4. State Responsibility, Treaty Compliance, and Dispute Settlement

This chapter looks at the number of ways that secure compliance with international environmental law can be employed. The more traditional approach to this subject is the familiar one of interstate claims for breach of international obligations, employing the variety of forms of dispute settlement machinery contemplated in Article 33 of the UN Charter. There are a number of disadvantages to enforcing international environmental law in this manner, particularly if it involves compulsory resort to judicial institutions. The chapter outlines these disadvantages which include the adverse effect on relations between the relevant states; the complexity, length, and expense of international litigation; the technical character of environmental problems, and the difficulties of proof which legal proceedings may entail, and uncertainty concerning jurisdiction and applicable law in legally complex disputes.

Tools for Compliance and Enforcement from Beyond WMD regimes

In seeking fresh ideas for twenty-first century WMD arms control and disarmament, there is value in looking at other regimes for tools and approaches that could be adapted and developed to enhance compliance and enforcement in contemporary WMD-related regimes. To this end, this report comprises a series of short essays that outline tools for treaty compliance or enforcement from regimes dealing with the environment, public health, small arms, international trade, and core international crimes.

Part I Foundational Issues, 4 Compliance or Effectiveness? Assessing the Reach (and Limits) of Treaty-Making

This chapter considers the question of how treaties can work if their members do not comply with the treaty’s terms. It argues that treaty effectiveness has only a minimal relation to compliance as generally understood by treaty lawyers and scholars. Treaty lawyers tend to focus first and foremost on divining the contours of agreement — what terms can be negotiated and concluded? Once a treaty exists, their concerns shift to implementation with an eye to making — or avoiding — claims that a member has breached whatever obligations the treaty imposes. The chapter begins by describing how the extant literature conceptualizes and measures treaty compliance and effectiveness. It then focuses on distinguishing these two concepts, and emphasizes how questions of treaty effectiveness, not compliance, deserve higher priority. The final section offers some practical advice and principles for pursuing more effective treaty-making.

US threats will not ensure Russian treaty compliance

Headline US/RUSSIA: Threats will not ensure treaty compliance

Part III Organs Monitoring Treaty Compliance, 9 The Committee on the Elimination of Racial Discrimination (CERD)

This chapter studies the Committee on the Elimination of Racial Discrimination (CERD), the oldest of the monitoring bodies of the UN ‘core’ treaties. Preceded by a Declaration on the Elimination of All Forms of Racial Discrimination in 1963, the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) was adopted by the UN General Assembly on 21 December 1965 and entered into force on 4 January 1969. CERD oversees the implementation of the Convention. The chapter evaluates how CERD has worked to deliver its mandate, where it has innovated, and where it has been able to draw upon the wider human rights acquis to ground its positions, and where it may have struggled to deliver. It focuses on a number of issues around the core principles: discrimination and the grounds thereof; special measures; segregation; and the problem of addressing hate speech.

Part III Organs Monitoring Treaty Compliance, 11 The Committee on the Elimination of Discrimination Against Women

This chapter examines the Committee on the Elimination of Discrimination against Women (CEDAW), a body of independent experts assigned the task of monitoring states’ efforts to fulfil their obligations under the CEDAW Convention. The principal basis for monitoring was to be the submission and review of reports submitted regularly by States parties. The chapter then addresses the work of CEDAW and its contribution to making the guarantees of the Convention a reality. An assessment of the record of a treaty body such as CEDAW must take into account, among other factors, the mandate of the body, the expertise and commitment of its members, the political and international legal context of its work, the resources available to it, the efficiency and effectiveness of its procedures, and the quality and impact of its output.

Part III Organs Monitoring Treaty Compliance, 13 The Committee against Torture and the Subcommittee for the Prevention of Torture

This chapter focuses on the Committee against Torture and the Subcommittee for the Prevention of Torture. The role of the Committee is to monitor the implementation by States parties of their obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention). The goal of the Torture Convention is to eradicate torture, often seen as one of the gravest human rights violations, through a mix of prevention and repression. The Convention was supplemented in 2002 by the adoption of an Optional Protocol to the Convention, which established an additional supervisory body—the Subcommittee for the Prevention of Torture, which commenced its work in 2007. The chapter then considers the work of the Committee over the last thirty years and provides an overview of the evolution and functions of the Subcommittee.

Part III Organs Monitoring Treaty Compliance, 16 The Committee on Enforced Disappearances

This chapter describes the Committee on Enforced Disappearances (CED). Although many states doubted that there was any justification for creating a new committee only dedicated to the issue of enforced disappearances, the first years of the Committee have proved them wrong. This is due to the mobilization of civil society and families of the disappeared, particularly in some key states parties like Mexico, who understood well not only the complementarity between the Committee and other competent mechanisms, but also its added value. This is also greatly due to the dedication and dynamism of the members of the Committee, who all tirelessly worked so that, within a few years, the Committee would be ready to act effectively in order to eliminate enforced disappearances and assist victims in their legitimate quest for truth, justice, and reparation.

Part III Organs Monitoring Treaty Compliance, 10 The Human Rights Committee

This chapter discusses the United Nations Human Rights Committee, which is in charge of the supervision of a major human rights treaty within the UN machinery, the International Covenant on Civil and Political Rights (ICCPR). This was adopted in 1966 and came into force in 1976. The Human Rights Committee enjoys a peculiar position in the international human rights architecture. It has been labelled ‘as one of the most active and innovative’ bodies among the UN institutions involved in human rights monitoring, considering that it is in charge of one of the two covenants which, together with the Universal Declaration, are sometimes presented as the ‘International Bill of Rights’ and covers the broadest subject-jurisdiction matter. At the same time, the Committee and its work remain overlooked and quite obscure even for most human rights lawyers and certainly for a lay audience. The chapter assesses the Committee’s mechanisms and work.

Part III Organs Monitoring Treaty Compliance, 18 Reform of the UN Human Rights Treaty Body System

This chapter studies the initiatives mounted over the years by the United Nations to reform the operation of the treaty body system to respond to persistent difficulties. These have proceeded through a series of distinct initiatives which include the expert reports produced by Professor Philip Alston between 1989 and 1997; the ‘Unified Standing Treaty Body’ proposal championed by the former UNHCHR, Louise Arbour; and the so-called ‘Dublin process’ spearheaded by her successor to the post, Navanethem Pillay, which itself prompted the initiation of an inter-governmental process on treaty body reform. The chapter then traces the outcomes of the reform agenda as it has unfolded over the years, highlighting the nature of the processes adopted and culminating in a cautious prognosis for the future.