled to adjust domestic legislation in order to comply with treaty legislation. On the flip side, a treaty is only legally binding on the states which have ratified it. Reservations and declarations to human rights treaties can also constitute a major problem.

Section 2: UN treaties and minorities

There are eight main UN treaties protecting a range of human rights:

  • International Covenant on Civil and Political Rights (ICCPR)
    • Article 27 of the ICCPR specifically refers to minorities. It is the main legally binding provision on minorities in human rights law. It provides that persons belonging to minorities ‘shall not be denied’ the right ‘to enjoy their own culture, to profess and practice their own religion, or to use their own language.’
  • International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
  • International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  • Convention Against Torture (CAT)
  • Convention on the Rights of the Child (CRC)
  • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
  • International Convention on the Rights of Persons with Disabilities (CRPD)

Another important treaty relating to minority rights is the International Convention on the Prevention and Punishment of the Crime of Genocide. Article I states, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Article II defines genocide.

In order to address the issue of governments complying with treaty provisions, the UN has put in place human rights monitoring committees, so-called treaty monitoring bodies made up of human rights experts from different states. These experts are nominated by their governments, elected by states party to the treaties for fixed, renewable four-year terms, and independent, i.e., not representative of their state’s interests.

A treaty monitoring body has been created for each human rights treaty:

Human Rights Treaty Treaty Monitoring Body
International Covenant on Civil and Political Rights (ICCPR) Human Rights Committee (CCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR) Committee on Economic, Social and Cultural Rights (CESCR)
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Committee on the Elimination of Racial Discrimination (CERD)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee on the Elimination of Discrimination against Women (CEDAW)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) Committee Against Torture (CAT)
Convention on the Rights of the Child (CRC) Committee on the Rights of the Child (CRC)
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)
Convention on the Rights of Persons with Disabilities (CRPD) Committee on the Right of Persons with Disabilities (CRPD)

Treaty-monitoring bodies perform four main functions: reviewing state reports, interpreting the treaty, considering individual complaints, and thematic/general discussions.

Image: gistprobono.org

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