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Faculty of Law Master Thesis Faculty of Law Master Thesis The World Court of Human Rights as a long missing solution for the flaws tainting the functioning of the United Nations Human Rights Treaty Bodies by Aiste Izmailovaite Supervisor Prof. Yvonne Donders Table of Contents INTRODUCTION .............................................................................................. 4 CHAPTER 1: HUMAN RIGHTS PROTECTION PROVIDED BY THE UNITED NATIONS HUMAN RIGHTS TREATY BODIES ........ 7 1.1 FUNCTION, STRUCTURE AND COMPOSITION ..................................... 7 1.1.1 State Reports ............................................................................................................. 8 1.1.2 Individual Communications .............................................................................. 10 1.1.2.1 Procedural characteristics of the individual communications mechanism .......................................................................................................................................................... 11 1.1.2.2 Interaction between State Parties and the treaty bodies ................................. 17 1.1.3 General Comments .............................................................................................. 20 Conclusion .................................................................................................................20 CHAPTER 2: THE WORLD COURT OF HUMAN RIGHTS – ORIGINS, STRUCTURE AND CHARACTERISTICS ........................ 21 2.1 HISTORICAL BACKGROUND ......................................................................21 2.2 THE TWO PARALLEL WCHR DRAFT STATUTES ................................23 2.3 THE SUBSTANTIVE PROVISIONS OF THE TWO DRAFT STATUTES AND THEIR KEY DIFFERENCES ..............................................25 2.3.1 Composition and Selection of the Judges ..................................................... 25 2.3.2 Court’s Jurisdiction ............................................................................................. 28 2.3.3 Admissibility Criteria ......................................................................................... 33 Conclusion .................................................................................................................34 CHAPTER 3 – FLAWS TAINTING THE UNITED NATIONS TREATY BODIES’ INDIVIDUAL COMMUNICATIONS PROCEDURE AND FORESEEABLE CHALLENGES RELATING TO THE WORLD COURT OF HUMAN RIGHTS ............................... 36 3.1 ISSUES PERTAINING TO INDIVIDUAL COMMUNICATIONS PROCEDURE ...........................................................................................................36 3.2 FORESEEABLE CHALLENGES RELATING TO THE WORLD COURT OF HUMAN RIGHTS .............................................................................39 Conclusion .................................................................................................................42 CHAPTER 4: IS THE WORLD COURT OF HUMAN RIGHTS A NECESSARY AND WELL-SUITED ADDITION TO THE TREATY BODIES? ........................................................................................................... 43 4.1 THE UNIFIED STANDING TREATY BODY .............................................43 4.2 OTHER REFORM PROPOSALS ...................................................................46 4.3 INTRODUCING THE WORLD COURT OF HUMAN RIGHTS AS A VALUABLE ADDITION TO THE WORK OF THE TREATY BODIES .....48 4.3.1 Multiple ways in which the World Court of Human Rights would fill in Individual Communications Procedure’s gaps ...................................................... 49 Conclusion .................................................................................................................54 FINAL CONCLUSION .................................................................................. 55 BIBLIOGRAPHY ........................................................................................... 57 2 Abbreviations CAT Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment / Committee against Torture CEDAW Convention on the Elimination of All Forms of Discrimination against Women / Committee on the Elimination of Discrimination against Women CERD Convention on the Elimination of All Forms of Racial Discrimination / Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CPMW Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families / Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families CRC Convention on the Rights of the Child / Committee on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities / Committee on the Rights of Persons with Disabilities ECHR European Convention on Human Rights ECtHR European Court of Human Rights HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice NGO Non-governmental organisation OHCHR Office of the High Commissioner for Human Rights UDHR Universal Declaration of Human Rights UN United Nations WSA World Service Authority 3 INTRODUCTION ‘Every noble work is at first impossible.’ (Thomas Carlyle) International human rights law is one of the most striking achievements in the world’s history. Global society witnessed the creation of such important permanent legal institutions like the International Court of Justice (ICJ), the International Criminal Court (ICC) and the three regional human rights courts. Moreover, the United Nations (UN) added an extra dimension to the human rights law implementation and enforcement through the introduction of the so-called UN human rights treaty monitoring system. The treaty monitoring mechanism is vested in the various treaty bodies/committees. Each human rights treaty has its individual committee. Such committees are tasked with the review of the State Parties’ reports, the examination of individual communications/claims and the presentation of General Comments. The human rights treaty body mechanism in essence is a successful and widely accepted system. With the time passing, more and more states are ratifying various human rights treaties. Some of the treaties are several ratifications away from universal acceptance.1 Countries in general are optimistic about treaty monitoring system because it provides support and guidance without shackling them with binding decisions.2 However, every successful achievement bears certain level of complications and flaws. The treaty body mechanism has fallen victim to its own prosperity. The committees are facing various impediments, for example, massive backlog of pending communications and state reports, lack of independent experts, and lack of financial and human resources. All these deficiencies have gradually built up, thus hampering the 1 For example, the Convention on the Rights of the Child has 195 State Parties; the International Covenant on Civil and Political Rights has 168 State Parties; the Covenant on Economic, Social and Cultural Rights has 164 State Parties, as published in the United Nations Human Rights Office of the High Commissioner for Human Rights, Status of Ratification: Interactive Dashboard’ (last updated 22 May, 2015), page accessed through: < http://indicators.ohchr.org > (page last accessed on May 29, 2015). 2 This could be affirmed by astonishing numbers of State Parties to various UN human rights treaties and their Optional Protocols. For example, there are 115 State Parties to the ICCPR Optional Protocol, 106 State Parties to the CEDAW Optional Protocol. Membership data is published in the United Nations Human Rights Office of the High Commissioner for Human Rights, ‘Status of Ratification: Interactive Dashboard’, page accessed through: < http://indicators.ohchr.org/ > (page last accessed on 17 July, 2015). 4 effectiveness of the committees’ work. However, it is not the committees or State Parties that suffer the most, but human rights beneficiaries – ordinary human beings. Individual claimants meet confusing compartmentalized communications systems, lengthy proceedings, as well as lack of states commitment to abide by committees’ non-binding decisions. It is devastating because treaty bodies are the only international human rights fora accessible on a global level. This is the case due to absence of a regional human rights court in Asia.3 Five years ago, a group of renowned human rights scholars revived the idea of a World Court of Human Rights (WCHR), which in late 40s was passionately advocated by Australia. In 2014 the World Service Authority initiated a parallel WCHR project. The key idea behind these proposals is to establish a permanent human rights adjudicator, which would provide internationally accessible and legally binding human rights remedy for the global community. The idea of the WCHR has certainly stirred up the debate between various human rights scholars, judges and politicians. Some say it is a long-needed modernization, while others call this idea utopian and politically challenging.4 The creation of the WCHR should not be seen as a miracle happening in one day. As the old saying goes, ‘Rome was not built in a day’; the same goes to the development of international human rights legal framework. However, this thesis argues that the WCHR could be an additional human rights protection tool next to the treaty bodies’ apparatus5, especially because treaty bodies need to concentrate
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