PART 1
are cited in the Commentary – principally, but
not exclusively, from the human rights courts that
have been established in Europe (the European
Court of Human Rights) and the Americas (the
Inter-American Court of Human Rights).
“Soft law” materials such as guidelines, nonbinding bilateral agreements, resolutions of
the United Nations General Assembly and
its organs, and codes and standards issued
by international organizations are referred to
frequently throughout the Commentary. Soft law
does not impose legal obligations on States and
such sources must be used carefully in order to
ensure that their legal weight is not overestimated
or otherwise distorted. Within these limits such
materials can play an extremely important role in
relation to several of the questions posed above.
They can, for example, help to identify or confirm
a particular legal trend or even contribute to
the development of customary international law
in relation to a particular aspect of trafficking.
They can also provide insight into the substantive
content of more general legal norms that
are contained in treaties. For example, the
Trafficking Protocol requires States to take some
measures to protect victims of trafficking. Soft
law materials are a key resource in determining
the actions required by States to fulfil this
particular obligation. The human rights focus
of this Commentary influences, to some extent,
the type of soft law materials available for
consideration. Two of the soft law sources that
are frequently cited in the Commentary (the work
of United Nations treaty bodies and of its special
procedures) are explained in detail below.
2.7.1. THE WORK OF THE UNITED NATIONS
HUMAN RIGHTS TREATY BODIES
For each of the major international human
rights treaties, a Committee of independent
experts has been established that is responsible
for monitoring the implementation, by States
30
parties, of its provisions.20 As part of their
obligations under these treaties, States parties
are required to lodge regular reports (called
“country reports”) with the respective Committees
on the situation with regard to protected rights
and the steps that State has taken to fulfil its
treaty obligations. The Committees examine
these individual “country reports” and a
dialogue is initiated with the reporting State. In
addition to providing guidance to that State, the
“concluding observations” of a treaty body on
the performance of a State party can provide
useful guidance to other countries on what is
expected of them in relation to a particular right
or standard set out in the treaty.
Five of the treaty bodies – the Human Rights
Committee, the Committee against Torture,
the Committee on the Elimination of Racial
Discrimination, the Committee on the Elimination
of Discrimination against Women and the
Committee on the Rights of Persons with
Disabilities – are able to receive and act upon
allegations of violations made by individuals
against States parties, provided the relevant
party has agreed to subject itself to such a
procedure.21 These “complaints mechanisms”
enable the Committees to apply the relevant
law to real situations involving real people,
in this way helping to clarify the substantive
content of norms. Most treaty-based bodies also
engage in active interpretation of the provisions
of their founding instrument through “general
comments” or “general recommendations”,
These are: the Human Rights Committee; the Committee
on Economic, Social and Cultural Rights; the Committee
on the Elimination of Racial Discrimination; the Committee
on the Elimination of Discrimination against Women; the
Committee against Torture; the Committee on the Rights
of the Child; the Committee on Migrant Workers; and the
Committee on the Rights of Persons with Disabilities.
20
Note that a complaints procedure for the Committee on
Economic, Social and Cultural Rights has been adopted
but is not yet in force. Article 77 of the Migrant Workers
Convention also establishes an individual complaints
procedure, which is not yet in force either.
21
RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING
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