Can the United Nations Human Rights Committee Evolve into an Effective ‘Court’ of Human Rights?

Table of contents

I Introduction – effective Enforcement of Human rights
A Protection of Human Rights on an International Level
B Identifying the Thesis
C Outline of Paper

II Comparing human rights regimes

III The protection system of the UN Human Rights Committee
A The Reporting System
B Inter-State Complaints
C Individual Complaints

IV Protecting human rights in Europe
D Overview – Human Rights in Europe
E The Change of the system of Protection under the European Convention of Human Rights
1 Commission and Court – The old System
2 Permanent Court – The new System

IV Protecting human rights in the Americas
A The Organization of American States and the American Convention of
Human Rights
B Protection System under the American Convention of Human Rights

V Defining criteria For the comparison of effectiveness
1 Effective Enforcement
2 Criteria of Comparison

VI Publicity and Visiblity
A The Importance of Publicity and Visibility in Protecting Human Rights
B European Court of Human Rights
1 Caseload
2 Publicity
C Human Rights Committee
1 Caseloa
2 The Problem of Conflicting Jurisdiction
3 Visibility
D Conclusion – Enhancing the Visibility of the Human Rights Committee

VII Interim Measures
A The Importance of Interim Measures
1 Overview
2 The Problem of Delay
B Interim Measures in the European System
1 Scope of Interim Measures
2 Non-Compliance with Request
3 Is an interim measure binding?
4 Possible Reason for the Decision in ‘Mamatkulov’
C Interim Measures in the American System
1 Scope of Interim Measures
2 Binding Nature of an Interim Measure?
D United Nations Human Rights Committee
1 Scope of Interim Measures
2 Non-Compliance with Request
E Conclusion – Can the Committee Establish a Binding Nature of its Interim Measures?

VIII Fact-finding capacity
A The Importance of Independent Fact-Finding
B Fact-Finding in the European System
1 Intervention of Third Parties during the Written Proceedings
2 Request of evidence
3 In-loco fact-finding procedures
4 Oral proceeding
C Fact-Finding in the American Regime
1 Inter-American Commission
2 Inter-American Court
D Fact-Finding Capacity of the Human Rights Committee
1 Article 5 (1) of the Optional Protocol to the ICCPR
2 Burden of Proof
E Conclusion – Is the Reversal of Burden Of Proof an Adequate Substitute
for an Independent Fact-Finding Capacity?
1 Protection of the Victim
2 Other Possibilities for the Committee to Establish Facts
3 Burden of Proof as Adequate Fact-Finding

IX Enforcement AND follow-up procedures
A Europe
1 Nature of Judgments
2 Supervisory Role of the Committee of Ministers
B Human Rights Committee
1 The nature of the views
2 How to Push Compliance with Final Decisions
C Enforcement and Follow-up – Conclusion

X Conclusion – Can the united nations human rights committee evolve into an effective global court of human rights?

Bibliography

Abstract

The United Nations Human Rights Committee, established under the International Covenant of Civil and Political Rights, has the power to examine individual complaints on alleged human rights violations. It is noted, however, that the Committee lacks important powers to be as effective as the regional human rights courts in Europe and the Americas. The paper assesses the effectiveness of the Committee by means of a comparative analysis. The comparison takes place within four criteria that are essential in an assessment of a court’s effectiveness: the visibility of the court in the public domain, the adoption of interim measures to hinder the aggravation of the violation, the fact-finding capacity of the court, and the enforcement of the final decisions and the follow-ups thereto. The paper argues that despite the statutory deficiencies of the Covenant and the Optional Protocol, the Committee can be as effective as the regional courts even without an amendment to these instruments. This would be possible if the Committee successfully argues for a binding nature of its interim measures; further, it can overcome the lack of its independent fact-finding capacity through a – thoroughly argued – reversal of burden of proof. If it could also augment its own visibility and the publicity of its decisions, the Committee will finally enhance states’ compliance with its final, non-legally binding ‘views’.

The Committee will thus be able to become as effective as the regional courts of human rights, and could in fact evolve into an effective ‘court’ of human rights on a global level.

Word length

The text of this paper (excluding abstract, table of contents, footnotes, bibliography and appendices) comprises approximately 15,500 words.

I Introduction – effective Enforcement of Human rights

A Protection of Human Rights on an International Level

One effective means of ensuring respect for human rights is to submit queries or alleged violations to a judicial body. This is, however, difficult to enforce since the international community is generally cautious about any kind of judicial settlement.^[1]

Human rights protection on global level is above all a conglomeration of monitoring mechanisms. This monitoring was made acceptable to states since it had a relatively small impact on state sovereignty. There was no binding force of the final assessment of these monitoring bodies, they were often composed of state representatives, and the sessions were held in closed meetings. These monitoring bodies are weaker than any other form of adjudication.^[2] It shows that states are ready to create legally binding norms in the form of a treaty but they are reluctant to install supervisory bodies that could scrutinize the state’s behaviour; any international judicial decision is seen to infringe on the principle of state sovereignty.^[3]

However, human rights protection mechanisms did not only evolve in the global area but also on regional level through the European Convention for the Protection of Human Rights and Fundamental Freedoms,^[4] the American Convention on Human Rights,^[5] and the African Charter on Human and Peoples’ Rights.^[6] The European Court of Human Rights, and the Inter-American Commission and Court, have significant power to guarantee the effective protection of the rights enshrined in the respective conventions. Moreover, they have developed successful strategies to render their judgments nearly as effective as national courts’ decisions.

Typically for the United Nations human rights system, the two Covenants on Human Rights of 1966 accentuate the examination of periodic reports that are submitted at predetermined intervals by the States to the United Nations Human Rights Committee (the Committee).^[7] However, the International Covenant of Civil and Political Rights (ICCPR) implements supervision through contentious procedure in form of an inter-state complaint.^[8] Additionally, the First Optional Protocol to this Covenant (Optional Protocol) allows an individual to request an examination of an alleged violation of the Covenant.^[9]

Nevertheless, the Committee is not vested with much power and is therefore known as being “in no sense a court of law”^[10] which could not match the effectiveness of the European and Inter-American Court.

B Identifying the Thesis

The Committee lacks most of the powers of the regional human rights courts. It has neither an independent fact-finding capacity nor the opportunity to initiate oral hearings or on-site visits. Moreover, there is no provision empowering the Committee to issue interim measures and no enforcement procedure is provided for in the Covenant or in the Optional Protocol. Finally, it is noted that its final ‘views’ are not binding on state parties. Thus, both the proceeding and the outcome before the Committee differ significantly from a court’s proceeding.

Yet, the moral weight of the Committee’s final decisions is undeniable,^[11] and “of all UN human rights bodies, the Human Rights Committee has come closest to acting as an international court of human rights.”^[12] Furthermore it was acknowledged that “[it] has striven to be seen to be acting in a way as nearly as possible similar to that in which a court of law acts”.^[13]

The thesis of the paper is that despite all the deficiencies, the Committee could be as effective as the regional courts of human rights in Europe and America, and could thus evolve into an effective ‘Global Court of Human Rights’.

A means of proving the thesis is a comparative analysis of the regional and the global human rights protection system with regard to specific criteria that are essential in an assessment of a court’s effectiveness. These criteria will be specified in the paper.

C Outline of Paper

In order to frame the thesis, the paper acknowledges the issue of to what extent human rights regimes are comparable. It then introduces the human rights protection systems on European, American and global level and identifies the criteria against which the effectiveness of the mechanisms will be assessed. The core part of the paper studies the effectiveness of the European system, and, where appropriate, the American system, focussing on four criteria specified below. Within each criteria, the paper analyses whether the supervisory body on global level matches the effectiveness of the European and/or American Courts, and if not, how it could do so in the future.

II Comparing human rights regimes

When analysing the effectiveness of regional human rights systems with the global machinery of the United Nations, it is necessary to identify the aspects of both machineries that are comparable.

Three supervisory procedures are commonly known in the enforcement of human rights, both in the UN machinery and in the regional human rights schemes: the examination of periodic state reports, the procedure of inter-state complaints, and the procedure operating at the request of individuals or groups of individuals.^[14]

Regional human rights conventions concentrate on inter-state and individual complaints rather than on a report scheme.^[15] The inter-state complaint procedure was, however, barely used both in the system under the ICCPR and in the various regional regimes. No member state of the American Convention has yet filed an inter-state complaint, nor has a member under the ICCPR. Even though 17 inter-states complaints were declared admissible in Europe, compared to over 3.400 delivered judgments, they represent only a tiny fraction of the total caseload.^[16] Therefore, the inter-state complaint procedure does not seem to be an effective means in the enforcement of human rights.^[17]

Thus, the only possible comparison is in the field of individual complaint procedures. This, however, should not create a problem to elaborate the thesis of the paper because “[t]he real test of the effectiveness of a system of international protection for human rights is whether it provides an international remedy for the individual whose rights are violated.”^[18]

Human rights conventions aim at protecting the individual from the state and if the opportunity of individual petition does not exist, the goal of human rights instruments, that is the effective protection of the rights guaranteed for individuals vis-à-vis his or her state, is seriously undermined. Therefore, since the state reports are merely concerned with the general implementation of the instrument in the state Party and the inter-state complaints procedure is not likely to be often invoked in the future, the effective protection of the protected rights can best be assessed by whether or not individual communication procedures provide an effective remedy for those individuals.

This paper will hence analyse the effectiveness of the individual complaint procedure established under the Optional Protocol to the ICCPR and the mechanism of the European Convention on Human Rights. Additionally, where appropriate, the Inter-American protection regime will be consulted.

III The protection system of the UN Human Rights Committee

The Covenant and the Optional Protocol provide for three distinct procedures and each system is implemented and supervised by the Committee.

A The Reporting System

Even though the reporting system does not take part in the comparison, it is worth taking notice of this procedure, since it has been the Committee’s primary function to date. All States Parties are affected by this mechanism.^[19] They have to regularly submit reports for consideration by the Committee on the measures they have taken to implement the Covenant.^[20] The Committee studies these reports and issues “general comments” to the state concerned and to ECOSOC, thus implementing its function of promotion and co-operation.^[21]

B Inter-State Complaints

The Inter-state dispute procedure was initially planned to be the main system of implementation of the rights of the Covenant.^[22] However, in the adopted Covenant inter-state complaints were made optional.^[23]

To date, 48 States have accepted the competence of the Committee to receive and consider such communications from State Parties.^[24] An inter-state communication is only possible if submitted by a State Party which has made a declaration recognising in regard to itself the competence of the Committee.^[25]

As mentioned above, this system has never yet been invoked. One reason might be that it seems difficult to imagine that a government will come to the help of citizens of another country and, in doing so, jeopardising its relations with the government.^[26] Another reason is that the procedure can be terminated by either of the State Parties before a conciliation commission has been appointed.^[27] Moreover, States that have declared to accept this procedure tend to have good human rights records anyway.^[28]

C Individual Complaints

No private complaint system to a court or other quasi-judicial entity could be made obligatory or even optional in the Covenant itself.^[29] Under the Optional Protocol to the ICCPR,^[30] however, the Committee is able to consider complaints from individuals, “claiming to be victims of violations” by a State Party to the Protocol “of any of the rights set forth in the Covenant”.^[31] As of 2.5.2003, of the 149 States that have acceded the Covenant, 104 have accepted the individual complaints procedure under the Optional Protocol.^[32]

Unlike other communications in the field of human rights on global level,^[33] the violation must not be of systemic pattern, even one single violation against one person can lead to an admissible communication. The individual complaint procedure of the Optional Protocol is considered to be “not very elaborate”.^[34] And in fact, compared to a judicial process on a national level, the procedure of the Optional Protocol is rather simple: if the communication is considered admissible,^[35] the Committee informs the concerned State party of the alleged violation,^[36] and the State has six months to submit a written explanation to the Committee.^[37] The communications are then dealt with in closed meetings.^[38] Ultimately, the decision of the Committee is forwarded to the State Party and the complainant in the form of “views”.^[39]

IV Protecting human rights in Europe

D Overview – Human Rights in Europe

Many European institutions are engaged in protecting human rights; major players are the European Union (EU), the Organization of Security and Cooperation in Europe (OSCE) and the Council of Europe.^[40] It is the latter however, which had the main influence on the emerging human rights protection system in Europe. Under the auspices of the Council of Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms was created. This instrument implemented the first international complaints procedure to provide remedy for an individual whose rights had been infringed by a sovereign state.^[41]

The European Convention’s protection mechanism was radically overhauled through the coming into force of Protocol 11 in 1998.

E The Change of the system of Protection under the European Convention of Human Rights

1 Commission and Court – The old System

At the outset, the European Convention created two organs “to ensure the observance” of the guaranteed rights – the European Court of Human Rights and the European Commission of Human Rights (hereinafter European Court and Commission).^[42] The complaints of individuals were brought to the Commission and it decided whether an application met the admissibility criteria. If declared admissible, the Commission started to investigate the merits of the case and issued not binding opinions of whether it believed that there were a violation of the Charter or not. The report containing the opinion was sent to the States and individuals concerned, but was not made public. Additionally the report of the Commission was delivered to the Committee of Minister, the political organ of the Council of Europe. The application could then be transferred to the European Court of Human Rights, either by the Commission, or the State whose national has brought the complaint to the Commission, but not by the individual him- or herself.^[43] If the case had not been referred to the Court, it was the Committee of Ministers of the Council of Europe^[44] that gave a final and binding decision on the merits; it became however practice that the Committee of Ministers endorsed the report of the Commission without further investigation of the merits. Moreover the Committee of Ministers supervised the execution of its own and the court’s binding decisions.

2 Permanent Court – The new System

Protocol 11^[45] replaced this dual system of Commission and Court with a permanent Court of Human Rights, which is now responsible for both the admissibility and the merits of the case.^[46] Under the new regime, all States Parties must recognize the compulsory jurisdiction of the new Court. The final judgments are binding, as before the amendment.^[47] The admissibility criteria have not changed. Yet, Protocol 11 amended one of the central weaknesses of the former system since individuals could then not refer their case to the Court; they were rather dependent on the Commission to do so. Yet, the new system permits individuals to have full standing before the Court. The role of the Committee of Ministers has also been changed with Protocol 11. It no longer examines the merits of the cases not referred to the Court,^[48] since every application is dealt with directly by the new Court; the Committee of Ministers can now concentrate on supervising the execution of the Court’s judgments.^[49]

Apart from individual complaints, the European Court has the power to receive inter-state complaints,^[50] but the above-mentioned 17 complaints show a lack of interest from the States Parties to use this procedure. The focus of the Court’s jurisdiction is thus clearly on the procedure initiated by individuals.

[...]

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^[1] Antonio Cassese International Law (Oxford University Press, New York, 2001) 363.

^[2] Antonio Cassese, above, 363.

^[3] See on the principle of state sovereignty in relation to international monitoring Rein A Myullerson “Monitoring Compliance with International Human Rights Standards – Experience of the UN Human Rights Committee” [1991-1992] Can Hum Rts YB 105.

^[4] European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4.11.1950, entered into force 3.9.1953, 213 UNTS 221, ETS No 5.

^[5] American Convention on Human Rights (Pact of San José), signed 22.11.1969, entered into force 18.7.1978, O.A.S. Off Rec OEA/Ser.L/V/11.23, doc 21, rev 6 (1979), reprinted in (1970) 9 ILM 673.

^[6] African Charter on Human and Peoples’ Rights (Banjul Charter), adopted 27.6.1981, entered into force 21.10.1986, O.A.U. Doc CAB/LEG/67/3 Rev 5, reprinted in (1982) 21 ILM 58.

^[7] International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, entered into force 3 January 1976, 993 UNTS 3 (ICESCR) art 16 and International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, 999 UNTS 171 (ICCPR), art 40.

^[8] International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR), art 41.

^[9] Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16.12.1966, entered into force 23.3.1976, 999 UNTS 171.

^[10] PR Ghandi “The Human Rights Committee and the Right of Individual Communication” (1986) 57 Brit YB Int’l L 201, 249.

^[11] Manfred Nowak UN Covenant on Civil and Political Rights – CCPR Commentary (Engel, Kehl, 1993) 34.

^[12] Jan Märtenson “United Nations Workshop on the Optional Protocol to the ICCPR – Concluding Remarks” [1991-1992] Can Hum Rts YB 211, 214.

^[13] Ghandi, above, 249.

^[14] Antonio Cassese International Law (Oxford University Press, New York, 2001) 363.

^[15] However, the Inter-American Commission has the power to receive and discuss reports. In Europe regular reporting obligations are mainly known under the European Social Charter but not in the European Convention on Human Rights.

^[16] See Registrar of the European Court of Human Rights “Survey of Activities 2002” 31 available at European Court of Human Rights Website <http://www.echr.coe.int/Eng/InfoNotesAndSurveys.htm> (last accessed 10.7.2003).

^[17] See Rudolf Bernhardt “The International Enforcement of Human Rights – General Report” in Rudolf Bernhardt and John Anthony Jolowicz (eds) International Enforcement of Human Rights (Springer Verlag, Berlin, 1987) 143, 149.

^[18] AH Robertson “The Implementation System: International Measures” in Louis Henkin (ed) The International Bill of Rights – The Covenant on Civil and Political Rights (Columbia University Press, New York, 1981) 332, 357.

^[19] International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR) art 40.

^[20] International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR) art 40 (1).

^[21] International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR) art 40 (4).

^[22] Torkel Opsahl “The Human Rights Committee” in Philip Alston (ed) The United Nations and Human Rights – A Critical Appraisal (Clarendon Press, Oxford, 1992) 419.

^[23] International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR) art 41.

^[24] See United Nations Treaty Collection Declarations and Reservations to the ICCPR (5.2.2002) online available at <http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm> (last accessed 1.7.2003).

^[25] See International Covenant on Civil and Political Rights 999 UNTS 171 (ICCPR), art 41 (1) 2.

^[26] Rudolf Bernhardt “The International Enforcement of Human Rights – General Report” in Rudolf Bernhardt and John Anthony Jolowicz (eds) International Enforcement of Human Rights (Springer Verlag, Berlin, 1987) 143, 149.

^[27] PR Ghandhi The Human Rights Committee and the Right of Individual Communication – Law and Practice (Ashgate Publishing, Vermont, USA, 1998) 27.

^[28] Louis Henkin “The International Bill of Rights: The Universal Declaration and the Covenants” in Rudolf Bernhardt and John Anthony Jolowicz (eds) International Enforcement of Human Rights (Springer Verlag, Berlin, 1987) 1, 14.

^[29] See for more background of the drafting history of the Optional Protocol P.R. Ghandhi The Human Rights Committee and the Right of Individual Communication – Law and Practice (Ashgate Publishing, Vermont, USA, 1998) 8-12; see also Torkel Opsahl “The Human Rights Committee” in Philip Alston (ed) The United Nations and Human Rights – A Critical Appraisal (Clarendon Press, Oxford, 1992) 421.

^[30] First Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16.12.1966, entered into force 23.3.1976, 999 UNTS 171.

^[31] First Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16.12.1966, entered into force 23.3.1976, 999 UNTS 171, preamble and art 1.

^[32] See Office of the High Commissioner of Human Rights Status of Ratifications of the Principal International Human Rights Treaties (2.5.2003) p 9, online available at un.org <http://www.unhchr.ch/pdf/report.pdf> (last accessed 1.7.2003).

^[33] Such as the procedures 1235 and 1503 of the UN Commission on HR established by ECOSOC.

^[34] Torkel Opsahl “The Human Rights Committee” in Philip Alston (ed) The United Nations and Human Rights – A Critical Appraisal (Clarendon Press, Oxford, 1992) 421.

^[35] First Optional Protocol to the International Covenant on Civil and Political Rights, art 3 and art 5 (2).

^[36] First Optional Protocol to the International Covenant on Civil and Political Rights, art 4 (1).

^[37] First Optional Protocol to the International Covenant on Civil and Political Rights, art 4 (2).

^[38] First Optional Protocol to the International Covenant on Civil and Political Rights, art 5 (3).

^[39] First Optional Protocol to the International Covenant on Civil and Political Rights, art 5 (4).

^[40] See JG Merrills, AH Robertson Human Rights in Europe – A Study of the European Convention on Human Rights (4 ed, Manchester University Press, Manchester, 2001) 325.

^[41] See Merrills, Robertson, above, 9.

^[42] Former European Convention on Human Rights, art 19, before entering into force of Protocol 11.

^[43] Unless the State was party to Protocol No 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 6, 1990, entered into force 10.6.1996, ETS No 140, which gave the individual a standing to refer the application to a three-judge panel of the court; 24 States had ratified this Protocol.

^[44] The Committee of Ministers is a political and decision-making body of the Council of Europe composed of the Foreign Affairs Ministers of the member states.

^[45] Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11.5.1994 entered into force 1.11.1998, ETS No 155.

^[46] European Convention on Human Rights, art 29.

^[47] See heading of European Convention on Human Rights, art 46 and European Convention on Human Rights, art 46 (1) which holds “The High Contracting Parties undertake to abide by the final judgment of the Court in any case where they are parties.”

^[48] The other task was to elect the members of the European Commission of Human Rights, which now does not exist anymore.

^[49] European Convention on Human Rights, art 46 (2).

^[50] European Convention on Human Rights, art 33.