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The Human Rights Committee

The Human Rights Committee. Prof. Martin Scheinin Åbo Akademi University. 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

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The Human Rights Committee

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  1. The Human Rights Committee Prof. Martin Scheinin Åbo Akademi University Martin Scheinin, Åbo Akademi

  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) Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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) Martin Scheinin, Åbo Akademi

  10. The OP Procedure for Individual Complaints • Registration • Role and limits of secretariat action • Role of the Committee’s 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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  12. Interim measures of protection • Rule 92 of the Committee’s 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 Martin Scheinin, Åbo Akademi

  13. Reservations to the CCPR • The Vienna ConventionRegime • 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 Martin Scheinin, Åbo Akademi

  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 Committee’s 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 Martin Scheinin, Åbo Akademi

  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 [Israel’s] 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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

  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 Martin Scheinin, Åbo Akademi

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