Use of Indicators by the Human Rights Committee

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Use of Indicators by the Human Rights Committee

• Martin Scheinin
• Åbo Akademi University
• Institute for Human Rights

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Background Paper No. 3

• Is the CESCR a special case? Article 2.1
• Each State Party to the present Covenant
  undertakes to take steps, to the maximum of its
  available resources, with a view to achieving
  progressively the full realization of the rights
  recognized in the present Covenant
• Compare to CCPR article 2.1
• Each State Party to the present Covenant
  undertakes to respect and to ensure to all
  individuals within its territory and subject to
  its jurisdiction the rights recognized in the
  present Covenant,

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The Method Applied

• The UNCOM database at SIM
• http//sim.law.uu.nl/SIM/CaseLaw/uncom.nsf
• indicator(s) 228
• benchmark(s) 13
• statistics gt250
• disaggregated gt250
• ... and a bit of intuition

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What is an Indicator?

• A quantitative or qualitative parameter that is
  empirical (data-based) in nature but is being
  used as a step in the legal/normative/
  interpretive assessment of treaty compliance
• Rather the first than the last step precedes the
  contextual assessment of all relevant data and
  arguments
• An indicator gives a direction for the process of
  compliance assessment, or, at best, creates a
  presumption of compliance/non-compliance

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Right to Life (Article 6)

• 2. In countries which have not abolished the
  death penalty, sentence of death may be imposed
  only for the most serious crimes in accordance
  with the law in force at the time of the
  commission of the crime and not contrary to the
  provisions of the present Covenant...
• Abdool Saleem Yasseen and Noel Thomas v. Guyana
  (Communication No. 676/1996) The Committee
  recalls that it is axiomatic that legal
  assistance be available in capital cases. -gt
  violation of article 14 -gt violation of article 6

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Humane Treatment of Detainees (Article 10.1)

• All persons deprived of their liberty shall be
  treated with humanity and with respect for the
  inherent dignity of the human person.
• Albert Womah Mukong v. Cameroon (458/1991),
  para. 9.3 As to the conditions of detention in
  general, the Committee observes that certain
  minimum standards regarding the conditions of
  detention must be observed regardless of a State
  party's level of developm-ent. These include, in
  accordance with Rules 10, 12, 17, 19 and 20 of
  the U.N. Standard Minimum Rules for the Treatment
  of Prisoners ... minimum floor space and cubic
  content of air for each prisoner, adequate
  sanitary facilities, clothing which shall be in
  no manner degrading or humiliating, provision of
  a separate bed, and provision of food of
  nutritional value adequate for health and
  strength.
• Rule 19 Every prisoner shall, in accordance with
  local or national standards, be provided with a
  separate bed, and with separate and sufficient
  bedding which shall be clean when issued, kept in
  good order and changed often enough to ensure its
  cleanliness.

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Delays before or pending trial (Articles 9 and
14)

• 14.3 In the determination of any criminal charge
  against him, everyone shall be entitled to the
  following minimum guarantees...
• (c) To be tried without undue delay
• 9.3 Anyone arrested or detained on a criminal
  charge shall be brought promptly before a judge
  or other officer authorized by law to exercise
  judicial power and shall be entitled to trial
  within a reasonable time or to release.
• The Committee uses comparative tables of its
  earlier case law, although emphasizing the
  contextual nature of its assessment

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Electoral Rights (Article 25)

• Every citizen shall have the right and the
  opportunity, without any of the distinctions
  mentioned in article 2 and without unreasonable
  restrictions (b) To vote and to be elected at
  genuine periodic elections which shall be by
  universal and equal suffrage and shall be held by
  secret ballot, guaranteeing the free expression
  of the will of the electors
• Istvan Mátyus v. Slovakia (923/2000) 9.2 As
  regards the question whether article 25 of the
  Covenant was violated, the Committee notes that
  the Constitutional Court of the State party held
  that by drawing election districts for the same
  municipal council with substantial differ-ences
  between the number of inhabitants per elected
  representative, despite the election law which
  required those voting districts to be
  prop-ortional to the number of inhabitants, the
  equality of election rights required by the State
  party's constitution was violated. In the light
  of this pronouncement, based on a constitutional
  clause similar to the requir-ement of equality in
  article 25 of the Covenant, and in the absence of
  any reference by the State party to factors that
  might explain the differ-ences in the number of
  inhabitants or registered voters per elected
  repr-esentative in different parts of Rožòava,
  the Committee is of the opinion that the State
  party violated the author's rights under article
  25

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Minority and Indigenous Peoples Rights (Article
27)

• ... shall not be denied the right, in community
  with the other members of their group, to enjoy
  their own culture...
• Ilmari Länsman et al. v. Finland (Communication
  No. 511/1992) the Committee notes that
  economic activities must, in order to comply with
  article 27, be carried out in a way that the
  authors continue to benefit from reindeer
  husbandry

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Nondiscrimination (art 26)Indirect Discrimination

• Cecilia Derksen, on her own behalf and on behalf
  of her daughter Kaya Marcelle Bakker v. the
  Netherlands (Communication No. 976/2001) The
  Committee recalls that article 26 prohibits both
  direct and indirect discrim-ination, the latter
  notion being related to a rule or measure that
  may be neutral on its face without any intent to
  discriminate but which nevertheless results in
  discrimination because of its exclusive or
  disproportionate adverse effect on a certain
  category of persons.

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National Human RightsInstitutions/Paris
Principles

• CCPR art. 2 (2) each State Party to the
  present Covenant undertakes to take the necessary
  steps, in accordance with its constitutional
  processes and with the provisions of the present
  Covenant, to adopt such laws or other measures as
  may be necessary to give effect to the rights
  recognized in the present Covenant
• Concl.Obs. on Mali (2003) The State party should
  take appropriate measures to allow the National
  Advisory Comm-ission on Human Rights to function,
  in accordance with the Principles relating to the
  status of national institutions for the promotion
  and protection of human rights ("Paris
  Principles"), as set forth in General Assembly
  resolution 48/134
• Project by the International Council on Human
  Rights Policy indicators and benchmarks approach
  to assess the performance of NHRIs.