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WUNRN
INTERNATIONAL LAW - SPECIFICITY OF
UN TREATY BODIES, INSTRUMENTS, MECHANISMS - VERY IMPORTANT FOR WOMEN'S UN
ADVOCACY
In International Law and United
Nations mechanisms, protocol, processes, there are very specific terms and
procedures that are defined and impact how social policy is documented,
submitted for Member State Ratification or other forms of approval, the issue
of Reservations, how International Treaties come into force, how they are
monitored, and what is the clear country (binding) obligation. CONVENTIONS are
binding international law treaties for states signing on.
CEDAW is a binding CONVENTION. The
UN Declaration on the Elimination of Violence Against Women is NOT legally
binding. Women's programs have regularly called for a Strategy for a Legally
Binding International Document on Violence Against Women. The path to this
would absolutely require an Advocacy Group with Governments leading, but
cross-sectoral and involving NGO's. Ultimately Governments would codify and
decide. It is a complex path, but very much needed, as indeed, Violence Against
Women is a major human rights issue all over the world. In this time of Beijing
+ 20, it is noteworthy that the Beijing Declaration and Platform for Action are
NOT mandatory.
Treaty Monitoring Bodies as the
CEDAW Committee also have specific procedures, including for reportage and
review. Member States submit Reports for their cycle of review, and NGO's can
submit Shadow Reports. These Alternative Reports can be significant but require
a clearly defined protocol, and often best with a collaboration, and even
advisory support, even budget. The process for Reports for Treaty Body review
are included on their websites - http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx
A path that some coalitions take is
to have a well strategized Resolution, leading possibly to a Study by the UN Human
Rights Council Advisory Committee, broadening the Resolution and asking for the
UN to Appoint an Official Working Group to craft a Declaration, which would be
presented to Member States, and then if voted, could continue the lengthy and
protocol demanding process and analysis to see if a Convention could be
possible. In all stages, solid committed groups of Member States must drive the
initiative forward and keep its momentum. NGO's as women's programs can be
catalysts, engaged parties, facilitators, communicators.
UN Convention on the Elimination of All Forms of Discrimination Against
Women - CEDAW
UN Declaration
on the Elimination of Violence Against Women
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http://www2.ohchr.org/english/bodies/treaty/glossary.htm
The seven
human rights treaty bodies have developed working methods and practices which
are broadly similar but which differ in certain important aspects. Terminology
adopted by the committees also varies in certain respects. This glossary is
intended to explain some of the important elements of the treaty body system
and highlight some of the most significant differences in terminology.
In June
2004, the third inter-committee meeting requested OHCHR, in collaboration with
the Division for the Advancement of Women, to submit "a proposal to the
fourth inter-committee meeting on the standardization of terminology used by
treaty bodies relating to the technical elements of their work." (A/59/254)
Click on a
word or phrase in the list on the right to see its definition.
Definitions
A committee
of independent experts appointed to monitor the implementation by States
parties of the core international human rights treaties. They are called
'treaty bodies' because each is created in accordance with the provisions of
the treaty which it oversees. In many important respects, they are independent
of the United Nations system, although they receive support from the United
Nations Secretariat and report of the General Assembly. Also referred to a the
"committee" or "treaty-monitoring body".
A treaty
body's interpretation of the content of human rights provisions, on thematic
issues or its methods of work. General comments often seek to clarify the
reporting duties of State parties with respect to certain provisions and
suggest approaches to implementating treaty provisions. Also called
"general recommendation" (CERD & CEDAW).
The term
used by CERD and CEDAW to refer to general
comments.
The
observations and recommendations issued by a treaty body after consideration of
a State party's report. Concluding observations refer both to positive aspects
of a State's implementation of the treaty and areas where the treaty body
recommends that further action needs to be taken by the State. The treaty
bodies are committed to issuing concluding observations which are concrete,
focused and implementable and are paying increasing attention to measures to
ensure effective follow-up to their concluding observations.
Another name
for concluding
observation.
Another name
for concluding
observation.
All treaty
bodies now formulate, usually at a pre-sessional
working group, on the basis of the State party
report and other information available to the treaty body (information from
UN specialized agencies, NGO submissions, etc.) a list of issues and questions
which is transmitted to the State party
in advance of the session at which the treaty body will consider the report.
The list of issues provides the framework for the constructive dialogue with
the State party's delegation. The delegation may respond to the issues and
questions orally during the session, but some committees encourage the State
party to submit written
responses to the list of issues in advance allowing the dialogue to move
more quickly to specificities.
The list of
isses is particularly important for treaty bodies facing a backlog
of reports awaiting consideration as it provides a source of up-to-date
information for the committee with regard to a State whose report may have been
awaiting consideration for as much as two years.
Lists of
issues are published as official documents and are available on the treaty bodies database.
Written
response to list of issues
Some States
parties respond to the treaty body's list of issues and questions in writing in
advance of the session at which their report will be considered by the
committee. Written responses to a list of issues constitute a supplement to or
update of the State party report.
Written
responses are not published as official documents but are available on the treaty bodies database.
All treaty
bodies have developed the practice of inviting States parties to send a
delegation to attend the session at which their report is being considered by
the committee in order to allow them to respond to members' questions and
provide additional information on their efforts to implement the provisions of
the relevant treaty. This procedure is not supposed to be adversial and the
committee does not aim to pass judgment on the State party in a judicial sense.
Instead the aim is to engage with the State party in a constructive dialogue
with the aim of assisting the Government in its efforts to implement the treaty
as fully and effectively as possible. The notion of constructive dialogue
underpins the view that the treaty bodies are not judicial bodies (even if some
of their functions are quasi-judicial) but rather are bodies created to monitor
the implementation of the treaties.
The
procedure by which a treaty body will consider the situation in a country at
one of its sessions in the absence of a report from the State party. The
procedure is used in cases where the report has been overdue for an excessive
period and the State party has not responded to the treaty body's requests for
a report. In many cases, States parties chose to submit a report to avoid the
review procedure; in other cases, States choose to send a delegation to the
treaty body's session and answer questions from the treaty body experts even
though they have been able to submit a report.
Consideration
of country situation in absence of a report
Another way
of describing the review
procedure.
The formal
rules adopted by a treaty body to govern the way in which it undertakes its
business. Each committee is empowered by the relevant treaty to adopt its own
rules of procedure. The rules of procedure usually cover such matters as
election of officers and procedures for adopting decisions especially where no
consensus can be reached. Rules of procedures are related to, but distinct
from, working methods.
The
procedures and practices developed by each treaty body to facilitate it in its
work. Such practices are not always formally adopted in the rules of procedure
of the Committee. The working methods of each treaty body are constantly
changing in response to the workload and other factors. In recent years, there
there has been a move, through the annual meeting of chairpersons, to
streamline and harmonize the working methods of the treaty bodies.
Reporting guidelines for States parties
Each treaty
body has produced written guidelines for States parties giving advice on the
form and content of the reports which States are obliged to submit under the
relevant treaty. These guidelines vary in approach to some degree: some
committees have provided detailed guidance on an article-by-article basis
whereas other have given more general guidance (see Compilation
of Reporting Guidelines HRI/GEN/2/Rev.2).
Ratification, acceptance or approval
Ratification,
acceptance and approval all refer to the act undertaken on the international
plane, whereby a State establishes its consent to be bound by a treaty. Most
multilateral treaties expressly provide for States to express their consent to
be bound by signature subject to ratification, acceptance or approval.
Providing
for signature subject to ratification allows States time to seek approval for
the treaty at the domestic level and to enact any legislation necessary to
implement the treaty domestically, prior to undertaking the legal obligations
under the treaty at the international level. Once a State has ratified a treaty
at the international level, it must give effect to the treaty domestically.
This is the responsibility of the State. Generally, there is no time limit
within which a State is requested to ratify a treaty which it has signed. Upon
ratification, the State becomes legally bound under the treaty.
Ratification
at the international level, which indicates to the international community a
State's commitment to undertake the obligations under a treaty, should not be
confused with ratification at the national level, which a State may be required
to undertake in accordance with its own constitutional provisions before it
expresses consent to be bound internationally. Ratification at the national
level is inadequate to establish a State's intention to be legally bound at the
international level. The required actions at the international level shall also
be undertaken.
Accession is
the act whereby a State that has not signed a treaty expresses its consent to
become a party to that treaty by depositing an "instrument of
accession" with the Secretary-General of the United Nations. Accession has
the same legal effect as ratification, acceptance or approval. However, unlike
ratification, which must be preceded by signature to create binding legal
obligations under international law, accession requires only one step, namely,
the deposit of an instrument of accession. The Secretary-General, as
depositary, has tended to treat instruments of ratification that have not been
preceded by signature as instruments of accession, and the States concerned
have been advised accordingly.
The
conditions under which accession may occur and the procedure involved depend on
the provisions of the relevant treaty. Accession is generally employed by
States wishing to express their consent to be bound by a treaty where the
deadline for signature has passed. However, many modern multilateral treaties
provide for accession even during the period that the treaty is open for signature.
See articles 2(b) and 15 of the Vienna Convention 1969.
Definitive
entry into force
Entry into
force of a treaty is the moment in time when a treaty becomes legally binding
on the parties to the treaty. The provisions of the treaty determine the moment
of its entry into force. This may be a date specified in the treaty or a date
on which a specified number of ratifications, approvals, acceptances or
accessions have been deposited with the depositary. The date when a treaty
deposited with the Secretary-General enters into force is determined in
accordance with the treaty provisions.
Entry into
force for a State
A treaty
that has already entered into force may enter into force in a manner specified
in it for a State or international organization that expresses its consent to
be bound by it after its entry into force. See article 24 of the Vienna
Convention 1969.
A
reservation is a statement made by a State by which it purports to exclude or
alter the legal effect of certain provisions of a treaty in their application
to that State. A reservation may enable a State to participate in a
multilateral treaty that it would otherwise be unable or unwilling to
participate in. States can make reservations to a treaty when they sign, ratify,
accept, approve or accede to it. When a State makes a reservation upon signing,
it must confirm the reservation upon ratification, acceptance or approval.
Reservations
cannot be contrary to the object and purpose of the treaty, which means that a
State may, when signing, ratifying, accepting, approving or acceding to a
treaty, make a reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include the reservation in question, may be made.
Reservations
after deposit
Where the
Secretary-General, as depositary, receives a reservation after the deposit of
the instrument of ratification, acceptance, approval or accession that meets
all the necessary requirements, the Secretary-General circulates the
reservation to all the States concerned. The Secretary-General accepts the
reservation in deposit only if no such State informs him that it does not wish
him to consider it to have accepted that reservation.
Objections
to reservations
Where a
State concerned lodges an objection to a treaty with the Secretary-General
after the end of the 12-month period, the Secretary-General circulates it as a
"communication".
Many States
have formulated reservations to the International Covenant on Civil and
Political Rights, 1966, and the Convention on the Elimination of All
Forms of Discrimination against Women, 1979, subjecting their obligations
under the treaty to domestic legal requirements. These reservations, in turn,
have attracted a wide range of objections from States parties (see Multilateral
Treaties Deposited with the Secretary-General ST/LEG/SER.E/19,
volume I, part I, chapter IV).
Effect of
objection on entry into force of reservations
An objection
to a reservation "... does not preclude the entry into force of the treaty
as between the objecting and reserving States unless a contrary intention is
definitely expressed by the objecting State" (article 20(4)(b) of the
Vienna Convention 1969). Normally, to avoid uncertainty, an objecting State
specifies whether its objection to the reservation precludes the entry into
force of the treaty between itself and the reserving State. The
Secretary-General circulates such objections.
If a State
does not object to a reservation made by another State, the first State is
deemed to have tacitly accepted the reservation (article 21(1) of the Vienna
Convention 1969).
Withdrawal
of reservations
A State may,
unless the treaty provides otherwise, withdraw its reservation or objection to
a reservation completely or partially at any time.
Modifications
to reservations
An existing
reservation may be modified so as to result in a partial withdrawal or to
create new exemptions from, or modifications of, the legal effects of certain
provisions of a treaty. A modification of the latter kind has the nature of a
new reservation. The Secretary-General, as depositary, circulates such
modifications and grants the States concerned a specific period within which to
object to them. In the absence of objections, the Secretary-General accepts the
modification in deposit.
