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November, 6 2019
November, 6 2019
The role of the Human Rights CommitteeThis article carries out an impact assessment of the role of the Human Rights Committee (hereafter called the Committee) regarding the protection of human rights. Outlining the layout of this work, firstly, the structure and role of the Committee under the International Covenant on Civil and Political Rights (hereafter called the ICCPR) are briefly described. Secondly, reference is made to the implementation mechanisms available to the Committee and after, their effectiveness is discussed. Regarding the first implementation mechanism (the reporting procedure), its effectiveness is examined against four factors. Further, the non-use of the inter-state complaints system is highlighted. Finally, the individual complaint system is analysed and the Committee's achievements and limitations, with regards to the protection of human rights, through this procedure are depicted. This work concludes that the Committee, despite its limitations, can become a useful body for the protection of human rights globally.
An overview of the Committee
The Committee was established under Art.28 of the ICCPR as the treaty's monitoring body. It consists of eighteen independent and expert members who must be "persons of high moral character and recognised competence in the field of human rights" with "consideration given to the usefulness of the participation of some persons having legal experience". Most Committee members, thus, are persons with impressive credentials such as lawyers--judges and academics, who specialise in constitutional law, criminal law and international law. They are elected to serve in their personal capacity and not as government representatives for a term of four years and they are eligible for re-election. Each State party may nominate a maximum of two persons who must be nationals of that State. The elections take place by secret ballot of the States parties to the ICCPR at a special meeting convened by the Secretary-General of the United Nations.
Further, pursuant to the provisions of the ICCPR, the Committee meets three times annually, for a three weeks session each time. Accordingly, the Committee is a part-time body like most of the international human rights organs. It should be noted that, although the Committee should decide by majority vote, in practice it takes its decisions by consensus. Finally, as Opshal notes, the Committee cannot act ex officio and take initiatives that are outside the functions provided under the ICCPR. In other words, it cannot operate under the International Covenant on Economic, Social and Cultural Rights or any other treaty. Therefore, the Committee's task is to supervise and monitor the implementation of the rights provided in the ICCPR by the States parties.
In order to succeed, three monitor mechanisms are available to the Committee. First, there is the compulsory reporting system, whereby states parties provide information on the steps they have taken to give effect to the rights recognised under the ICCPR. In addition to that, there is an inter-State complaints procedure and finally under the First Optional Protocol, the Committee can receive and consider individual complaints against State parties, also known as "communications".
The Reporting Procedure
The reporting procedure is considered as the Committee's principal measure of implementation. However, it has the built-in limitation that states, in order to be obliged to submit reports, must ratify or accede to the ICCPR. Nevertheless, the States parties to the ICCPR must submit periodic reports on the measures they have adopted which give effect to the rights recognised in the ICCPR and the progress made in the enjoyment of those rights. The initial reports are submitted within one year of the entry into force of the ICCPR for the State party concerned and thereafter, every five years. With the submission of the reports the Committee is able to assess, after "studying" the reports, whether the rights provided in the ICCPR are, and to what extent, implemented by the States-parties.
Further, the States have the opportunity to discuss with the Committee the difficulties experienced with the implementation of the rights. The purpose is to create a "constructive dialogue", as the Committee defines this exchange of information, in order to improve the law of the State concerned or to highlight good practices that may be used by other States in order to effectively implement the ICCPR. Further, the concluding observations of the Committee can also constitute an authoritative guide for future legislation regarding the protection of human rights.
However, the effectiveness of the Reporting System depends upon a variety of factors: the willingness of governments in providing full information; the possibility of obtaining further information from other sources than the states; the independence of the persons responsible to examine the reports; and the power of the Committee to make recommendations about specific improvements on the law and practice of the reporting State.
In the early years of the Committee, when the number of the States parties was limited (on July 1981, there were 66 States parties to the ICCPR), the large majority of them had discharged their obligation to submit initial reports. However, only a minority of them reported on time. The example of Zaire is illustrative: its initially report came nine years after the entry into force of the ICCPR, following a number of reminders, informal contacts and meetings with the State's representatives. Despite these problems, it was argued, at the time, that the quality of States' reports showed the importance that different states worldwide had attached to their reporting duty.
However, as the number of the States parties increased the practice of the countries to produce or submit reports on time has been deemed inadequate. The reason for this was the view of some countries that a filibuster is the best approach to the obligation to submit their reports. In 1993, for example, the submission of Libya's report was 10 years late and it was subsequently criticised by the Committee as excessively general. Another problem had to do with the poor quality and bad presentation of some of the reports. As Higgins explained, this was attributed to the fact that the representatives of some States were not sufficiently qualified to participate to the examination of their country's report. As a result, the Committee asked the States in question, to return to a next session with more qualified delegations. What is more, the Committee had to suspend, in one case, the examination of a State's report because the representative was unaware of the report's content! Despite the fact that this technique had sometimes worked and the process of examination has by and large improved, there are still occasions where the Committee faces a resume filibuster.
Thus, it is apparent that the Reporting Procedure is weak because it relies on the willingness of governments to discharge their reporting duty. Accordingly, the failure on behalf of States to cooperate can render the implementation of the ICCPR's rights ineffective. This is a serious defect of the system because when States do not discharge their duty to report the only "sanction" available to the Committee is to name the States in default in its annual reports. This, however, does not have any practical importance. States which violate human rights may ignore the Committee since no sanctions will be brought against them. This renders the main aim of the Committee for proper implementation of human rights unattainable. Cooperation with governments is, therefore, a matter requiring improvement.
Information from objective sources
Rendering the Reporting System effective requires the Committee to have an independent fact-finding capacity. In other words, it is important for the Committee to have the ability to obtain information from sources other than governments. Bearing in mind that State reports are presented by States officials, it is inevitable that only the government's point of view will be presented. Therefore, in order for the Committee to get the real picture, other sources are required. One such source is the specialised agencies that can cooperate with the Committee by working on matters falling under their field of competence. However, the Committee, during its first years, has been very slow in pursuing this cooperation. What is more, some States argued that examination of their reports, based on information from independent sources, were inadmissible.
These problems were not solved until the 1990s and so specialised agencies are now able to take active part in the Committee's activities. Accordingly, specialised agencies receive parts of State reports but they do not possess the right to comment upon them; they may do so only if requested by the Committee. Such requests have not been made yet. Instead, the Committee decided that specialised agencies can submit information to individual members of the Committee who can used it if they thing that is useful. Therefore, despite the use of the specialised agencies services, these play only a marginal role in the reporting procedure.
The Committee can also obtain objective information from non-governmental organisations (NGOs) that have consultative status in the Economic and Social Council. In the past, NGOs had no authority to present information to the Committee when it was examining State reports, although the members of the Committee in their individual capacity could obtain information from them. On the one hand, it was argued that this "cooperation" reinforced the effectiveness of the Committee, but on the other it was criticised as being a real defect in the system, mainly because of NGOs lack of official standing. The role of NGO's was officially recognised by the Committee in 1993 when it was decided that information send by them should be regarded as official documents. Thus, Committee's members often rely upon information received by NGOs, when questioning State's delegations. Even if this is a major step forward, still a huge gap exists between the information that could assist the Committee and the input provided by the NGO's. To explain, the problem is twofold: the local human rights institutions often do not send any reports and even if they do, the information reaching the Committee is usually too late or is too general to be of any assistance.
Despite these problems, the information provided by NGOs is of particular importance for the Committee. It enables the Committee to examine the real picture of the situation in a specific country regarding the protection of human rights.
Independence of members
Moving along, the independence and impartiality of those who examine the reports is of great importance to the reporting system. The ICCPR provides for the independence of members, but there is not a requirement for them to be completely independent from their governments. As a result, in some occasions, among the members there have been individuals in government service, such as members of the Parliament or even ministers. What is more, the members of the Committee are nominated by governments which usually make sure that the nominee is not going to criticise their country and thus high premium is not always placed on the most important individual qualities, such as competence.
Despite these problems, it is generally accepted that the quality and independence of the Committee members have generated mutual respect and esprit de corps among them. For example they consciously tried to avoid Cold War overtones and be unbiased in their questioning, though they disagreed on many important matters due to their different backgrounds.
More recently, a survey of the curricula vitae of the current members (in October 2003) showed that they have no direct connections with their governments and thus, fulfil the requisite criterion of independence. However, one can argue that in order this impartiality and independency to be preserved for the future Committees, the election process should be reformed and provide for actual politically impartial proceedings.
The power to make recommendations
The fourth factor required for an effective system is the power of the Committee to take legally binding remedial action. It is argued that, only recommendations addressed to a specific State, regarding cases of non-compliance, would prevent further violations of human rights; thus, this may be the only way to promote efficient protection for human rights.
However, the Committee's earlier practice was to adopt a restrain interpretation of its powers under Art.40(4) of the ICCPR and instead of making an assessment of an individual state's conduct, it preferred to explain the meaning of particular articles in the ICCPR. This practice was wholly defective and the Committee started issuing concluding suggestions to individual reports in order to achieve the desired level for the ICCPR's implementation. The concluding observations are viewed as authoritative statements on whether a State has complied with its reporting duties; thus, it is a kind of Committee "jurisprudence".
Subsequently, States were criticised for submitting late or misleading reports or for failing to incorporate the ICCPR in the domestic law. What is more, since 2001 the Committee created a following up procedure, using a Special Rapporteur, who meets with State's representatives when a country has failed to respond to the Committee's observations, in order to pursue the issue.
Unfortunately, the concluding observations are not legally binding on States but instead are authoritative interpretations of the ICCPR. In other words, the Committee does not have the power to enforce its observations but can only, as already noted, name the delinquent countries in its annual reports. Therefore, one can argue that the lack of sanctions attached to non compliance limits the power of the Committee. The pressure brought against a State, by the Special Rapporteur, to comply with the concluding observations place only a moral duty upon the countries to implement its suggestions and is thus a non effective measure for implementation of the ICCPR's rights.
Besides concluding observations on individual State reports, the Committee also issues General Comments. These, constitute the Committee's understanding of a particular article of the ICCPR and are addressed to all States parties with the aim of promoting cooperation between States, improvement of reporting and ICCPR's implementation. For example the Committee held that for Art.7 to be implemented is not sufficient for States to prohibit torture or cruel, inhuman or degrading treatment or punishment or make it a crime; they must also ensure an effective protection through some machinery of control. Arguably, the General Comments provide governments with a better understanding of their obligations under the ICCPR. This is another way towards the effectiveness of the reporting system and ultimately to the efficient implementation of the ICCPR's rights.
The Inter-States Procedure
The second mechanism available to the Committee is, as mentioned at the beginning, the optional procedure of inter-states complaints. Accordingly, a State party can submit a communication to the Committee alleging human rights violations by another State party, provided that the States concerned recognise the competence of the Committee to receive and consider such complaints. Despite the fact that 48 countries (including the United Kingdom) accepted the procedure, to date no inter-state complaint had been submitted to the Committee. This is because, as Robertson illustratively said, "dog does not eat dog at the UN". Therefore the Committee's options towards the effective implementation of the ICCPR are limited to the reporting procedure and the individual's communications procedure (examined immediately below).
The individual communications procedure
The procedure in question, which is the most significant regarding individuals, is provided under the First Optional Protocol (the OP1) to the ICCPR. The Protocol came into operation on 23 March 1976 and by its acceptance a state party:
"....[R]ecognises the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant".
In other words, individuals claiming that their rights under the ICCPR have been infringed, can complain to the Committee, that examines the communications and forward its views to the State party and to the communicant concerned. In order for a communication to be considered in its merits, a number of admissibility criteria set out in the OP1, must be met. A particularly important requirement is that the author of the communication must be an "individual" who claims to be a "victim" of a violation of one of the rights recognised in the ICCPR. This means that companies or NGO's do not qualify to report violation of human rights under this procedure.
According to Robertson and Merrills, much of the Committee's work is related with issues of admissibility. Indeed, the Committee has held that in cases where the victims are unable to lodge a complaint, because they are dead as a result of State's actions or omissions, or they are in detention, it is allowed for others to bring a communication on behalf of them. However, a close relationship between them and the victim is required and the victim has (or would have) consented himself or herself to such an action.
Further, the Committee defined the meaning of the term "victim". Specifically, in Aumeeruddy-Cziffra v Mauritius (the Mauritian Women Case), it was held that a person cannot be a victim if his/her rights are not actually affected but it is a matter of degree how far this criterion should be taken. In this case it was decided that women, whose husbands were at risk of deportation because their residence permits might be withdrawn any time, could be considered as "victims".
This flexible approach of the Committee was welcomed in the academic circles because, as it was argued, it deals adequately with the matter of providing a right to lodge a complaint to detainees, who otherwise could be prevented by their authorities from doing so and thus stay unprotected. Therefore, one can say that the Committee has interpreted its jurisdiction quite literally and, as Robertson and Merrills concluded "its handling of issues of admissibility in general has been exemplary".
Achievements of the procedure
When a communication meets the admissibility criteria, the Committee's jurisdiction is mandatory, namely is required to consider the communication in its merits. The Committee has reached substantive conclusions on a large number of issues, often unfavourable to States parties.
The first cases considered by the Committee concerned Uruguay, as the then Government was accused of gross violations of the rights of political opponents. In one case, indeed, the treatment endured by the victim constituted violations of the most basic provisions of the ICCPR. When Uruguay eventually moved away from massive repression, it was argued that it remained uncertain whether this change was strictly due to the Committee. However, bearing in mind that from the first sixty-four cases in which the Committee gave a decision on the merits almost forty-one related to Uruguay, one cannot deny that the Committee was "responsible" for this change.
The Committee's work, however, have not been confined merely to consideration of grave violations of the ICCPR. It also considers cases regarding the compatibility of national laws with the rights provided under the ICCPR, which are similar to the cases examined by the Strasbourg Court under the European Convention on Human Rights (ECHR). The case of Toonen v Australia is illustrative of the situation. In that case the victim complained that the Tasmanian Criminal Code, which prohibited homosexual acts, was in violation with his right under the ICCPR not to be subjected to arbitrary or unlawful interference with his privacy. The Committee's view was that the criminalisation of homosexual conduct could not be considered a proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. Subsequently, the government of Australia, based on this view, repealed the Act in question. Commenting on the decision Robertson rightly argued that the Committee did act like a court, delivering an important and well argued decision. Accordingly, the case is a good example of how the Committee might function, in order to protect human rights and thus become an effective guardian of the ICCPR.
Significantly, the Committee had also reached to decisions which meant, as Higgins illustratively said "life or death for a particular individual". In particular, when a complaint is urgent, the Committee may request from the States to take the so called "interim measures". The purpose of these measures is a protective and preventive one, "to avoid irreparable damage to the alleged victim". As Robertson and Merrills note in their book, this procedure is usually preferred by prisoners, who are on death row, aiming the stay of execution, while the Committee is considering the communication.
Indeed, the Committee had save communicant's lives as it happened in Pratt and Morgan v Jamaica. There the applicants, who were awaiting execution, complained that the Court did not state the reasons for dismissing their appeal against conviction until four years later. The Committee granted stay of execution and eventually the Privy Council of Jamaica, where the case returned, based on the Committee's views held that unreasonable delay in appeal cases prevents imposition of the death penalty.
Defectiveness of the system
Unfortunately, this was not always the case and executions were carried out despite the interim measures requested by the Committee. The reason is that interim measures are not legally binding, having instead a moral force. However, moral force is not enough in order to oblige States to comply with the Committee's views and provide effective implementation of the rights under the ICCPR. For this reason, the Committee had recently established that conformity with interim measures is obligatory for States parties.
The discussion on the status of the interim measures inevitably leads one to examine the impact of the Committee's views to the States concerned. The views of the Committee have the same status as its concluding observations, meaning they are not legally binding. Despite this, there are countries that took action in response to the views of the Committee against them. On the other hand there are countries that have not complied with the Committee's findings. There is not, however, any possibility of sanctions against them. The Committee provided instead for the appointment of a Special Rapporteur for the follow up on views, who tries to achieve, with the State's cooperation, a satisfactory solution to the case. Accordingly, it could be argued that the individual's complaint system can only work effectively with State parties' involvement and cooperation.
A further problem is that the number of communications considered by the Committee can be deemed as unsatisfactory. Indeed, as of June 2004, only 1,295 communications had been registered from the 104 States which ratified the OP1 so far. It can be said that the reason for that is that most people are ignorant of the procedure or even of the Committee. This lack of knowledge, one can argue, derives from the confidentiality of the proceedings under the ICCPR and the little publicity that the views receive. As a result only a few specialised professional journals may discuss them but most of the people have not even heard of the Committee's work.
What is more, many of the States parties to the OP1 are also parties to regional treaties on human rights such as the ECHR; this, as Robertson and Merrills note in their book, does not in itself prevent an individual from lodging a complaint to the Committee. However, if the same complaint is pending under the ECHR then it cannot be examined by the Committee. Therefore, most people prefer the more effective regional procedure because its decisions are, comparable to those of Committee, legally binding to the State party concerned.
When eventually a complaint is lodged, it may take several years to be dealt with by the Committee. This is, mainly caused, due to the part-time character of the Committee because it is not possible for the Committee to satisfactorily deal with problems under the ICCPR in a time of nine weeks a year. Therefore, a change in the way the Committee considers communications, in order to deal with communications in a shorter time, could strengthen the value of its decisions and lead to an effective implementation of the ICCPR's rights.
Having examined the Committee's main functions, one may argue that in spite of the constraint of its powers, as analysed above, the Committee has effectively protected the rights of individuals. The Committee is not a court of law and it cannot be deemed as one. Indeed if we perceive the Committee as an International Supreme Court then we will be disappointed by its impact towards the protection of human rights. But, if we its actual role, as a quasi-judicial body, then it has been quite useful. However, a number of recommendations can be made in order for the Committee to become a successful guardian of the ICCPR. The main problem that should be dealt with is the lack of any enforcement power attached to the Committees "concluding observations" and "views".
It is true that the work of the Committee exerts influence to protect the rights of individuals. Unfortunately, this work depends on government's cooperation and if this is not attained then the Committee's findings cannot be of any assistance regarding the implementation of the ICCPR's rights. Therefore, there is a great need for the decisions of the Committee to be legally binding upon States. This is the only way for an effective implementation of human rights globally. It remains to be seen whether and when the Committee will be transformed to a body able to bring human rights protection to another dimension.
 ICCPR Art.28(2).
 Higgins, 1996: 570.
 ICCPR Art.28(3).
 ICCPR Art.29(2).
 ICCPR Art.29(1).
 ICCPR Art.30(4).
 ICCPR Art.37(2).
 ICCPR Art.39(2)(b).
 Steiner and Alston, 2000: 707.
 Opsahl, 1992: 396.
 Boerefijn, 1995: 766.
 ICCPR Art.40(1).
 ICCPR Art.40(1)(b).
 Higgins, 1996: 572.
 HRC, Fact Sheet No.15(Rev.1): p.15.
 Robertson and Merrills, 1996: 44-47.
 UN Doc A/35/40, Annex I.
 Fischer, 1982: 145.
 Opshal, 1992: 398.
 Fischer, 1982: 145.
 Bayefsky, 1994, cited in Robertson and Merrills, 1996: 44.
 Higgins, 1996: 571.
 Robertson and Merrills, 1996: 44.
 Higgins, 1996:571.
 Robertson and Merrills, 1996: 44.
 Higgins, 1996: 571.
 Robertson, 1999: 48.
 ICCPR Art.40(3).
 Fischer, 1982: 146.
 See the example of Chile noted in Boerefijn, 1995: 784.
 Harris, 2004: 681.
 Robertson and Merrills, 1996: 45.
 Fischer, 1982: 147.
 Robertson and Merrills, 1996: 46.
 Harris, 2004: 681.
 Hakki, 2002: 87-88.
 Rehman, 2002: 84.
 Robertson, 1999: 49.
 Fischer, 1982: 143.
 Joseph et al, 2000 cited in Harris, 2004: 680.
 Boerefijn, 1995: 786.
 See Steiner and Alston, 2000 at 712.
 Robertson and Merrills, 1996: 48-49.
 HRC, Fact Sheet No.15(Rev.1): p.14.
 Fottrell, 2002: 489.
 Rehman, 2002: 87.
 ICCPR Art.40(4).
 Opshal, 1992: 412.
 General Comment No.20 (1992 ): par.8.
 ICCPR Art.41.
 HRC, Fact Sheet No.15(Rev.1): p.18.
 Robertson, 1999: 49.
 OP1, Art.1.
 Ibid, Art.1(3)(4).
 Ibid, Art.2, 3 and 5.
 Ibid, Art.1.
 Harris, 2004: 682.
 1996: 58.
 Herrera Rubio v Colombia, Communication No.161/83.
 Y v Australia, Communication No.772/97.
 Rehman, 1996: 92-93.
 Communication No. 35/78.
 Ghandhi, 1998 cited in Hakki, 2002: 92-93.
 Robertson and Merrils, 1996: 68.
 Conteris v Uruguay Communication No.139/83.
 Forsythe, 2000: 76.
 Robertson and Merrills, 1996: 60.
 Communication No.488/92.
 ICCPR Art.17.
 Communication No.488/92 at par.8.5.
 Robertson, 1999: 47.
 Higgins, 1996: 577.
 Naldi, 2004: 447.
 Robertson and Merrills, 1996: 57.
 Communication No. 225/87.
 See Piandiong et al. v The Philippines, Communication No.869/99.
 Robertson and Merrills, 1996: 57.
 Naldi, 2004: 447.
 HRC, Fact Sheet No.15(Rev.1): p.18.
 Rehman, 2000: 102.
 Opshal, 1992: 422.
 HRC, Fact Sheet No.15(Rev.1): p.17.
 Hakki, 2002: 96.
 Robertson and Merrills, 1996:67.
 OP1, Art.5(2)(a).
 Robertson, 1999: 49.
 Robertson and Merrills, 1996: 71.
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