AFTER THE TWO DEADLIEST wars of human history, the international community came together to form the United Nations (UN) and drafted several instruments including the Universal Declaration of Human Rights (UDHR) in 1948 to preserve world peace and protect fundamental freedoms. Eighteen years later in 1966 came the two covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which along with UDHR form the International Bill of Human Rights setting out a comprehensive vision of human dignity and the legally binding obligations of States to protect human rights. The UNDP’s Human Development Report 2000, which specially focused on Human Rights and Human Development, observed, “The rights perspective helps shift the priority to the most deprived and excluded, especially to deprivation because of discrimination”.
As the UN commemorates the 60th anniversary of the covenants in an era marked by conflict, declining multilateralism and open disregard for international law, it is a fitting time to reflect upon what these covenants have delivered to the people for whom they matter most.
What do these covenants mean to the States and their people?
The ICCPR and the ICESCR were adopted in 1966 and came into force in 1976 and today have 175 and 174 ratifications respectively. A State that signs the treaty must refrain from acts that go against the object and purpose of the treaty whereas ratification creates a legally binding obligation to take measures to incorporate the rights in domestic laws for their effective implementation of the instrument. The Indian constitution under article 51(c) and 253 underscores the commitment towards treaty obligations and its implementation through domestic laws. These covenants have have been referred to in several judgements and laws in India and other countries. But how does the UN ensure that these lofty ideals negotiated and concluded in Geneva are translated into tangible outcomes in countries far away where even the domestic systems struggle to bring forth change? A closer look into the system gives us ‘some positive answers’, if not all.
Treaty Bodies and State Reviews
The Supreme Court, along with the high courts act as the guardian of the Indian constitution. Likewise, the UN system devised the treaty bodies with the object of monitoring the implementation of the treaties and interpreting the text. They introduced a system called Country review where every State Party submits a report on the implementation of the covenant periodically (which might vary from 4 – 8 years for different treaty bodies) which the members of the Committee shall review. Although not an adversarial system like the domestic courts, it has a similar system for contesting information, but at a diplomatic level, using which the committee arrives at conclusions.
Governments usually submit a report that throws light only on their good laws and practices to protect their reputation at the international stage. That is why the Committee also receives submissions from the National Human Rights Institutions (NHRIs) and Non-Governmental Organisations (NGOs) which allow the members to get a complete picture of the state’s human rights record in relation to the covenant rights. After all these submissions, the state delegation travels to Geneva, once every reporting cycle, to sit with the Committee and directly answer the members’ questions for around 6 hours. This form of interaction is called constructive dialogue. This also includes informal closed briefing by NGOs and NHRIs.
For the ICCPR, the members might pose questions about prison conditions, rights of migrants, and freedom of expression, among others. For ICESCR, the questions could be around provision of adequate housing, protection of indigenous peoples, and guaranteeing health rights. After the constructive dialogue, the committee adopts Concluding Observations (CoBs) which includes recommendations of measures to be taken by the State Party. Those recommendations are of significant diplomatic value impacting the State’s reputation in the multilateral arena of international affairs. The Committees are made up of independent experts (judges, lawyers and academics) elected by States. India’s former Chief Justice P.N. Bhagwati once chaired the Human Rights Committee (CCPR).
What impact have these country reviews created?
From the grassroots, one might wonder what improvements and changes such recommendations could bring about in the lives of people whose stories are discussed in Palais des Nations. I would argue that it truly matters to some extent, to say the least. The Human Rights Committee (varies for other treaty bodies) has built a follow-up mechanism, which is truly remarkable and often not found in domestic judicial systems where judgements go unimplemented for decades without any mechanism for oversight. The Committee in its CoBs indicate that the State Party within a specific period must report back to the committee on certain paragraphs, which are considered as pressing issues in the country, such as freedom of expression and prison conditions.
The Committee sends reminders and invitations to the ambassadors for updates on the follow-up report before finally awarding grades for specific issues based on the efforts taken by the State Party to implement the Committee’s recommendation. The committee tracks the implementation through its follow-up grading, arranged as A, B, C, D and E referring to implementation largely satisfactory, partially satisfactory, not satisfactory, no cooperation and action contrary to recommendations, respectively. A close look at the data and the implementation map shows that the Committee’s recommendations have influenced the laws, policies and institutional measures by the States, although not always.
The conditions of detainees in Niger were improved by the government following the Committee’s recommendations. The adoption of a prison policy in that country for, among others, for improving the infrastructure of jails and allowing unannounced visits by the National Human Rights Institution and also drafting of a human rights defenders protection law can be traced to such recommendations. The Committee recently recognized Botswana’s efforts to adopt a National Action Plan to implement the Anti-Human Trafficking Act in line with the Committee’s CoBs. Liberia made significant efforts to improve the administration of justice following the Committee’s recommendations by increasing the number of courts, public defenders, and legal aid which reduced the backlog of court cases by approximately 80 per cent. After the review, Liberia also appointed a judicial ethics committee to safeguard the independence of the judiciary. The case management system for reducing backlog was implemented with the partnership of the UN Development Programme, highlighting the role of other UN entities to implement the committee’s decisions.
Armenia amended its law on domestic violence to protect women and opened investigations into alleged excessive use of force by state agents after the Committee’s CoBs. Similarly, Romania took several measures to prevent discrimination against Roma people, Morocco adopted new law to prevent torture and Thailand particularly developed an electronic monitoring system for finding alternatives to detention. States come to Geneva out of concern for their international reputation, and some out of genuine commitment to human rights, but what matters is that these recommendations are not always ignored. The dialogue model of these reviews enables a constructive exchange of ideas avoiding confrontational and adversarial approach. It encourages the States to engage with the system they run and pursue the recommendations for implementing them to the extent possible. Beyond the reviews, the UN also adopted measures to strengthen the States’ capacity to engage with the treaty bodies.
The Overlooked impact of the treaty jurisprudence:
Besides the review procedure, the treaty bodies also have an individual complaints procedure where any individual victim of a violation of a covenant right can approach the committee with their complaint after exhausting domestic remedies. But this is conditional on the ratification of the optional protocol which 116 and 31 States have done for ICCPR and ICESCR respectively. After declaring a communication admissible, the Committee examines the merits and adopts its Views, which are non-binding but their impact should not be underrated.
One of the remarkable cases by the Human Rights Committee that made a global impact is Toonen v Australia, where the committee, as early as 1994 held that Tasmania’s criminalization of consensual sex between men arbitrarily interfered with the right to privacy, and noted that ‘sex’ in the Covenant’s non-discrimination clauses includes sexual orientation. Australia immediately responded to this with a legal reform which effectively decriminalised homosexuality in Tasmania, but its impact went far beyond. The decision has been consistently cited elsewhere for decriminalization worldwide including South Africa, the European and Inter-American Court of Human Rights and even the Indian Supreme Court in Navtej Singh Johar, where it made 19 references to the case. The Human Rights Committee in Lovelace v. Canada and Aumeeruddy-Cziffra v. Mauritius found violations rooted in gender-biased laws that discriminated against minority/indigenous women and women with foreign spouses, respectively, both of which led to eventual domestic legal reforms.
In some cases, the mere pressure of a pending case before the Human Rights Committee has contributed to remedying the victims before the Committee could even take a decision. One stark example of this is Mónaco v. Argentina, where the international pressure created by the case on the Human Rights Committee, contributed, among other factors, to push domestic courts decide for safe return the of the child who disappeared and restore her identity. The Committee's interim measures and final views have even halted executions by States Parties. In Pratt & Morgan v. Jamaica, the international intervention successfully froze an imminent execution, forcing a domestic commutation to life imprisonment that ultimately allowed one of the victims to be released on parole. In the same vein, the Committee on ESCR in Ben Djazia and Bellili v. Spain has prompted the states to provide accommodation for victims forcefully evicted from their homes and eventually led to legislative reform in Spain through the Right to Housing Act. These results reinstate the ability of treaty bodies to push domestic legislative reforms and remedy victims that even domestic judiciaries often struggle to secure.
Interpretive guidance by the Committees to meet emerging challenges
The committees being quasi-judicial bodies have also invented a mechanism to provide interpretive guidance on the covenant rights to address the emerging threats in the changing world, making the covenants living instruments. In this regard, the Human Rights Committee through its General Comment on Right to Life clarified that environmental degradation and climate change constitute some of the most serious threats to enjoy the right to life. This reminded the states that their obligation to protect life should also be informed by international environmental law and protect it against harm by both public and private actors. This same GC also emphasized that the right to life continues to apply even in armed conflict, signalling the synergy with humanitarian law, which is more relevant than ever today. When we are entering an “Era of Global Water Bankruptcy”, the Committee on ESCR’s General Comment 15 recognized that the covenant mandating the right to an adequate standard of living includes the right to water and all the needs it should fulfill without discrimination.
India’s Case
India has not accepted any individual complaints procedure under the UN treaties, so no complaint against India can reach the Committees. India has also resisted scrutiny through country reviews, most recently before the Committee on the Elimination of Racial Discrimination, a review that came almost two decades late due to the delay caused by India. When the Committee noted serious concerns, the Indian government rebuked it, calling it a ‘politically motivated, highly malicious reference’. India has also not ratified important conventions including the Convention Against Torture and the Convention on Refugees. Moreover, these non-ratifications were concerns raised by the Human Rights Committee in its 2024 review of India.
Despite India’s non-acceptance of the individual communications procedure and disregard for the treaty system, there have been several Supreme Court judgements and laws in India that have been shaped by the treaties system. The Protection of Human Rights Act, 1993 explicitly spells out that human rights includes the rights enshrined in ICCPR and ICESCR. The Convention on Elimination of All forms of Discrimination Against Women (CEDAW) played an important role in the enactment of the POSH Act, 2013, which is also explicitly referenced in the law. Similarly, the POCSO Act, 2012 and the Juvenile Justice Act, 2015 have principles derived from the Convention on the Rights of the Child. The Convention of the Rights of Persons with Disabilities was given effect by the Rights of Persons with Disabilities Act, 2016.
The Supreme Court in DK Basu, a landmark ruling in Indian criminal justice jurisprudence endorses ICCPR’s principle on effective remedies and compensation to victims of unlawful arrest or detention. In NALSA, the court interestingly refers to several treaty bodies such as the Committee on Torture, CEDAW and ICESCR. As noted above, Navtej Singh Johar relies on the Human Rights Committee’s jurisprudence in Toonen. In Daily Rated Casual Labour, the Supreme Court relied on the right to fair wages from ICESCR to protect workers’ rights. The Apex court has relied on ICESCR in several other instances to protect various rights such as the right to food, education, health, etc. Besides, various high courts have frequently relied on ICESCR including Ajay Maken, a landmark case on housing rights by the Delhi High Court. This way, these covenants and other treaties have continued to shape Indian law and jurisprudence despite the larger resistance by the government. Such is the potential of the treaty bodies system in India and across the world.
Is this the complete picture?
This way, the treaty bodies, through their periodic country reviews and individual complaints procedure have pushed states to change laws, practices and even saved lives and remedied victims. Through their evolutive interpretation of the two covenants, the committees are trying to meet the needs of the changing world and guiding states and domestic judiciaries to progressively protect human rights. Nonetheless, this may not be the comprehensive and critical image of the effectiveness of the UN system or the treaty bodies in particular. There are countless states which delay their reporting (including India), do not accept the individual complaints procedure or disregard the views of the Committee. The system itself faces an internal crisis: delays, growing backlogs and the UN liquidity crisis are increasingly affecting its functioning.
Does the fault, then, lie with the system or with the States who wilfully weaken it by cutting the funds and disregarding its findings? The UN system is not backed by force but by goodwill of the states for a better world and thus, cooperation and constructive engagement is the only way forward. It definitely does not have the power to stop wars of aggression or mass atrocities, but it can push States to change laws and policies and save lives, only if they are willing to listen, a promise they made to the UN Charter and to the Covenants when they ratified them. If that promise is kept, it can do a great deal for the people who need it the most. Sixty years on, that promise remains as relevant as ever.