The Human Rights Committee

1
The Human Rights Committee

• Prof. Martin Scheinin
• Åbo Akademi University

2
Introduction ICCPR, the HRC and the UN Human
Rights System

• The political arm the Commission on human
  rights, the Sub-commission, their specialized
  procedures, the Security Council
• The legal arm the 6 (or 7) main human rights
  treaties and their monitoring bodies
• The High Commissioner and the Secretariat
• Governments and NGOs
• Towards a Human Rights Council (as the political
  arm)

3
Human Rights Instruments

• The Universal Declaration (1948)
• The Covenants of 1966
• Covenant on Civil and Political Rights
• Optional Protocol (complaints procedure)
• Second Optional Protocol
• Covenant on Economic, Social and Cultural Rights
• Plans for an Optional Protocol on complaints
• Specialized Treaties
• CERD, CEDAW, CAT, CRC, MWC
• Regional Human Rights Treaties
• ILO Conventions

4
Monitoring Mechanisms

• Treaty Bodies
• Note the CESCR as an exception (resolution
  body)
• Periodic Reporting
• Mandatory
• Similarities and differences
• Inter-State Complaints
• Individual Complaints
• General Comments/General Recommendations

5
The Covenant on Civil and Political Rights

• The Substantive Rights Provisions
• Arts. 1, 3, 6-19, 21-27 partly 2 2 OptProt
  Art. 1
• Provisions on the Operation of Rights Provisions
• Arts. 2, 4, 5, 20, 50 OP art 10, 2OP arts. 6
  and 9
• Provisions on the Human Rights Committee and its
  Monitoring Functions
• Arts. 28-45 OP arts. 1-6 2OP arts. 3-5
• Provisions on the ICCPR as an International
  Treaty
• Arts. 48-49 and 51-53 OP arts. 8, 9, 11-14
  2OP arts. 2, 7,8, 10, 11

6
Human Rights Committee

• A Body of Independent Experts
• Composition 28, 31
• Elections 29-30, 32
• Guarantees for independence 33, 38
• Main Functions
• Consideration of Reports by States 40
• Consideration of Individual Complaints OP
• Adoption of General Comments 40.4

7
The Rights Covered

• Civil Rights 6-18, 23-24
• Political Rights 19-22, 25
• Beyond civil and political rights 26, 27, 18.4,
  22, 1
• Not covered right to property, right to
  nationality (see 24.3), right to asylum (see 7
  and 13)
• Ratification data

8
The Reporting Procedure

• Periodicity the Reporting Cycle
• Preparation, submission, translation and issuing,
  list of issues, oral consideration, concluding
  observations, follow-up response
• Points of entry for NGOs)
• Hearings before submission on the domestic level
  before list of issues and before oral
  consideration at the UN
• New emphasis on follow-up
• Follow-up submission on selected issues in 12
  months
• Consideration of situations in the absence of a
  report
• Either with or without a government delegation
• Aims at facilitating the submission of an overdue
  report

9

The Reporting Cycle
Oral Consideration
NGO briefing

Concluding Observations
List of Issues
Official NGO hearing
Implementation and Follow-up by the HRC
Shadow reports
Issuing
Submission
National Preparation of Report (federal
procedures, NGO hearings)
10
The OP Procedure for Individual Complaints

• Registration
• Role and limits of secretariat action
• Role of the Committees Special Rapporteur on New
  Communications (OP 4.1)
• Form, substance, language (OP 2)
• Transmittal to the State party (OP 4.1, Rule 97)
• Determination of Admissibility and Merits
• Admissibility also by working group (para. 2)
• Written adversarial procedure (OP 4.2, 5.1, 5.3)
• Merits
• Confidentiality see Rule 102
• Issuing of Views (OP 5.4)
• Individual opinions (Art. 39.2b)
• Follow-up (OP 6)
• Special Rapporteur on Follow-up on Views

11
Admissibility Conditions

• Art 1 ratione loci/personae/temporis
• Representation by relative (author) or counsel
• Extraterritorial effect of the Covenant,
  continuing effect of a violation, state
  responsibility for violations by third parties
• Art 2 ratione materiae a claim and its
  substantiation
• Facts and evicence jurisprudence by the
  Committee
• Art 3 ratione materiae incompatibility abuse
  reservations
• Art 5.2 the same matter exhaustion of domestic
  remedies
• Discrepancies between authentig language versions
• Recoverable inadmissibility grounds

12
Interim measures of protection

• Rule 92 of the Committees Rules of Procedure
• Degree of compliance is traditionally high
• Jamaica and other Caribbean Commonwealth
  countries
• Newer challenges Uzbekistan, Tajikistan, Belarus
  even Canada
• Dante Piandiong et al. v. the Philippines (2000)
• Grave breach of the Optional Protocol
• Is execution a special case? See para. 5.4. Two
  cases of non-compliance in the context of
  deportation follow the same reasoning (Ahani v.
  Canada and Weiss v. Austria)
• Compare to European Court in Cruz Varas v. Sweden
  (1991) and Mamatkulov and Abdurasulovic v. Turkey
  (2003)
• Other instances of Rule 92 requests
• Deportation/expulsion not solely in art. 6/7
  cases
• Permanent environmental harm to indigenous groups

13
Reservations to the CCPR

• The Vienna Convention Regime
• Note also article 20, paragraph 3
• Practice of the European Court of Human Rights
  (art. 57, Belilos, Loizidou)
• HRC General Comment No. 24
• severability of impermissible reservations
• Kennedy v. Trinidad and Tobago (845/1999)
• compare, however, Hopu and Bessert v. France
  (549/1993)
• see, also, the dissenting opinion

14
Legal Nature of the Findings by the HRC

• Recommendations?
• Institutionalized practices of interpretation in
  relation to treaty obligations by the body
  authorized to monitor compliance
• CCPR art. 2, para. 3 a right to an effective
  remedy, legal basis for the Final Views
• Challenges unexplained non-compliance,
  references to domestic law, contesting the
  Committees interpretation
• Piandiong et al. v. Philippines (869/1999)
• Rule 92/"grave breach" of Opt. Protocol art. 1
  when irreparable harm (execution) caused in a
  case pending before the HRC
• Laptsevich v. Belarus (780/1997)
• Language and legal nature of the Concluding
  Observations

15
Extraterritorial effect of human rights treaties

• HRC Concluding Observations on Israel (1998 and
  2003)
• the Covenant must be held applicable to the
  occupied territories and those areas of Southern
  Lebanon and West Bekaa where Israel exercises
  effective control (CCPR/C/79/Add.93)
• the provisions of the Covenant apply to the
  benefit of the population of the Occupied
  Territories, for all conduct by Israels
  authorities or agents in those territories that
  affect the enjoyment of rights enshrined in the
  Covenant and fall within the ambit of state
  responsibility of Israel under the principles of
  public international law (CCPR/CO/78/ISR)
• HRC Lopez Burgos v. Uruguay (1981)
• Abduction of citizens on foreign soil by State
  agents
• HRC Ibrahima Gueye et al. v. France (1989)
• The authors were non-citizens and non-resident,
  subject to French jurisdiction only in that they
  rely on French legislation in relation to their
  pension rights.
• HRC Concluding Observations on Iran (1993)
• Fatwa on Salman Rushdie and threats to execute it
  outside the territory of Iran

16
Continuity of Obligations

• State Succession Former Soviet Union and Former
  Yugoslavia
• Kazakhstan as the last case no reservations
• practical significance no breaks in State
  responsibility
• Changes in Sovereignty
• Hong Kong and Macau
• Potentials of Reporting by Non-States?
• Kosovo
• Issue of Withdrawal the Case of North Korea and
  General Comment No. 26
• compare to the Vienna Convention Regime

17
Distinction vs. Interdependence

• J.B. et al. v. Canada (118/1982)
• distinction approach (right to strike)
• General Comment No. 23
• distinction approach to minority rights
• Hopu and Bessert v. France (549/1993)
• interdependence approach to minority rights
• dissenting opinion distinction approach
• General Comment No. 28
• interdependence within the CCPR
• General Comment No. 29
• interdependence beyond the CCPR

18
Unconditionality States of Emergency and
Derogation

• Article 4 taken at its face value
• narrow list of nonderogable rights in para. 2
• General Comment No. 29
• limiting the power of States to derogate, through
  the interdependence approach and with reference
  to other areas of international law
• nonderogable dimensions of arts. 2, 9, 10, 12,
  14, 20, 26, 27...
• Relevance in the context of counter-terrorism
• Systematic attention in the reporting procedure
  since September 11, 2001