Monitoring Mechanisms

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Miia Halme-Tuomisaari
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Monitoring mechanisms are a set of institutions and practices that in the fields of international human rights and humanitarian law address either already committed wrongdoing or aim to prevent future wrongdoing. The ideas behind monitoring mechanisms borrow from criminal law, and have similar aims to realize reconciliation, restitution, reparations, and even deterrence. More broadly, monitoring mechanisms can be seen as aiming to end what is known as “the culture of impunity” towards grave human rights violations.

Monitoring mechanisms can have both states and individuals as their parties, and they can be either permanent or temporary in nature. In the United Nations (UN) context, monitoring mechanisms include expert committees and councils formed of states. An example of expert committees is offered by UN human rights treaty bodies, which monitor how states comply with the obligations that they have undertaken by becoming parties to international human rights covenants (Halme-Tuomisaari 2013). In the absence of an international human rights court operating under the UN with universal jurisdiction, treaty bodies are also the UN’s most authoritative human rights monitoring mechanisms. To date, there are ten UN treaty bodies, including the UN Human Rights Committee founded in 1976, which monitors how states comply with the International Covenant on Civil and Political Rights, and the Committee on Economic, Social and Cultural Rights, founded in 1985, which monitors state compliance with the International Covenant on Economic Social and Cultural Rights.

The treaty bodies are composed of 15–20 selected nationals of state parties to a given covenant and are not the same as courts. In their tasks, members act (or are supposed to act) as autonomous experts representing the viewpoint of a particular covenant and human rights, not the national interests of their host states. UN committees convene regularly, today most often in the Geneva offices of the UN Office for the High Commissioner of Human Rights. Sessions are also sometimes arranged at the UN headquarters in New York. These sessions include elements called “constructive dialogue” with state parties, referring to a formal exchange between the committee and state representatives, as well as informal sessions between committee members and non-governmental organizations (NGOs). Some committees also process individual petitions and issue documents known as “general comments”: these lengthy documents elaborate on the content of individual covenant paragraphs in light of committee case law. The most important element of treaty bodies is their cyclical nature: as is stipulated in their covenant-based mandates, treaty body hearings are intended to be a recurring and repetitive, instead of an exceptional and unique practice, which jointly form an ongoing rights dialogue, ideally leading towards a gradual and permanent improvement in state and non-state human rights conduct, thus also leading to world improvement.

The Universal Periodic Review (UPR) is another UN monitoring mechanism that operates with a similar repetitive logic. It is a monitoring practice organized by the UN Human Rights Council, an international body composed of the member states of the UN. The UPR was launched in 2006 as the former UN Human Rights Commission was transformed into the current Council, accompanied by the hope that the new body would be rid of its predecessor’s adversarial and politicized nature. The operational logic of the UPR is straightforward: each state takes turns in presenting the Council with its report in a highly formalized and organized “ritual” (Charlesworth and Larking 2014; Cowan and Billaud 2017). In its first decade, the UPR has been praised for its universal participation and high visibility, making it the preferred monitoring mechanism for the lobbying of many NGOs. Yet recent developments have posed challenges to the stated aims of the Human Rights Council to form a truly universal monitoring mechanism: echoing broader dynamics of world politics and the return of unilateralism instead of postwar multilateralism, the United States announced its withdrawal from the Council in 2018.

Other monitoring mechanisms include regional human rights expert bodies and diverse international courts, including the International Court of Justice and the International Criminal Court, both of which operate under the UN. Numerous regional mechanisms also exist: these include the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human Rights and Peoples’ Rights. The past few decades have also seen the proliferation of diverse kinds of other monitoring mechanisms of a more interim nature, aimed at addressing grave international humanitarian catastrophes and genocide, including the Commission on Truth and Reconciliation in Yugoslavia, the National Unity and Reconciliation Commission of Rwanda, and the Kosovo Truth and Reconciliation Commission (Kelly 2011; Wilson 2001, 2017).

References

  • Charlesworth, H. , Larking, E. (2014) Human Rights and the Universal Periodic Review. Cambridge University Press.

  • Cowan, J. Billaud, J. (2017) The “Public” Character of the Universal Periodic Review: Contested Concept and Methodological Challenge. In: Niezen, R. , Sapignoli, M. eds. Palaces of Hope. Cambridge University Press.

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  • Halme-Tuomisaari, M. (2013) Contested Representation: Exploring China’s State Report. Journal of Legal Anthropology, 1(3): 333359.

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  • Kelly, T. (2011) This Side of Silence Human Rights, Torture, and the Recognition of Cruelty. University of Pennsylvania Press.

  • Wilson, R. (2001) The Politics of Truth and Reconciliation in South Africa. Cambridge University Press.

  • Wilson, R. (2017) Incitement on Trial: Prosecuting International Speech Crimes. Cambridge University Press.

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