The Jurisprudence of the United Nations Human Rights Committee and Other Treaty Monitoring Bodies

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  • 1 B.A. Hons (University of Oxford), L.L.M. (University of Nottingham).

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  • 1 The different UN bodies derive competence to consider human rights issues from either multilateral trea- ties or from the constitutional authority of the UN. Various mechanisms called charter-based bodies deal with minority issues, e.g. the Commission on Human Rights and its subsidiary, the Sub-commission on the Promotion and Protection of Human Rights. These bodies set standards and discuss issues. The Sub- commission has a mandate to identify, initiate, carry out and debate studies on human rights topics. It has a number of working groups, including one on minorities which issues a report on minorities each year to the Sub-commission. The Working-Group on Minorities, the only UN organ exclusively devoted to minority questions, was created subsequent to adoption of the UN Declaration of the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UN General Assembly on 18 December 1992, GA Res. 47/135. It provides a forum for discussion between non-governmental organiza- tions (NGOs), members of minorities, academics and governments. Charter-based bodies have a broader mandate than treaty-based bodies, which can deal solely with the provisions of the relevant treaty. Further, decision-making is generally based on majority votes as opposed to consensus required by treaty bodies. For further reading on the charter-based system of the UN, see P.Alston and F.Megret (eds.), The United Nations and Human Rights: fl Critical Appraisal (Oxford, 1" ed. 1995, 2nd ed. forthcoming May 2004). 2 Human Rights Committee (HRC) established by Article 28 of the CCPR Committee against Torture (CAT/C) under Article 17 CAT; Committee on the Elimination of Racial Discrimination (CERD/C) under Article 8 CERD; Committee on the Rights of the Child (CRC/C) established under Article 43 of the CRC; Committee on the Elimination of Discrimination against Women (CEDAW/C), established under Article 17 of CEDAW; Committee on Economic, Social and Cultural Rights (CESCR/C) estab- lished by the Economic and Social Council in 1985 to monitor the CESCR. Each Committee is composed of varying numbers of independent experts.

  • 3 T. Buergenthal,'The Human Rights Committee', in P.Alston and H.Steiner (eds.), International Human Rigbts Law in Context, (Oxford, 2000), 711. Buergenthal argues that the General Comments made by the HRC have developed from being initially related directly to the reporting procedure, to becoming over time a 'distinct juridical instrument enabling the Committee to announce its interpretations of different provisions of the Covenant in a form that bears some resemblance to the advisory opinion practice of international tribunes."Ihese are then relied upon in examining state compliance in reports and individual communications. A similar development in the use of General Comments has also been taken up by other Committees. 4 Article 1 First Optional Protocol to the International Covenant on Civil and Political Rights (CCPR Opt.Prot.), adopted on 16 December 1966, entered into force on 23 March 1976, 999 UNTS 171; Article 14 CERD; Article 22 CAT The Optional Protocol to CEDAW, adopted on 15 October 1999, entered into force on 22 December 2000, GA Res. 54/4, provides for an individual complaints mechanism in Article 1 similar to that under the CCPR Opt.Prot. In its 26"' session (7 May 2002), CEDAW/C adopted its draft model communication form but to date has not yet dealt with actual communications. 5 ... [W]ith the majority of States ratifying the majority ofTreaties'. Cf. P.Alston and H. Steiner (eds.), Inter- national Human Rigbts ..., 775. See also table of Status if Ratifications of the Principle Human Rights Treaties: . 6 Note unlike the CCPR and CERD, the CAT provides for the hearing of witnesses in Article 22(4). 7 In its 74"' session (2009`" meeting, 4 April 2002), the HRC heard the annual progress report of its Special Rapporteur on the follow-up to Committee views. The Special Rapporteur's task is to meet with state repre- sentatives and ensure follow-up replies from states. He highlighted that only 30 % of the Recommendations had been implemented and that there was a need for more publicity. Other members of the Committee emphasized the need for a mechanism so that the HRC could see exactly how and when states parties put Recommendations and judgments into effect, although no consensus was reached as to what form this could take.

  • 8 HRC, General Comment No. 30 (75) Reporting Obligations of States Parties under Article 40 of the Cov- enant, adopted on 16 July 2002 (2025'" meeting), CCPR/C/21/rev.2/Add.l2. This procedure was applied with respect to Gambia, considered by the Committee in its 74th session without a report and in absence of a delegation from that state party. 9 In its 71� session (March 2001), the HRC revised its rules regarding follow-up to concluding observations, placing a 12-month limit on states parties to provide information on the implementation of certain Recom- mendations. In its 1991" meeting, the Committee however noted that provision of information is scarce and designated a Special Rapporteur to examine follow-up information. 10 'In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minori- ties shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language.' 11 The CERD provides an important complement to the CCPR with strong provisions encompassing promo- tion, protection and affirmative action. Article 5 CERD in particular provides protection from discrimina- tion in the enjoyment of additional rights to the CCPR. 12 One additional ratification of the CCPR in 2001 by Eritrea. Cf. Office of the High Commissioner for Human Rights (OHCHR) status of ratification table at . 13 Unofficial figures HRC Sessions: Z3'" (15 October-2 November 2001), 74'" (18 March-5 April 2002), 75'" (8- 26 July 2002), 76'" (14 October-1 November 2002). As of 6 November 2002, there were 259 cases pending. The HRC's 74'" session proved particularly productive dealing with 24 communications. 14 HRC, Communication No. 779/1997, Anniidreli and Jouni Nakkalajdrvi v. Finland, views of 24 Octo- ber 2001, CCPR/C/73/D779/1997; HRC, Communication No. 942/2000, Jarle Jonassen et al. v Norway, decision on the admissibility of 25 October 2002, CCPR/C/76/D/942/2000; HRC, Communication No. 923/200, Istvdn Matyus v. Slovakia, views of 22 July 2002, CCPR/C/75/D/923/2000; HRC, Communica- tion No. 939/2000, Marie-Helene Gillot et al. v. France, views of 15 July 2002, CCPR/C/75/D/932/2000. Note also HRC, Communication No. 940/2000, ZifbiiAka Bi v. Ivory Coast, decision on the admissibility of 9 July 2002, CCPR/C/75/D/940/2000 and HRC, Communication No.1048/2002, Kenneth Riley et al. v. Canada, decision on admissibility of 21 March 2002, CCPR/C/74/D/1048/2002. The latter was declared inadmissible because the authors had failed to show that they were 'victims'. The case was brought by two

  • retired members of the Royal Canadian Mounted Police (RCMP). They argued that an amendment to the RCMP regulations allowing a Khalsa Sikh officer to wear a turban in place of the RCMP uniform was unconstitutional. The authors claimed, inter alia, a violation by the state party of Article 9 CCPR for per- mitting the display of bias within the police force, violation of Article 18 for introducing a 'denominational face to the most visible State agency' when protection of rights under Article 18 entails the retention of a secular state, Article 23, paras. 3 and 4, as RCMP affiliation with the religious beliefs of the Khalsa Sikh order which practice arranged marriages reflects state endorsement of this practice; and violation of Arts. 26 and 2(1) for advancement of the Khalsa Sikh religion by allowing special status, thereby creating a distinc- tion on the basis of religion, contrary to the aforementioned articles as it is denied to other groups. 15 HRC, Communication No.167/1984, Ominayak Cbief ofLubicon Lake Band v. Canada, views of 26 March 1990, LTN Doc.A/45/40, para. 32.2, where the HRC considered culture to include the traditional activities of hunting, fishing and trapping of the North American Indians. HRC, Communication No.197/1985, Kitok v. Sweden, views of 27 July 1988, UN Doc. Supp. No. 40 (A/43/40), at 221 (1988), para. 9(2), where the HRC recognized the economic activity of reindeer husbandry as an integral part of the cultural life of the Sami. 16 HRC, Communication No. 511/1992, Ilmari Llinsman et a/. v. Finland, views of 26 October 1994, CCPR/52/ D/511/1992, para 9.4. 17 Cf. HRC, Communication No. 671/1995, Jouni E. Lilnsman et al. v. Finland, views of 30 October 1996, CCPR/C/58/D/671/1995; HRC, Communication No. 547/1993, �Ipirana Mahuika et al. v. New Zealand, views of 27 October 2000, CCPR/C/70/D/547/1993; HRC, Communication No.197/1985, Kitok v. Sweden; HRC, Communication No. 167/1984, Ominayak, Chief ofLubicon Lake Band v. Canada; HRC, Communi- cation No. 760/1997,j G-4. Diergaardt (late Captain of the Rehoboth Community) et al v. Namibia, views of 25 July 2000, CCPR/C/69/D/760/1997, and reference to HRC General Comment 23 (50'" session, 1994) on Article 27 (7) where the Committee stresses the importance of participation in the decision-making process: Regarding the enjoyment of cultural rights, 'which may include such traditional activities as fish- ing or hunting ... [enjoyment] may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them' (emphasis added). Although positive obligations are also noted here, the nature and scope are not elaborated upon (bar that they must respect Arts. 2(1) and 26). Cf. P. Thornberry, 'The UN Declaration' in A. Phillips and A. Rosas (eds.), Universal Minority Rights (Turku, 1995), 13, for a discussion on positive obligations and the conceptual problem of group rights.

  • 18 It may be argued here that the limitations of the in camera nature of the procedure hased on only written evidence places the Committee in a weak position and hence the inability here to decide on the Article 27 claim. The HRC (Para. 7(6)) did note that the Sami had been consulted and as a result some courses of action had been altered. 19 Whilst Finland, in 1999, introduced an amendment to the law governing judicial proceedings allowing courts discretion to decide on a case-by-case basis, the complainants did not fall under this new regula- tion. 20 The arguments presented by the claimants in this case also touch on the issue as to how far the state is ohliged under Article 27 to take positive measures to protect the culture of the minority/indigenous com- munity, through, e.g., allocation of land or altering property rights. In the Lubicon Lake Band case the HRC found a violation of Article 27 referring to historical inequities and recent developments (private oil and gas exploitation), although the decision is very brief and does not elaborate exactly what these are. The HRC did not need to develop on the point of positive obligations as Canada had already proposed a remedy to the situation by providing land reserve structures, which it endorsed as being'appropriate'. 21 Whilst Article 1 CCPR concerning self-determination cannot be considered under the Optional Protocol procedure, the Committee took it into account in its interpretation of Article 25. In the Lubicon Lake Band case, para. 32.1., the HRC maintained that Article 1 is not an individual right and thus not subject to indi- vidual petition under the CCPR Opt. Prot.

  • 22 CAT/C, Communication No.161/2000, Hajrizi Dzemajl et al. v. Yugoslavia , views of 21 November 2002, CAT/C/29/D/161/2000. 23 The same applies to individual communications under Article 14 CERD. The CAT/C had 221 registered communications as of 5 December 2002 as compared to 1332 registered by the HRC. The CAT had 132 states parties on 9 December 2002, with acceptance of the Committee's competence under Article 22 totalling 52 states parties. In 2002, the CAT entered into force in Costa Rica, Azerbaijan, Ireland, Mexico, Monaco, Paraguay and Peru. 24 The CAT provides a complement to the CCPR and adds to the customary international law prohibition on torture, by requiring states parties to facilitate the punishment of torture through their municipal law Whilst the CCPR also prohibits torture and cruel, inhuman or degrading treatment or punishment under Article 7, there is no definition of either concept. In fact, the HRC has developed a 'working definition cf. HRC, General Comment 20(4). Whilst the CAT Committee made a move in recognizing other actors in the perpetration of torture within the meaning of the Convention, cf. CAT/C Communication No. 120/1998, Elmi v.llustralia, views of 14 May 1999, CAT/C/22/D/120/1998, CAT expressly limits the per- petrator to those acting for or with acquiescence of the state. The HRC has taken a more flexible approach regarding violations by private persons, cf. General Comment 20(2), underscoring that state obligations include the protection of all against acts of torture and inhuman ... treatment also committed by private individuals. Failure to investigate in such a case also gives rise to liability. In the above case, the recognition of private acts perpetrated by the acquiescence of officials as a violation under the CAT and the need to remedy this suggests a move to an equally flexible approach. The CAT also provides, unlike other UN instruments, for a confidential inquiry mechanism - an instrument that can be operated on receipt by the Committee of'any reliable information"which appears to it to contain well-founded indications that torture is being 'systematically practiced' (Article 20 CAT). States parties can however make an 'opt-out' declaration regarding visiting procedures. The Optional Protocol to the CAT, adopted by the General Assembly during its 57"' plenary session (18 December 2002), which establishes a system of regular independent inspection visits to places of detention, has significant potential to comple- ment the CAT 25 Dzemajl et al. v. Yugoslavia, views of the Committee, para. 9.2.

  • 26 Para. 9.2. with reference to CAT/C, Concluding Observations: Slovakia, (initial report), para. 104; CAT/C, Concluding Observations: Czech Republic (2°° periodic report), para.113; CAT, Concluding Observations: Georgia (second periodic report), para. 81, all -at56/44 (2001). 27 HRC, Concluding Observations: Hungary (4'" periodic report), CCPR/CO/74/HUN, dated 2 April 2002, para. 7 which states that the Committee is 'deeply concerned at the situation of the Roma people who, despite various steps taken by the State Part)' remain disadvantaged in almost all aspects of life covered by the Covenant'; HRC, Concluding Observations: initial report of Moldova, CCPR/CO/75/MDA, dated 25 July 2002, para. CERD/C Concluding Observations in general highlight more varied and detailed issues than those of the HRC. CERD/C, Concluding Observations: Hungary (14�,15�, 16* and 17`" periodic reports), A/57, paras. 67-390 (in particular paras 382-5); CERD/C, Concluding Observations: \loldova (initial, 2"", 3'�and 4'periodic reports), CERD/C/60/CO/9, paras. 17-9; CERD/C, Concluding Obsen·a- tions: Croatia (4'" and 5* periodic reports), CERD/C/60/CO/4, in particular para. 11. In all three, CERD/C particularly recommends states to take into account the Durban Declaration and Programme of Action when implementing the Convention in the domestic legal order (the latter was adopted at the would Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance of 31 August to 8 September 2001 and includes a section on Roma and minorities in general, in particular paras. 39-49 in its programme of action). For further reading on the 'good and worthwhile initiatives [taken bw CERD/C], which expressly extend to minority situations' with particular reference to the early warning mechanisms procedure developed by the Committee since 1993, see Alfredsson, 'Minority Rights: A Summary of Exist- ing Practice', in Phillips (ed.), Universal Minority Rights ..., 33. 28 Thematic discussions provide another means of airing specific issues, also preceded by informal meetings with concerned NGOs, governments and other UN human rights mechanisms The CERD/C thematic discussion on Roma was held from 15 to 16 August 2000 (56`" session) and resulted in CERD/C General Recommendation 27 on Discrimination against Roma, 57`" session. This recommends adoption by states parties of a number of measures of a general and more specific nature.

  • 29 CCPR/C/73/D/779/1997. 30 HRC, Communication No. 431/1990, Sara et al. v. Finland, decision on admissibility 23 March 1994, CCPR/C/50/D/431/1990.'Ihe Committee considered that the state party had shown that Article 27 could be invoked in the relevant domestic proceedings. This should have been used by the authors prior to CCPR Opt. Prot. proceedings. 31 HRC, Communications Nos. 431/1990, Sara et al. v. Finland 197/1985, Kitok v. Sweden;167/1984, Ominayak v. Canada; 511/1992, Ilmari Lilntman v. Finland, and, moreover, the Committee's General Comment 23 (50).

  • 32 The authors also claim violation of Article 14 paras. 1 and 2 due to alleged partiality of the Appeal Court, which prejudged the outcome of the case and violated the principle of equality of arms, in (i) allowing oral hearings while denying an on-site inspection and (ii) taking into account biased material information with- out providing an opportunity to the other party to comment. 33 HRC, Communication No. 511/1992, Ilmari Lansman et al v. Finland.

  • 34 [Regarding the authors' claim under Article 14 of an unfair procedure, the HRC found that the authors had not shown that the decisions (to hold an oral hearing not to inspect the site) had injected unfairness into the proceedings or altered the outcome. Regarding the complaint that equality of arms had been violated, the HRC regarded that it as the fundamental duty of courts to ensure this principle and this involves provid- ing 'full opportunity to each party to challenge the submissions of the other'. The circumstances of the case disclose a violation of this principle. Paras. 7(3) and 7(4).]

  • 35 CCPR/C/76/D/942/2000.

  • 36 HRC, Communication No. 671/1995,jouni Länsman et al. v. Finland, views of 30 October 1996, CCPR/C/ 58/D/671/1995; HRC, Communication No. 511/1992, Ilmari Ldnsman et al v. Finland, views of 26 October 1994, CCPR/C/52/D/511/1992. 37 The authors point out differences between the above two cases where the HRC did not find a violation and theirs - the state interference in those cases was an isolated action and activities were only disturbed in the areas. In the present case the authors contend that the current system ofjustice violates their rights and they are deprived of actual herding areas. 38 The state party contends that the applicant's main argument involves an actio popularis, that Norwegian law and how it has been implemented in itself constitutes a violation of Article 27. This cannot be addressed by the Committee.

  • 39 In 1996, following the Korssjo�ell case the Reindeer Husbandry Act was amended to extend the Sami users' rights with the herding areas by allowing for expropriation of land.

  • 40 CCPR/C/75/D/923/2000.

  • 41 One representative per 1,000 residents in district number one; one per 800 residents in district number two; one per 1,400 residents in district number three; one per 200 residents in district number four; and one per 200 residents in district number five. 42 The State party argues that all other administrative andjudicial avenues used by the author prior to petition- ing the Constitutional Court were inappropriate. 43 In response to the state party's submissions on admissibility, the author rejects both the contention that the Constitutional Court is the sole court to decide upon constitutionality and legality of decisions by regional self governing bodies. He further rejects that a filed complaint should have been immediate subsequent to the adoption of the resolution.

  • 44 [The Committee also noted that the state party had failed to substantiate that such a case could be enter- tained by any administrative or judicial instance other than the Constitutional Court within a statutory period of time.] 45 CCPR/C/75/D/932/2000.

  • 46 Gillot et al. v. France , para. 2.6. referring to Article 218 of the Organic Law of New Caledonia (No.99-209) of 19 March 1999 (reflecting Article 2(2) of the Noumea Accord).

  • 47 The state party continues by arguing that even if the criteria amounted to positive discrimination, this would not be contrary to Article 25, which allows for temporary preferential treatment, as long as it does not have the effect of maintaining different rights for separate racial groups. This is not so in the current case. 48 HRC, Communication No. 500/1992, J. Debreczerey v. Netberlareds, views of 3 April 1995, UN Doc. Supp. No. 40 (A50/40) (1996): HRC, Communication No. 44/1979, Alba Piebaroia ore bebalfofRosario Piebaroia Zapala v. Uruguay; views of 27 March 1981, UN Doc. Supp. No. 40 (A/36/40) at 153 (1981). General Com- ment No. 18 relating to Article 25 (fifty-seventh session, 1996), paras. 4,10,11 and 14.

  • 49 CAT/C/29/D/161/2000.

  • 50 In addition, on 15 August 1996, eight of the Roma filed a law suit requesting that the court order their return to work as they had heen dismissed by their employers for failing to report to work. They argued that a return to work was impossible so soon after the incident as they feared their lives would have been endangered. A retrial was still pending at the time of the communication. 51 The complainants refer to flssenov u Bulgaria,judgment of 28 October 1998, paras. 102,117;Aksoy v. Turkey, judgement of 18 December 1996; Ilydin v. Turkey, judgment of 29 September 1997; X and Yv. The Nether- lands, 8 EHRR 235 (1985), paras. 21-30. 52 In the complainants' additional comments on the merits, they refer to case law under the European Con- vention on Human Rights and Fundamental Freedoms (ECHR) to analyze the scope of application of Arts. 1(1) and 16(1) CAT, noting that Article 3 ECHR also covers infliction of mental suffering.

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