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Implementation Of The ICCPR And ICESCR

Posted on:2015-08-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:P XuFull Text:PDF
GTID:1226330467475162Subject:International Law
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The20th century recognized the rise of international human rights law as one of the main symbol of the time. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted in1966.(hereinafter referred to as two Covenants) confirm the basic characteristics of human rights and become the basis of numerous international human rights treaties. However, the Covenants will be a "dead letter" without effective implementation. The implementation of the two Covenants has attracted the attention of the international community since they came into force. Over the years, international bodies and human rights organizations have been calling for "bring human rights home". States parties to the two Covenants are concerned about how to strike the balance between effectively safeguarding national sovereignty and adhering to the Covenants.The comprehensive research on international legal system of implementation mechanism of the two Covenants has significant importance both for the prospects of the two Covenants and the reforms of China’s human rights legal system and policy choices.This thesis is divided into three major sections:introduction, body and conclusion. The main body of the thesis consists of five chapters.The introduction section presents the issues to be adressed, conducts a major review of the relevant literature and a brief description of the research paper ideas, research methods and structural arrangement.Chapter one defines the basic concepts of the implementation and monitoring of human rights treaties, enforcement and complying with human rights treaties and the relationship among them. Implementation of human rights treaties means the process obtained by specific measures to carry out the human rights obligations. Monitoring the human rights treaty refers to all procedures to detect the State party’s compliance with human rights standards. Compliance with human rights treay refers to the activities by states parties conforming to the relevant human rights treaty. In the human rights treaty system, Monitoring and implementation of human rights complement each other. Supervision is to promote better implementation of human rights treaties. Implementation is different from compliance with human rights treaty. Implementation aims to compliance with human rights treaty, while implementation is not a premise of compliance. Compliance can occur without implementation.It is difficult to make a clear distinction between human rights monitoring and enforcement in human rights treaty system. In a broad sense, the enforcement of human rights treaties means all measures taken to oblige states to respect for the human rights. The reputation sanctions can only play a very weak role in the field of human rights. Transnational legal process provides a better model of the States parties to comply with human rights norms.Chapter two discusses the requirements of the implementation of the two Covenants. Civil and political rights and economic, social and cultural rights are interdependent and indivisible. The implementation of the two Covenants can not be treated in a separate way. The Optional Protocol of International Covenant on Economic, Social and Cultural Rights and international practices effectively confirmed that the economic, social and cultural rights is justiciable.Two Covenants set out a special monitoring mechanism to facilitate the implementation of the Conventions. Despite of the different backgrounds and the development process, the supervision mode of two Covenants gradually converge over the time. But there are a lot of overdue reports and poor quality reporting. inter-State complaints have never been used, the individual communications end up with low efficiency.The third chapter analyzes the situation of the application of the two Covenants and the treaty body decisions in the States parties. To join the Covenants means that States Parties should satisfy the requirements of the two Covenants at all levels of government. At the legislative level, monism and dualism countries take a different approach for the Convention application. At the judicial level, the two Covenants are used to explain the relevant domestic laws and regulations as well as the basis of a judicial judgement by a number of States parties. As for the administrative measures, State parties take various human rights programs and establish national human rights institutions to ensure the fulfillment of the two Covenants. Decisions by human rights treaty body are indispensable part of the implementation of the two Covenants. The States parties have different views and practices on the general comments, concluding observations and views adopted on individual communications. As a whole, the decisions by the two human rights treaty bodies are not considered legally binding, the State party have no obligations to comply with these decisions.Chapter four deals with the impact of the implementation of two Covenants based on the State parties practices. Human rights indicators are useful instrument for estimating the effect of two Covenants. Human rights indicators are included in the two Covenants. However, the accuracy and breadth of information gathering have direct impact on rationality and results of human rights indicators. From the perspective of the direct effect, two Covenants have different impact on States parties. The impact of two Covenants is obvious on States parties which actively invovled in two Covenants, but the Covenants have little effect on the states which rarely set foot in it.In the sense of indirect effect, the two Covenants enhance the awareness of human rights, promote the universality of human rights and identify the human rights standards. There are many factors affecting the implementation of the two Covenants, the lack of political will to implement the Convention, institutional deficiencies of domestic institutional and the human rights treaty agencies hamper the effective implementation of the two Covenants. States Parties should be encouraged to participate actively in the two Covenants system, give full play to the role of non-governmental organizations and other non-state entities in terms of human rights mobilization. The human rights treaty bodies should abide by the terms of the Conventions and take appropriate measures to improve their efficiency.Chapter five explores the implementation profiles of the Covenant on Economic, Social and Cultural Rights in China, and analyzes the prospects of ratification and implementation of the International Covenant on Civil and Political Rights. As the state party to the International Covenant on Economic, Social and Cultural Rights, China has taken active measures to fulfill its obligations under the Convention. However, there are still some gaps between China’s action and requirements of the Convention on Economic, Social and Cultural Rights. China should make great efforts to improve the relevant legislation of economic, social and cultural rights. Integrating mediation into judicial remedies to develop judicial remedies for the economic, social and cultural rights. Establishing the independent national human rights institutions in China at an appropriate time to promote the implementation of the Convention.The conclusion summarizes the main ideas of the essay, clarifies the key points of the text, according to the Fourth Plenary Session of the18th, analyze trends in China’s human rights policy, especially the protection of civil and political rights and proposes unresolved issues.
Keywords/Search Tags:International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, Mechanisms for humanrights implementation, Human rights treaty bodies, Human rights indicator
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