Implementation Mechanisms

Generally the norms prohibiting discrimination in global treaties are implemented through committees comprised of independent experts scrutinising periodic reports submitted by states-parties and making observations on them, as well as issuing general comments and recommendations applicable to all states parties. These observations, comments and recommendations constitute an authoritative guide to the requirements of the relevant provisions.

However, in the case of certain global treaties,²¹⁷⁸ there is also the option of the examination of communications by individuals and or states-parties alleging non-compliance with the prohibitions concerned and issuing views or recommendations in respect of them, as well as in one instance²¹⁷⁹ establishing a Commission of Inquiry where it is alleged that persistent and serious violations had been committed which the State concerned had repeatedly refused to address, which can ultimately lead to the matter being brought before the ILO Conference or the International Court of Justice. The latter stage has yet to occur in relation to any prohibition on discrimination.

In several instances provision is only made for disputes about interpretation and application of the prohibition concerned to be brought before the International Court of Justice,²¹⁸⁰ but this has not always been accepted by states-parties and has not actually been used with respect to any prohibition on discrimination.

In one instance there is the theoretical option of using a conciliation and good offices commission to resolve disputes as to the interpretation and application of the prohibition,²¹⁸¹ but so far this body has never been called upon to exercise its functions.

The monitoring of Council of Europe treaty obligations relating to discrimination is also primarily effected by a committee of experts whose recommendations may be endorsed by a political body, the Committee of Ministers.²¹⁸²

In the case of one of treaty,²¹⁸³ the alleged victim of a breach of the prohibition or a state-party can complain to the European Court of Human Rights, whose judgment is legally binding and the implementation of which is monitored by the Committee of Ministers. In the case of two other instruments²¹⁸⁴ there is the option of allowing collective complaints regarding non-compliance with the prohibition,²¹⁸⁵ which can result in a recommendation by the expert committee being adopted by the Committee of Ministers.

For one treaty there is provision for the settlement of disputes as to the interpretation or application of the treaty through negotiation or any other peaceful means of the choice of the states-parties concerned, including submission of the dispute to an expert committee, to an arbitral tribunal whose decisions shall be binding upon the parties, or to the International Court of Justice.²¹⁸⁶

Implementation of the prohibition on racial discrimination in Council of Europe member states is also furthered by the work of the European Commission against Racism and Intolerance (“ECRI”), an independent human rights monitoring body established by the Committee of Ministers. Its remit includes reporting on the situation in the member states on racism and intolerance and on the action taken to implement its reports. It also adopts General Policy Recommendations which give substance to more general obligations to tackle racism and intolerance.

European Union law is meant to be implemented through national implementing measures but various provisions in it can be relied upon directly in national courts which can also seek rulings from the European Court of Justice as to the scope of a particular obligation regarding discrimination in the context of a specific case. Non-compliance with European Union law can lead to proceedings being brought by the European Commission against the member state concerned in the European Court of Justice.