Other Human Rights Treaties to the International Bill of Rights under Our Global Human Rights System
06 Oct 2018
This chapter was written as part of the author's graduation project for his MA in International Law and the Settlement of Disputes at the UN University for Peace in Costa Rica.
The International Bill of Human Rights with its three components of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, contains provisions that cover almost every aspect of human rights that are needed to maintain human dignity and security. The two Covenants were the first human rights treaties of general nature, but they were not the first human rights treaties. But before their signing in 1966, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the General Assembly of the United Nations in 1948. Another important human rights treaty predating the two Covenants was the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted on 21 December 1965. The international community also felt the need to adopt conventions and treaties that deal with specific issues, or specific groups of people. The reason behind this legitimate concern was that certain issues, such as torture and enforced disappearance, and certain groups such as women and children, migrant workers and people with disabilities, because of historical, cultural, and social reasons, needed, in addition to the two Covenants, specific conventions and treaties that address their fundamental human rights, thus providing them with additional protection under international law. The following is an overview of the four main additional human right treaties to International Bill of Rights in our global human rights system.
1) The International Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination was opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965, and it entered into force on January 4th, 1969. The rapid process of the elaboration and entry into force of this Convention in comparison to other human rights treaties was due to the pressure that African countries exercised at the United Nations. During the decolonization period of the sixties and seventies, the number of newly independent countries, especially African countries, significantly increased the membership of the United Nations and its organs. This increase indicated that the main area of concern was the decolonisation process and racial discrimination. Thus, the drafting and adoption of this Convention cannot be separated from two historical events taking place at that time: the decolonization process, which was set in motion following the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the institutionalised racism and racial discrimination in South Africa (The Apartheid Regime). By the eighties, the process of decolonization had ended for most of the countries, and hence the agenda in terms of racial discrimination moved away from the decolonisation issue, and became more focused on different forms of racial discrimination. Currently, 179 states are parties to the Convention.
The International Convention on the Elimination of All Forms of Racial Discrimination, (CERD), is the most important of the general instruments that develop the fundamental norm of the United Nations Charter, by now accepted into the corpus of customary international law, requiring respect for and observance of human rights and fundamental freedoms for all, without distinction as to race. It has been eloquently described as "the international community's only tool for combating racial discrimination which is at one and the same time universal in reach, comprehensive in scope, legally binding in character, and equipped with built-in measures of implementation. "In contradiction to the Genocide Convention, which deals with one particular human right in more detail (the protection of national, racial, ethnic, and religious minorities from threats to their very existence), CERD deals with a particular form of discrimination in all its aspects: racial discrimination, that is discrimination based on race, colour, descent, national or ethnic origin". Although the Convention does not define "race", Article 1(1) of the Convention defines racial discrimination as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of human rights and fundamental freedom in political, economic, social, cultural, or any other field of public life."
The Convention is divided into three parts. The first part deals with the obligation of the state parties to the Convention, the second part deals with the organisation of the Committee on the Elimination of Racial Discrimination (See below), and the third part deals with the signatures, ratifications, and accessions to the Convention. Article 5 of the Convention names the essential rights that should be guaranteed to all persons, without distinction as to race, colour, or ethnic origin. Among these rights are civil/political rights such as the right to participate in elections, right to nationality, and right to freedom of thought and expression; and socio-economic rights, such as: the right to work, right to housing, right to public health, and right to education and training.
Racial Discrimination is related to power inequalities between different groups that might be based on the grounds of race, colour, descent, origin or any other respect. Racial Discrimination sometimes becomes a condition under which many people are obliged to live their lives, thus affecting their access to and enjoyment of fundamental human rights. Racial Discrimination not only includes measures that are clearly discriminatory, but also those that might be considered "indirect discrimination." Indirect Discrimination refers to rules, practices, and policies that although appear neutral, have a disproportionate impact on certain groups (see L.R. et al. v. Slovak Republic).
CERD establishes a Committee to monitor the implementation of the treaty in its Article 8. Article 14 of the Convention, gives the Committee the capacity to receive and consider petitions from individuals or groups of individuals who claim that rights set forth in the Convention are violated by the state party, only, and only if the state party to the Convention recognises the competence of the Committee to receive such petitions.
One of the "controversial" aspects of the Convention lies in the fact that it requires states to penalise racist hate speech hate speech, and to criminalize membership in racist organisations in its Article 4, which states that states "shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred", and "shall declare illegal and prohibit organisations and all other propaganda activities which promote and incite racial discrimination".
CERD was the first international human rights treaty at the United Nations level to establish a mechanism for monitoring the compliance of states parties with anti-discrimination standards. Although there is no universal ratification of the treaty, it is still one of the most widely ratified human rights instrument in the treaty body system. The widespread ratification of this treaty shows the widespread consensus that exists in the world to fight racism in its all forms, which is one of the most durable injustices and violations of human dignity.
Racial and ethnic discrimination continues to be a major human rights problem in the world today facing both minority and sometimes even majority populations. Moreover, "new" forms of racial discrimination have surfaced relating to the position of indigenous peoples, minorities, immigrants and asylum seekers. It is also important to remember that "there is little doubt that the right to equality and non-discrimination has the character of jus cogens under international law, because this right appears in both UDHR and ICCPR." Moreover, in the Barcelona Traction Case, the International Court of Justice referred to the category of erga omnes obligations as including specifically “the basic human rights of the human person, including protection from slavery and racial discrimination"
2) The Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol
On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. Currently, 189 states are parties to CEDAW.
There are certain persons and groups, who are especially vulnerable for victimisation and human rights abuses for various historical, cultural, structural, and other reasons. Because they are more likely to suffer violations of their human rights and fundamental freedoms, some such vulnerable groups are provided with additional protections under international law. Among those vulnerable individuals and groups are children, women, disabled persons, ethnic/linguistic/religious minorities, indigenous peoples, and refugees. Hence, there are specific instruments and treaties that address such vulnerable groups, and provide them with targeted support in areas that are overlooked or underserved by the more general human rights treaties.
The Convention on the Elimination of All Forms of Discrimination Against Women was the culmination of more than 30 years of work by the United Nations Commission on the Status of Women (CSW), a body established in 1946 to monitor the situation of women and to promote women's rights. The work of the Commission was important to bring into light areas where women and girls were denied equality with men. From 1949 till 1962, CSW developed a number of agreements that protect women’s right to nationality, and also their rights in politics and marriage. In the mid 60s, the Commission started to prepare an instrument called the Declaration on the Elimination of Discrimination against Women. This document talks about the equal rights of women and men. Although governments agreed to the Deceleration, it did not impose legal obligations on them. Then a World Conference was held in 1975 (UN International Women's Year), where it was agreed that a convention on the elimination of discrimination against women should be written. The 1976-1985 decade was subsequently declared to be the United Nations' Decade for Women. During this time, the United Nations agreed that it needed a Convention (CEDAW). Among the international human rights treaties, CEDAW takes an important place in bringing the female half of humanity into the focus of human rights concerns. The Convention establishes not only an international bill of rights for women, but also an agenda for action by countries to guarantee the enjoyment of those rights.
The preamble of the Convention explicitly mentions that discrimination against women still continues today. Article 1 of the Convention defines discrimination as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field," thus calling for the elimination of de jure and de facto discrimination against women. Moreover, the Convention gives a positive affirmation to the principle of equality in its Article 3.
The Convention covers three dimensions of the situation of women. The civil rights and the legal status of women are dealt with in great detail. Moreover, the Convention is also concerned with the dimension of human reproduction as well as with the impact of cultural factors on gender relations. Concerning the political rights, the Convention guarantees women the right to vote, hold public offices, and exercise public functions. The Convention also establishes the right of women to statehood, irrespective of their marital status. CEDAW asserts the full equality of women in civil and business matters, and when it comes to issue of marriage and family relations, it asserts the equal rights and obligations of women and men with regards to choice of spouse, parenthood, personal rights and command over property.
CEDAW also addresses the reproductive rights of women, and establishes provisions for maternity protection and child-care. It is the only human rights treaty which mentions family planning. Also, CEDAW is closely connected to the Convention on the Rights of the Child (CRC). Using the CRC and CEDAW together works better for the rights of girls and women in all stages of their lives. The Convention enlarges the understanding of human rights, recognises the influence of culture and tradition in limiting the ability of women to enjoy their fundamental rights, and calls for the denunciation of "prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women" (Article 5). The Convention also creates a monitoring body, called the Committee on the Elimination of Discrimination against Women. The Committee's mandate is defined in the Articles 17 to 30.
One of the most important aspects of CEDAW is that it does not only address the state. The Convention also addresses the private sector, the field where the most serious violations of women's rights take place. Thus, the Convention aims for the restructuring of gender relations within the family, requiring the state to adopt positive measures to protect women against discrimination inflicted by private actors.
The Optional Protocol to CEDAW was adopted on October 6, 1999, and entered into force in 2000. By ratifying the Optional Protocol, a state recognises the competence of the Committee on the Elimination of Discrimination against Women, the body that monitors states parties' compliance with the Convention, to receive and consider complaints from individuals or groups within its jurisdiction. The Protocol contains two procedures: first, a communication procedure allows individual women, or a group of women to submit claims of violations of rights protected by the Convention. Second, the Protocol creates an inquiry procedure, which allows the Committee to initiate inquires into grave and systematic violations of rights protected by the Convention. Currently, there are 109 state parties to the Optional Protocol.
The basis here is the principle of non-discrimination. It is worth mentioning that the principle of non-discrimination is mentioned in the Preamble of the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, which gives the Principle a high legal value.
3) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”), and its Optional Protocol
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the "Torture Convention" or CAT for short, was adopted by the General Assembly of the United Nations on December 10, 1984 (resolution 39/46), and entered into force in 1987. At present,164 states are parties to this Convention. The Torture Convention was the result of many years of work following the adoption of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Declaration”) by the General Assembly in 1975.  The adoption of CAT is an important and essential milestone in the fight of the international community and international law against such criminal acts.
Torture has been used and relied on since the times of the Greeks and the Romans. Although the turn of the 20th century was full of promises with technological advancements and assumed political progress, optimistic visions were soon darkened by the continued clouds of imperialism, and militaristic ideologies from all sides of the political spectrum - even western democracies. It took the world two world wars, specially the Second World War to motivate the international community to take action against torture and to protect human rights. Thirty years after the creation of the United Nations, the United Nations General Assembly took a historic step towards the eradication of torture when it adopted the non-binding Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Declaration was proclaimed as a "guideline for all States and other entities exercising effective power".
Before going into the details of the Convention, one should remember that the prohibition of torture is a Jus Cogens norm under international law. Jus Cogens are the body of peremptory norms or principles from which no derogation is permissible at any time. States just cannot "contract" out of these norms through treaties, practice etc. Some other examples of Jus Cogens norms include: the prohibition of Genocide, slavery, racial discrimination, use of force, crimes against humanity, and war crimes. Jus Cogens norms gives rise to the erga omnes obligations, that is the obligation of all states of the world to take action against the perpetrators of such crimes wherever it occurs. The place of the crime, the nationality of the perpetrator and the victim does not matter. This flows from the principle of universal jurisdiction - all national courts in the world can put perpetrators of such crimes to trial.
Article 1(1) of the Torture Convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Moreover, Article 4(1) of the convention declares that each state party to the Convention must ensure that all acts of torture in the territories under their jurisdiction are offences under their criminal law. This also applies for attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. When it comes to interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, the state parties should keep them under systematic reviews, with the aim of preventing cases of torture or any degrading or inhuman treatment from rising (Article 11). Another important aspect of the treaty is the principle that no person should be expelled, returned or extradited to another state where there are substantial grounds for believing that he/she would be in danger of being subjected to torture and degrading or inhumane treatment (the Principle of Non-Refoulment) (Article 3(1)).
Hence, besides from the negative obligation, the Torture Convention puts a positive obligation on the state to ensure torture and degrading or inhuman treatment does not occur in the territories under its jurisdiction.
The Convention also established the Committee Against Torture, as a body competent to control the implementation by the state parties of the obligations which it places on them (Article 17). The Optional Protocol to the Convention Against Torture adopted in 2002, and entered into force in 2006. The Optional Protocol establishes a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their freedom, in order to prevent torture and other inhuman, and degrading treatment. The Optional Protocol also established the Sub-Committee on Prevention of Torture. Currently, it has 88 state parties to it.
It is worth mentioning that both the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR) have provisions prohibiting torture and inhuman or degrading treatment. Article 5 of UDHR states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" and Article 7 of the ICCPR states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." Also, the Rome Statute, which created the International Criminal Court, mentions torture in the crimes over which the Court has jurisdiction (Genocide, crimes against humanity, war crimes, and the crime of aggression). Torture is mentioned under Crimes Against Humanity (Article 7(1)(f)), and under War Crimes (Article 8(2(a)(ii)). The Rome Statute also provides a definition of torture, which is
defined as the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanction." Moreover, in its definition of Genocide, the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the General Assembly of the United Nations in 1948, and entered into force in 1951, mentions "Causing serious bodily or mental harm to members of the group" (Article II(b))).
4) The Convention on the Rights of Persons with Disabilities, and its Optional Protocol
The Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol was adopted in December 2006. The Convention had the highest number of signatures in history to a United Nations Convention on its opening day. It was the first comprehensive human rights treaty of the 21st Century. The Convention entered into force in 2008 and currently 177 states are parties to it.
Over 600 million people around the world, which makes around 10 per cent of the world's overall population, have some form of disability. Persons with disabilities have long suffered discriminatory and degrading treatment in the hands of society; sometimes, they were not even considered complete human beings. They were also victims of genocide, eugenics, and discrimination. Even when they were not subject to these forms of gross human rights violations, they have suffered forced institutionalisation, and denial of legal capacities, such as the right to bear and raise children, to marry, inherit, and own property. They were also segregated when it came to education, housing, and employment. Persons with disabilities are among the people considered to be in the vulnerable group. Although persons with disabilities are entitled to all the human rights and fundamental freedoms protected by the International Bill of Human Rights, the term disability is not mentioned in the ICCPR, ICESCR, CEDAW, CAT and/or CERD. UDHR mentions disability only once, in the framework of receiving social security. CRC is the only "core" human rights convention that includes specific provisions for persons with disabilities (in its Articles 2 and 23). The lack of attention to disabled persons is due to the "invisibility" of disabled persons, and to centuries of marginalisation. This issue was often seen as a medical, not a social one.
During the 1970s, movement was made in the formulation of international disability-relevant standards, but these movements did not manifest in legally binding measures. Among the early initiatives were the adoption of the Deceleration on the Rights of Mentally Disabled Persons, and the Declaration on the Rights of Disabled Persons. In the 1980s, more progress was made by the designation of the decade as the Decade of Disabled Persons from 1981-1991. In 1993, the General Assembly of the United Nations adopted the United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities as a template for policy-making and international cooperation. In 2001, the General Assembly established an Ad Hoc Committee to consider the possibility of a disability-specific human rights treaty. The work of the Committee culminated in the adoption of the CRPD.
The main purpose or goal of the CRPD, as mentioned in Article 1 of the convention, is to "to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity". Article 1 perceives that disability includes, but is not limited to "long-term physical, mental, intellectual or sensory impairments." The Convention affirms the social model of disability by describing it as a condition that arises from "interaction with various barriers [that] may hinder their full and effective participation in society on an equal basis with others" instead of inherent limitations.
Article 2 of the Convention does not give a direct definition of "disability". Instead it reaffirms the social construct of disability mentioned in Article 1, and also, the Preamble of the Convention. Thus Article 2 defines discrimination on the basis of disability as "distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation." Article 3 categorises the general principles of the Convention, which are respect for human dignity, autonomy, independence, respect for difference, acceptance of disability as human diversity, non-discrimination, equal opportunity, complete and meaningful participation, accessibility, sexual equality, respect for children's rights and support of accessibility.
Furthermore, Article 4 mentions the obligations of the state parties to the Convention, which are to undertake measures to ensure the promotion and full realisation of all human rights and fundamental freedoms articulated in the Convention, and to prohibit any form of discrimination in their attainment. Also under Article 4, states party to the Convention must undertake measures for the progressive realisation of the economic, social, and cultural rights to the maximum extent of their existing resources. Article 5 requires states parties to the CRPD to recognise that all persons are equal before the law, and are entitled to the equal protection and equal benefit of the law. They are also required to prohibit discrimination on the basis of disability. Thereafter, the Articles of the Convention deal with issues such as the rights of women and children with disabilities, the attitudinal causes of disability based discrimination, by requiring the states to raise public awareness. The Convention also recognises that partnerships with other states, relevant international and regional organisations, and civil society, support implementation of the obligations of the state parties at the national level (Article 32). The monitoring and the implementation measures of the Convention include the collection of disability-related data to counter the traditional absence and lack of comparative information that hampers the realisation of rights.
Article 34 of the Convention establishes the Committee with the function of monitoring state compliance with the Convention. The Optional Protocol to CRPD was adopted in 2006, and entered into force in 2008. The Optional Protocol recognises the competence of the Committee to receive individual complaints. Currently, there are 92 state parties to the Optional Protocol.
The Convention tracks the contemporary United Nations Human Rights conventions, specially, the Convention on the Rights of the Child, in two significant ways. First, it chases the objective of the human right to development, by combining civil and political rights with economic, social and cultural rights. Second, it sums up human rights obligations for a targeted population, in this case, persons with disabilities - a vulnerable group.  Hence, since the Convention is a comprehensive human rights treaty, it encompasses in it human rights and fundamental freedoms that all human beings are entitled to, such as: right to life, freedom from torture, respect for home and family, personal integrity, etc.
Hence, the medical model of disability has been replaced by a human rights model. Unlike the medical model, the human rights model focuses and emphasises the inherent dignity of human beings, while relegates specific limitations to a secondary importance. It centres on the individual in decision-making, which was a goal of disability-rights activists, and identifies problems in society's lack of responsiveness when it comes to issues related to disability, rather than in each person's difference.
 Felipe Gomez Isa and Koen de Feyter (eds), International Human rights Law in a Global Context (Universidad de Deusto: 2009), p.354
 C Flinterman and J Gutter, "The United Nations and Human Rights: Achievements and Challenges," p.6
 Theodor Meron, "The Meaning and Reach of the International Convention on the Elimination of all forms of Racial Discrimination," The American Journal of International Law, Vol.79, No.2 (Apr., 1985), pp.283-318.
 C Flinterman and J Gutter p.6
 "Human Rights: a Compilation of International Instruments" Volume 1. 2002, OHCHR. Geneva. p. 121
 Ibid 3, at 122
 International Human rights law in a global context, 354
 Human Rights Compilation, p.125
 Ibid, p.121
 Ibid, p. 371
 Equality and Non-Discrimination Principles in International Human Rights Law, University of Oslo, September 2018
 8 I.C.J Report, 1970, pp. 3, 32
 Jessica Lawrence, Human Rights, Peace Operations Training Institute (2012), p.167
 International Human rights law in a global context,
 Matthew Lippman, "The Development and Drafting of the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment" Boston College International and Comparative Law Review, Vol 17, Issue 2 (1994), p.301
 International Human rights law in a global context, p.417
 CEDAW in brief (2013) p. 7. Also see
 International Human rights law in a global context, p. 444-445
 Jessica Lawrence, Human Rights,
 Jessica Lawrence, Human Rights, p. 201-202
 International Human rights law in a global context, p.497-8-9
 Ibid, p.500
 Ibid, p.501
 Ibid, p.502
 Ibid, p.503
 Ibid, p.505
 Ibid, p.504
 International Human rights law in a global context, 499-500
 Ibid, p.504
 Jessica Lawrence, Human Rights, p.201