There are several UN bodies that have been created by treaties rather than the UN Charter. These treaty-based bodies monitor States Parties’ compliance with the treaties through annual country reporting. The bodies provide other avenues of redress in addition to the UNHRC Universal Periodic Review, Complaint Procedure and Special Procedures. There are currently ten human rights treaty bodies that monitor implementation of the core international human rights treaties and most may consider complaints or communications from individuals.[1] It is important to note that treaty monitoring bodies have no authority to make law and that they issue non-binding recommendations to States Parties. Much of their influence stems from the fact that their recommendations often sound as if they had the power of law, and attempts are frequently made to try and convince States that these bodies have more authority than they technically possess. Active involvement in country review sessions is thus critical to fortify governments against such abusive attempts.
Subject to meeting certain admissibility criteria, anyone may bring a communication alleging a violation of treaty rights to the body of “independent experts” set up by optional protocols to a given treaty. These committee members are elected by States Parties to the treaty. They are tasked with monitoring implementation of the rights set forth in the treaties and with deciding on communications brought against those States. While there are some variations between the mechanisms, their design and operation are very similar.
Crucially, the views and recommendations of the treaty monitoring bodies are not binding and the monitoring bodies do not have judicial authority, despite the often misleading claims of some groups that would like to confer more power on the committees than they actually possess. For example, in the L.C. v Peru example (below), the CEDAW committee (correctly) introduced its findings by stating: “The Committee therefore makes the following recommendations to the State party…” By contrast, the pro-abortion lobby “Center for Reproductive Rights” misleadingly reported: “In a groundbreaking decision issued in L.C. v. Peru … the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) ruled that Peru must amend its law… .”
As well as lodging complaints with the Committee, NGOs can participate in the Committee activities in a variety of ways. For example, they can provide country-specific information on States Parties that are before the Committee, attend the pre-sessional working group and Committee sessions, provide written and oral statements to the Committee and can organize side events at the Committee sessions.[2]
Information on bringing a complaint to one of the treaty monitoring bodies can be found here. Individual complaints can be sent to: Petitions Team, Office of the High Commissioner for Human Rights, United Nations Office at Geneva 1211 Geneva 10, Switzerland or by Fax to + 41 22 9179022 (particularly for urgent matters) or by E-mail to: petitions@ohchr.org.
Human Rights Committee
The Human Rights Committee (HRC) monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR). All parties that have signed and ratified the treaty are obliged to submit regular reports to the Committee on how the rights are being implemented – usually a report every four years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “Concluding Observations.” In addition to the reporting procedure, article 41 of the ICCPR provides for the Committee to consider inter-State complaints. The Committee meets in Geneva or New York and normally holds three sessions per year. The Committee also publishes its interpretation of the content of human rights provisions, known as “General Comments,” on thematic issues or its methods of work.
Like many treaty monitoring bodies, the Human Rights Committee regularly criticizes Member States for restricting access to abortion. For example, during its Concluding Observations the Committee has expressed the following comments with regard to Honduras and Kenya:
“The Committee expresses its concern at the unduly restrictive legislation on abortion, particularly in cases where the life of the mother is endangered (article 6 of the Covenant). The State party should amend its legislation so as to help women avoid unwanted pregnancies and ensure that women need not resort to clandestine abortions, which could endanger their lives. The State party should also amend its legislation on abortion in order to bring it into line with the Covenant.”[3]
“The Committee expresses concern about the high maternal mortality rate prevalent in the country, caused, inter alia, by a high number of unsafe or illegal abortions (article 6 of the Covenant). The State party should adopt measures to improve access to family planning services for all women. It should review its abortion laws, with a view to bringing them into conformity with the Covenant.”[4]
Although the Human Rights Committee has repeatedly expressed views that support abortion, on some issues, such as religious freedom, the Committee has issued helpful statements. For example, in one of its General Comments the Committee stated:
“The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant.”[5]
The First Optional Protocol to the ICCPR gives the Committee competence to examine individual complaints with regard to alleged violations of the ICCPR by States Parties to the Protocol. If the Committee believes a violation of the treaty has occurred, the State Party is requested to provide an effective remedy for the violation, such as the payment of compensation or the amendment of legislation. The Committee’s Special Rapporteur on Follow-up to Views then communicates with the parties with a view to achieving a satisfactory resolution to the case in the light of the Committee’s views. The Centre for Civil and Political Rights provides much information on the Human Rights Committee, including a database of country reports and individual communications.
Listed below are a number of examples of Human Rights Committee communications. The Committee’s recommendations are not binding as the Committee does not have judicial powers. However, the views of the Committee may be influential in shaping legislation in Member States and informing debate at the UN level.
Toonen v. Australia (1994): In 1991, Mr. Toonen, a homosexual activist and leading member of the Tasmanian Gay Law Reform Group, challenged two provisions of the Tasmanian Criminal Code that criminalize various forms of sexual contact between consenting male homosexual adults. The HRC decided that the provisions in question violated the ICCPR and more specifically the author’s right to privacy. The HRC urged the State to repeal them by emphasizing that concerns about their abolition having to do with public health and rooted on moral grounds were not compelling.
Joslin v. New Zealand (2002): Two lesbian couples requested marriage licenses but their requests were refused by the Registrar-General since New Zealand’s Marriage Act of 1955 confined marriage between a man and a woman. The HRC decided that by refusing to recognize same-sex “marriage,” New Zealand was not in violation of the ICCPR. A State is only obligated to recognize as marriage the union between a man and a woman, but the Committee noted that this did not prevent any State from adopting a larger definition of marriage by accepting to recognize same-sex relationships as “marriages.”
Young v. Australia (2003): Mr. Young was in a same-sex relationship and after the death of his partner, a war veteran, Mr. Young applied for a pension as his partner’s dependant. His application was denied because, according to the Veteran’s Entitlement Act, a “dependant” is the partner who is either legally married to the veteran, or in the case of a marriage-like relationship, the person of the opposite sex living with the veteran. The HRC decided that Australia had violated the ICCPR by discriminating against homosexual couples and by not ensuring their equal protection before the law. The Committee stated that Mr. Young was entitled to a reconsideration of his application without discrimination based on his sex or sexual orientation and that the State should take measures to avoid similar violations of the ICCPR in the future.
K.L. v. Peru (2005): 17-year-old K.L. discovered she was pregnant with a baby that had anencephaly. She was advised to have the baby aborted but failed to get the authorization from the hospital director, who claimed that an abortion would violate article 120 of the Peruvian Penal Code. K.L. gave birth to an anencephalic baby that died after four days. The HRC decided that the refusal to proceed with the abortion was in violation of the ICCPR by amounting to cruel and inhuman treatment, to a violation of her right to life, a violation of her right to privacy, and a violation of the special protection she was entitled to as a minor.
L.M.R. v. Argentina (2011)[6]: In 2006 L.M.R., a mentally impaired woman, attempted to have an abortion after it was suspected that her uncle had raped her. The hospital refused to perform an abortion and court proceedings were issued over whether article 86, paragraph 2 of the Argentinean Criminal Code, which permits abortion in the case of a pregnancy being the result of rape or sexual assault of a mentally deficient or insane woman, should be applied. Although the Supreme Court ruled that the abortion could be performed, no health center or hospital agreed to perform the abortion procedure and L.M.R. instead arranged an illegal abortion. The Committee decided that Argentina had violated L.M.R.’s privacy rights under Article 17 of the ICCPR and subjected her to “cruel, inhuman or degrading treatment or punishment” under Article 7.
Committee on Economic, Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights (CESCR) monitors the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR). All parties that have signed and ratified the treaty are obliged to submit regular reports to the committee on how the rights are being implemented – usually a report every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.” The Committee also publishes its interpretation of the provisions of the ICESCR, known as General Comments.
In 2008, the General Assembly adopted an Optional Protocol to ICESCR that gives the Committee competence to receive and consider individual complaints. The Optional Protocol has been open for signature since 2009. The Committee meets in Geneva and normally holds two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group.
Committee on the Elimination of Discrimination against Women
Established in 1982, the Committee on the Elimination of Discrimination against Women (CEDAW committee) monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women. All parties that have signed and ratified the treaty are obliged to submit regular reports to the Committee on how the rights are being implemented – usually a report every four years. The CEDAW committee is composed of 23 experts on women’s issues from around the world and meets three times per year. As well as the country reports, CEDAW also publishes general recommendations based on its interpretation of the Convention. Although the Convention does not at all mention abortion, the CEDAW committee subject Article 12 of the Convention (eliminating discrimination against women in the field of health care) to temerarious interpretations in order to promote abortion globally. In fact, one report published in 2010 documented that the CEDAW committee had pressured 83 Member States into liberalizing abortion laws in the fifteen-year period from 1995 to 2010.[7]
The CEDAW committee is undoubtedly the most notorious amongst of all the treaty-monitoring bodies for deliberately misiterpreting the treaty it is responsible for, in particular with a view to fabricating, in incremental steps, a “right to abortion”. Recent examples of its Concluding Observations include the following recommendations to Chile and Nigeria:
“The Committee … calls upon the State party to assess the impact of its abortion law on the maternal mortality rate and to give consideration to its reform or modification. It also calls upon the State party to implement awareness-raising campaigns to enhance women’s knowledge of reproductive health issues and recommends that sex education be widely promoted and targeted at adolescent girls and boys…[8]
…the Committee deeply regrets that all the recent parliamentary initiatives aimed at decriminalizing abortion have failed in the State party, including those where the health or life of the mother are at risk, in cases of serious foetus malformation or rape. While welcoming the statement made by the delegation that the right to life of the mother prevails where her health or life is at risk, the Committee reiterates the concern expressed in its previous concluding observations that abortion remains a criminal offence in all circumstances…”[9]
Despite being unmentioned in a single international treaty, and in particular CEDAW, the committee also takes the opportunity during its General Recommendations to promote abortion as a human right. It has also attacked conscientious objection for healthcare providers, for example:
“Measures to eliminate discrimination against women are considered to be inappropriate if a health-care system lacks services to prevent, detect and treat illnesses specific to women. It is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.”[10]
In 1999 an Optional Protocol to the Convention was adopted which gives CEDAW competence to receive and consider individual complaints as well as initiate inquiries into situations of grave or systematic violations of women’s rights. However, as with other monitoring bodies, the views of the CEDAW committee are not binding, as the committee does not have judicial powers.
One case where the CEDAW has misused its position to call for a decriminalzation of abortion was L.C. v. Peru (2011)[11].
Other committees
Other treaty-based committees may be relevant as they may also touch on issues such as abortion, “hate speech” laws and parental rights. These include the Committee on the Rights of Persons with Disabilities (monitoring the Convention on the Rights of Persons with Disabilities, CRPD), the Committee on the Elimination of Racial Discrimination (monitoring the Committee on the Elimination of Racial Discrimination) and the Committee on the Rights of the Child (monitoring the Convention on the Rights of the Child, CRC).
The Committee on the Rights of Persons with Disabilities recognizes that laws that afford children less protection against abortion when they are expected to suffer from a malformation or illness are, in fact, a discrimination of persons with disabilities. But the remedy it proposes is not to step up the protection of children with (suspected) disabilities; instead, it wants States to provide less protection than they currently do to all other children! In its observations addressed to the Spanish Government, the Committee wrote the following:
“The Committee takes note of Act 2/2010 of 3 March 2010 on sexual and reproductive health, which decriminalizes voluntary termination of pregnancy, allows pregnancy to be terminated up to 14 weeks and includes two specific cases in which the time limits for abortion are extended if the foetus has a disability: until 22 weeks of gestation, provided there is “a risk of serious anomalies in the foetus”, and beyond week 22 when, inter alia, “an extremely serious and incurable illness is detected in the foetus”. The Committee also notes the explanations provided by the State party for maintaining this distinction.
The Committee recommends that the State party abolish the distinction made in Act 2/2010 in the period allowed under law within which a pregnancy can be terminated based solely on disability.”[12]
Similarly astonishing are the opinions aired by the Committee on the Rights of the Child, which seeks to frame abortion and medical contraception as part of “reproductive health rights”, encouraging Member States to incorporate information on these “rights” as part of the school curriculum”[13].
The most clamorous case in which the Committee on the Rights of the Child brazenly disregarded both the limits of its mandate and the actual content of the Convention it is supposed to monitor was when in 2014 it attempted to use the child abuse crisis in the Catholic Church in order to lecture the Holy See on the measures it should have taken in order to implement the Convention. The Committee’s “Concluding Observations”[14] are truly grotesque in that they seek to hold the Holy See responsible for child abuse cases that had been taking place in other countries – in other words, in order to “implement” the Convention, the Holy see would have had to exercise full police and judicial powers in countries such as, say, Ireland. (One is just tempted to wonder how the Comittee, not to mention the governments of those countries, would react if the Holy See really pretended to such powers and competences…). In addition, the UN body also requested the Catholic Church to change its teaching on matters such as abortion, sodomy, which are clearly outside the scope of the CRC, thereby erecting itself as some kind of a supreme moral instance with infallible magisterium. The Holy See’s response on the Committee’s ill-founded and truly abusive report is a landmark document that has a broader significance for the role and standing not only of the CRC Committee, but of all UN Treaty Monitoring Bodies.
[1] These are: the Human Rights Committee (CCPR); the Committee on Economic, Social and Cultural Rights (CESCR); the Committee on the Elimination of Racial Discrimination (CERD); the Committee on the Elimination of Discrimination against Women (CEDAW); the Committee against Torture (CAT); the Subcommittee on Prevention of Torture (SPT); the Committee on the Rights of the Child (CRC); the Committee on Migrant Workers (CMW); the Committee on the Rights of Persons with Disabilities (CRPD); the Committee on Enforced Disappearances (CED).
[2] For the HRC, see Guidelines for Non-Governmental Organizations, Human Rights Committee. For the CESCR, see here. For CEDAW, see here .
[3] Concluding observations, Honduras, 2006, ¶ 8.
[4] Concluding observations, Kenya, 2005, ¶ 14.
[5] General Comment No. 22, the right to freedom of thought, conscience and religion (Art. 18), ¶ 1.
[6] L.M.R. v. Argentina, U.N. Doc. CCPR/C/101/D/1608/2007.
[7] See CEDAW Committee Rulings Pressuring 83 Party Nations to Legalize Abortion 1995 – 2010, Compilation and Analysis by Thomas W. Jacobson, Representative to the United Nations, Focus on the Family, 4 June 2010: http://www.c-fam.org/docLib/20101022_CEDAWAbortionRulings95-2010.pdf; Does CEDAW Promote Abortion? Briefing for Senate Judiciary Committee, Subcommittee on Human Rights and the Law, Submitted by Susan Yoshihara, Ph.D., Vice President and Director of Research, Catholic Family & Human Rights Institute, New York, November 18, 2010: http://www.c-fam.org/docLib/20101124_CEDAW_testimony_CFAM.pdf and General Recommendation No. 24 (20th session, 1999), which states that: “When possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.”
[8] Concluding Observations, Nigeria, 2008, ¶ 337.
[9] Concluding Observations, Chile, 2012, ¶ 34.
[10] General Recommendation No. 24 Women and Health (Article 12) (Twentieth session, 1999), ¶ 11.
[11] U.N. Doc. CEDAW/C/50/D/22/2009. A radical pro-abortion advocacy group brought a complaint on behalf of L.C., a girl who, after having been sexually abused became pregnant at the age of 13. After attempting suicide, she was hospitalized and the doctors discovered she was in need of emergency surgery. The surgical operation was postponed because of the risk that it posed on her unborn child. L.C. then had a miscarriage and the doctors performed the operation. However, L.C. became paralyzed from the neck down and regained only partial movement in her hands. CEDAW held that Peru had violated a number of articles of the Convention and recommended that Peru provide reparations to L.C. and “review its laws with a view to establish a mechanism for effective access to therapeutic abortion” and “review its legislation with a view to decriminalizing abortion when the pregnancy results from rape or sexual abuse review its abortion laws.” Of course, it is within the nature of a “recommendation” that it needs to have no basis in the law; this, after all, is one of the reasons why it cannot be considered to be legally binding. In substance, CEDAW’s recommendation to Peru is misguided because (1) it has no basis in CEDAW, which does not foresee any obligation for States to legalize abortion; (2) abortion is not “therapeutic” (certainly not in casu, where it was no causal link was established between L.C’s not having had an abortion and her subsequent paralysis; and (3) the Committee failed to take into account the right to life of the unborn child, which is sufficient reason to prohibit abortion even under circumstances such as in the case of L.C.
[12] Committee on the Rights of Persons with Disabilities, Spain, Concluding Observations (2011), ¶ 17 & 18.
[13] Committee on the Rights of the Child, Trinidad and Tobago, Concluding Observations (2006), ¶ 54(c).
[14] Concluding Observations on the Second Periodic Report of the Holy See on the Convention on the Rights of the Child, CRC/C/VAT/CO/2, 31 January 2014
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