Martin Scheinin, Professor of Constitutional and International Law, Åbo Akademi University (Finland)
This brief article gives an account of the work of the Human Rights Committee, the treaty body established under the International Covenant on Civil and Political Rights (below: ICCPR or the Covenant). All observations and comments are of a personal character and are based on the author's experience of close to three years as a member of the Committee.
All five Nordic countries are States parties to the Covenant and to its (first) Optional Protocol that establishes an international complaints procedure. Despite this fact judges, lawyers and the general public appear to be largely unaware of the existence of the Covenant and the Human Rights Committee, as well as of other UN human rights treaties and their monitoring mechanisms.
In Finland and Norway the Covenant is part of domestic law through formal incorporation. In the other Nordic countries the relatively recent incorporation of the European Convention on Human Rights has not been extended to cover other human rights treaties. As a consequence, the domestic status of the Covenant in Denmark, Iceland and Sweden corresponds to the traditional version of dualism. This situation, however, does not form an obstacle to the creative use of the Covenant provisions before courts or authorities. Domestic law, or European Community law, or other international treaties can be interpreted in the light of the Covenant even in the absence of formal incorporation.
According to article 28 of the Covenant, the Human Rights Committee consists of 18 independent experts, acting in their individual capacity. Every two years a meeting of the States parties to the Covenant is convened for the purpose of electing 9 members. Only States parties to the Covenant have the right to nominate candidates and they can nominate only their own nationals. In order to be elected, a candidate must receive a majority of votes in the meeting of States parties. Although for instance non-governmental organisations do not have a formal role in the nomination and election process their contribution may actually be quite important in either informing Governments of their opinion that a certain candidate might receive broad support if nominated, or in informing Governments of their view which ones of the nominees deserve broad support.
Over the years, two trends in the composition of the Committee can be noted:
a) Towards growing independence. When previously the Committee was composed of an academic (professors), a judicial (judges) and a diplomatic (ambassadeurs) component, the last-mentioned category has become smaller and smaller. This is in line with other developments in the work of the Committee, especially the adoption of internal Guidelines to Members in 1997. These Guidelines spell out in clear terms that a member should not participate in any way in the consideration of reports or complaints from his or her own country.
b) Towards a more and more “Western” Committee. Although article 31 (2) of the Covenant requires that “consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems”, there is nothing in the system of elections to the Committee that would secure that members actually come from all parts of the world. Partly due to the importance felt by many Western Governments of this particular treaty body, combined with uneven distribution of personnel resources needed in campaigning in support of a candidate, the proportion of members from developed Western countries has become greater in recent years. Currently, 8 out of the 18 members are nationals of “Western” countries (Australia, Canada, Finland, France, Germany, Italy, United Kingdom, USA), and three additional members from countries that are “Western” within their own region (Israel, Japan and Poland). Neither one of the two African members (from Mauritius and Tunis) come from Sub-Saharan Africa.
A third, more constant, characterising feature of the composition of the Human Rights Committee is that it is almost exclusively composed of lawyers. Both of the main functions of the Committee (consideration of State reports and of individual complaints, see next section) are oriented towards producing legal interpretations of the provisions of the Covenant. Legal education is of course a useful background for this type of work, but one may ask whether other fields of expertise, for instance economics, social sciences and medicine, would be needed within the Committee in order to deal properly with, e.g., positive state obligations stemming from the Covenant or with torture cases. The experience of the work of the UN Committee Against Torture and its counterpart under the European Convention for Prevention of Torture, or the UN Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights tells that there is added value in having other fields of expertise besides law represented within a treaty monitoring body. Nevertheless, from an insider's perspective it is quite obvious that practically all interesting debates within the Human Rights Committee are currently of a legal nature.
Currently, four out of 18 members are women. This is a low number by Nordic Standards.
The two main functions of the Committee relate to the consideration of State reports under article 40 of the Covenant and of individual communications (complaints) under the (first) Optional Protocol to the Covenant. Other functions include the (so far never utilised) procedure for Inter-State complaints under article 41 of the Covenant and the adoption of General Comments.
The reporting procedure (article 40) is mandatory for all States parties which are to submit an initial report within one year after the entry into force of the Covenant and thereafter periodic reports “whenever the Committee so requests”. In 1998, the Human Rights Committee abolished its previous rule of periodicity of five years and took an approach under which the due date for the next report by a particular State is decided as a part of the Concluding Observations related to the previous report. The new approach allows for flexibility, as the Committee can take into account, for instance, a possible delay in the submission of a report or the nature of its concerns, in deciding when the next report will be due. In general, the Committee sets the due date at four years after the consideration of a report which in practice comes close to the earlier periodicity of five years. In some cases, however, the Committee has requested the next report as soon as two years after consideration, for instance if the report was clearly incomplete.
The institution of Concluding Observations was, in 1992, a major step forward in the development of an efficient monitoring mechanism. During the so-called cold war, particularly Eastern European members had objected to any collective assessment of a country's compliance with the Covenant as an outcome of the reporting procedure. Their legal argument was that article 40 does not mention the possibility of such State-specific assessment but refers to “general comments” (para. 4) as the end result of the reporting procedure. Until the early 1990s, the practice of the Committee was to end the consideration of a State report by a round of concluding comments by the individual members of the Committee, whose concerns were then duly reflected in the Annual Report of the Committee. Since 1992 the Committee has issued a separate document, Concluding Observations, as a result of its consideration of a specific report. Over the years the concluding observations have become more elaborate and currently they represent the Committee's general assessment of a State's compliance with the provisions of the Covenant. They are a combination of legal interpretations of the Covenant and more policy-oriented recommendations what should be done to further implement the Covenant. The expression that a certain law or practice is “incompatible” with the Covenant amounts to an assessment that a State is not complying with its legal obligations. If the Committee expresses “concern” or “serious concern”, this means that it is quite possible that individuals' rights under the Covenant are being violated but no final assessment is made on the abstract level.
Another line of development in the reporting process is the growing role of non-governmental organisations. Although NGOs do not address the Committee in its formal sessions, they are invited to the pre-sessional working group, they provide written counter-reports and other submissions to all Committee members and may brief the members in unofficial lunch hour meetings. The actual meetings in which a report is considered are open to the public and NGOs can therefore directly monitor what answers and promises are given by the Government delegation.
In its current form, the reporting procedure under article 40 has two strong sides when compared, for instance, to a human rights treaty where the international monitoring mechanism is based merely on complaints.
a) Firstly, the system of periodic reports allows for a continuous process that encourages a national dialogue between governmental and civil society actors. The Concluding Observations are at the same time a response to the concerns raised by national and international NGOs and a natural starting-point for a domestic discussion on the implementation of the Committee's recommendations and for the preparation of the next periodic report.
b) Secondly, the reporting process is of a systematic and comprehensive character, allowing proper attention to positive state obligations and to the human rights of such vulnerable groups who rarely send complaints to international bodies or whose concerns are not easy to formulate as complaints on individual human rights violations.
A further reform in relation to the reporting procedure will be fully effective from the beginning of the year 2000. In 1999 the Committee adopted new Consolidated Guidelines for government reports (see Annual Report 1999). The reform means a shift to focussed reporting on the implementation of the Committee's Concluding Observations on the previous report of the country in question and on any new developments nationally considered important, thus alleviating the reporting burden felt by States. The Committee will from now on issue its Lists of Issues (which form the first set of questions to be answered in the oral consideration of a report) one session ahead of consideration, thus enabling more thorough preparation.
In its 63rd session (July 1998), which coincided with the worst stage of the resource crisis (see below), the Committee dealt with reports by, inter alia, Algeria and Israel. Both considerations received wide interest, both in terms of attendance by NGOs and observer governments in the conference room and of media attention. In the case of Algeria, the consideration of the report was of more general importance, as very few other UN bodies or international mechanisms were able to deal with the human rights crisis. Although the Government delegation denied State responsibility for disappearances, arbitrary killings, torture etc., the Committee was able to deal with these issues in such a detailed way during the two days of discussion that it could legitimately come in its concluding observations (CCPR/C/79/Add.95) to findings and recommendations in many of the burning issues. Hence, it could serve as a non-selective and treaty-based fact-finding mechanism in relation to other (including political) processes. This is an indication that treaty bodies may play a role even in relation to very serious human rights situations, although normally it is a precondition for positive outcomes from the reporting procedure that there is at least a basic degree of commitment by the State party. Some other recent cases of very serious human rights situations (Iraq, 61st session, and Libya, 64th session) have produced less promising results than the case of Algeria.
Also the experience of the initial report by Israel was a positive one, largely due to the active involvement of NGOs and the willingness of the Government delegation to give detailed answers even when they denied the existence of obligations under the Covenant. In its concluding observations (CCPR/C/79/Add.93) the Committee was quite explicit as to the extraterritorial application of the Covenant: “The Committee is deeply concerned that Israel continues to deny its responsibility to fully apply the Covenant in the occupied territories. In this regard, the Committee points to the long-standing presence of Israel in these territories, Israel's ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein. ... The Committee is therefore of the view that, under the circumstances, the Covenant must be held applicable to the occupied territories and those areas of southern Lebanon and West Bekaa where Israel exercises effective control. The Committee requests the State party to include in its second periodic report all information relevant to the application of the Covenant in territories which it occupies.” (para. 10)
An interesting development as to the reporting procedure is that in the cases of Canada (65th session) and Mexico (66th session) the Committee has approached the issue of indigenous peoples' rights under article 1 of the Covenant (the right of all peoples to self-determination), not only under article 27 (persons belonging to minorities). A background to this development is that the Committee has declared inadmissible communications based on article 1 of the Covenant, as the Optional Protocol procedure enables complaints by individuals only, and an individual cannot claim to be a victim of a violation of a people's right to self-determination (e.g. Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication no. 167/1984). As to the substance of concluding observations, women's rights and indigenous peoples/minorities receive more systematic attention by the Committee than earlier.
The second main function of the Committee is to deal with individual communications from the 95 countries that are States parties to the (first) Optional Protocol to the Covenant. The annual number of communications is around 70 which is a very small figure when compared to the flow of incoming complaints under the European Convention on Human Rights or the so-called 1503 procedure under the UN Commission on Human Rights. The other side of the coin is that the success rate of complaints under the Optional Protocol, measured by the proportion of either admissible cases or cases in which a violation is found is many times higher than under the European Convention.
The difficult resource situation of the Committee sets limits to the development of an efficient international complaint procedure. To date, the Committee has not opened a possibility for oral hearings and is generally very reluctant in seeking additional information from the parties even when the facts of the case are not clear. The Committee bases its decisions on the written information submitted by the individual and the State party. No independent fact-finding is done, and if there is a Committee member who is a national of the country concerned, he or she does not participate in dealing with a case.
A major development in the communications procedure was the merger of adimissibility and merits when dealing with individual communications (1997). The reform means in practice that only exceptionally the full Committee will discuss an individual case more than once. As the Committee meets for only nine weeks a year and is limited by the practical design of UN conference and interpretation facilities to 30 plenary hours per week, the meeting time is a scarce resource and must be made best efficient use of.
The decisions made at the end of the consideration of a complaint are of a quasi-judicial character. In the Optional Protocol they are called “Views”, and there is no provision to the effect that they would, as such, be legally binding on the State in question. It would, however, be erroneous to characterise the Views as mere “recommendations”, as the Covenant imposes legally binding obligations on each State party, including the right to an effective remedy in cases where the Covenant has been violated (article 2, paragraph 3 of the Covenant) and as the Committee is an independent expert body established by the Covenant to interpret its provisions. In its Views, the Committee states whether there has been a violation of the Covenant and, if so, what kind of a remedy is appropriate. The juridical authority of these findings does not stem from the position given to the Committee in the Optional Protocol but from the binding nature of the Covenant itself.
Compared to the well-known and highly appreciated international complaint procedure under the European Convention on Human Rights, the Optional Protocol procedure is under-resourced and less judicial. Nevertheless, the admissibility conditions are somewhat less strict and at least occasionally the Committee is able to deal with a case rather expeditiously. Due to substantive differences between the ECHR and the Covenant, the Optional Protocol procedure is rather attractive for instance in cases related to non-discrimination (article 26), minority rights (article 27) and political participation (article 25). In these areas the scope of the Covenant is broader than that of the ECHR. The classic social security cases against the Netherlands (e.g., Zwaan – de Vries v. the Netherlands, Communication 182/1984) or the series of cases related to economic life typical for indigenous peoples (e.g., Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication no. 167/1984, and I. Länsman et al. v. Finland, Communication no. 511/1992) indicate the potentials of the Covenant.
A rather recent case related to the earlier cases on indigenous peoples' concerns but at the same time demonstrating the interdependence between different provisions of the Covenant is the case of Hopu and Bessert v. France (Communication no. 549/1993). The case related to the construction of a hotel on a traditional burial ground and at a fishing lagoon of indigenous Polynesians. There were three different positions within the Committee but the majority view was that a declaration by France to article 27 (minorities) operates as a reservation also in relation to French overseas territories. Nevertheless, the construction of the hotel on traditional burial grounds amounted to a violation of articles 17 and 23 (privacy and family life).
In 1997-1999, the Committee has experienced a very difficult period of time as to its general conditions of work. For parts of 1998 the Committee was without a secretary which caused serious problems in communication between members and with governments, non-governmental organisations and the Office of the United Nations High Commissioner for Human Rights. Incoming reports were (and still are) subject to serious delays as to when they are actually issued as UN documents and available to the Committee. Additional material (e.g. updates to reports) are maybe not at all translated and issued. The number of professional staff members working with individual communications (complaints) under the Optional Protocol has constantly been going down and is currently one person working almost full time, another staff member working de facto mostly with administrative matters, and a Norwegian temporary Junior Professional Officer who will leave in November 1999.
The number of States parties to the Covenant (now 145) and to the Optional Protocol (now 95) has constantly been growing. The consequences are (a) that there is, on paper, a growing backlog of State party reports, although at the same time there is an insufficient number of reports translated and issued as UN documents so that the Committee could plan its work even two sessions ahead; and (b) there is a growing backlog of both pending communications and, even more serious, unattended correspondence that should be registered and considered as communications. An alarming dimension of the latter problem relates to communications in Russian or other Slavic languages, which for long periods of time have just been piling up.
Further dimensions of the resource crisis have been the lack of support staff and facilities during the New York (March) sessions of the Committee and shortcomings in inviting, receiving and distributing NGO submissions related to reports under consideration. The latter dimension has largely been due to the absence of a “focal point” within the Secretariat of the Committee or generally the High Commissioner's office that would collect, store and organize such material.
During the July 1998 session, the Committee on several occasions addressed the High Commissioner in person to draw her attention to the seriousness of the resource crisis. Since then, some improvements have been made in the internal functioning of the Office. No improvements in actual resource allocation have been achieved. During the 66th session (July 1999) the Committee discussed a Draft Plan of Action jointly for the Human Rights Committee, the Committee for the Elimination of Racial Discrimination and the Committee Against Torture. Whereas satisfaction was expressed for the High Commissioner taking action, concern was felt over the absence of proper prioritizing of needs and the starting-point of the Plan, namely trying to attract external funding for purposes that under article 36 of the Covenant clearly should be funded from the regular budget.
One dimension of the resource crisis is the fact that the need for simultaneous interpretation and documents in three languages (English, French and Spanish) is, due to the present composition of the Committee, more genuine than until the end of 1998. Currently the Committee cannot work, even in urgent cases (e.g. concluding observations on State party reports) on the basis of English-only drafts which was done as an emergency measure at some earlier occasions.
In relation to the dissolution of the former Soviet Union and former Yugoslavia, the Committee took the position that once a population of a territory comes, through the ratification of or accession to the Covenant by a State, under the protection of the Covenant, a change of the authority exercising sovereignty does not deprive the inhabitants of the territory this protection. Gradually all the new States established within the areas in question except one (Kazakhstan) have formalised their status as States parties by depositing an instrument of succession or accession. Another dimension of this continuity-of-obligations approach by the Committee relates to the case of North Korea and General Comment no. 26, explained below.
A further dimension is related to Hong Kong and Macau, previously subject to reporting by a State party (respectively, United Kingdom or Portugal) but later becoming under the sovereignty of a non-State party (the People's Republic of China). When dealing with reports by the United Kingdom and Portugal, the Committee has in its Concluding Observations expressed that the change of the sovereign does not terminate the reporting, without however specifying who will be expected to submit a report. This position will be put to test in the 67th session (October 1999), when a report on Hong Kong, prepared by the regional administration and submitted by the People's Republic of China will be considered by the Committee. This exercise will be a test case not only on the consideration of a report by a non-State party but also for China itself in the preparations of the ratification of the Covenant.
In 1997, the People's Democratic Republic of Korea informed the UN Secretary-General that it would denounce the ICCPR. In its very next session, the Human Rights Committee adopted General Comment no. 26 (61) on the continuity of obligations under the Covenant. According to the Committee, States cannot denounce the Covenant or withdraw from it. This conclusion is based on, inter alia, the absence of a withdrawal clause in the two Covenants of 1966, the principles expressed in the Vienna Convention on the Law of Treaties and the nature of the ICCPR as an element in the “International Bill of Human Rights”, constituting of the two Covenants and the Universal Declaration of 1948. North Korea participated, in September 1998, in a meeting of States parties to the ICCPR, thus accepting being a party to the Covenant. No report has, however, been received from this State party.
There is an ongoing exchange of letters between the Committee and the International Law Commission, as to the regime related to reservations under such human rights treaties that establish a treaty body. The position of the Committee was expressed in its General Comment No. 24 (52), adopted in 1994. In short, the position of the Committee is that a treaty body established to monitor compliance by States parties with the treaty must be competent to determine whether reservations by States are compatible with the object and purpose of the Covenant and if not, what is the legal effect of an unacceptable reservation. The position of the ILC is based on the provisions of the Vienna Convention on the Law of Treaties about the role of other States parties and their objections to reservations. This approach does not seem to give proper attention to the special characteristics of multilateral human rights treaties under which individuals are the beneficiaries and an independent expert body has been established to monitor compliance with the treaty. The Annual Report of 1999 by the Committee includes its latest response to the ILC. Also the Sub-Commission on Promotion and Protection of Human Rights has undertaken a study in the issue of reservations.
A serious challenge to the work of the Committee and the human rights system in general has been caused by Jamaica and some other States in the Caribbean region. Contrary to the European Court of Human Rights (see, the Soering case) and many domestic courts the Human Rights Committee has never taken the position that prolonged stay on death row would, per se, constitute inhuman or degrading treatment in the absence of further qualifying circumstances. Nevertheless, the ruling by the Judicial Committee of the Privy Council in the case of Pratt and Morgan in 1994 created a situation in which Jamaica was under its constitutional law bound to see to it that any execution took place within five years of conviction, whereas its international treaty obligations (ICCPR and the American Convention on Human Rights) seemed to cause that many death row prisoners could prolong the proceedings beyond the five year time limit. As a consequence, Jamaica withdrew from the Optional Protocol to the Covenant in October 1997. Trinidad and Tobago (May 1998), and Guyana (January 1999) followed suit by first withdrawing from the Optional Protocol and then reacceding with a reservation that intends to bar access to the Committee by any person sentenced to death, whatever the subject matter of his complaint is.
Throughout this very serious chain of developments the Committee has been ready to discuss the situation with the States parties concerned and to adjust its own procedures so that death penalty cases could be decided expeditiously. The Committee was, however, unable to give assurances that it would decide every death penalty case within six months of the submission of the State party reply, as the Committee meets only three times a year with somewhat varying intervals.
In the 67th session (October 1999) the Committee will most likely deal with a case that seeks to challenge the validity of the reservations in question. The Committee will have to decide, as an admissibility issue, whether or not the reservation bars access to the Committee by persons under the sentence of death. A third alternative is to hold that a State that makes an unacceptable reservation to the Optional Protocol is not a State party to that instrument.
The reference in article 40 (4) to “general comments” as an outcome of the reporting procedure has been the starting-point for the elaboration of a category of general interpretatory statements by the Committee, often on a specific article of the Covenant. Such general comments are meant to assist States in preparing their reports but they also serve as general guidance to the Committee's interpretation of the Covenant. The general comments are not based on the reporting procedure alone but do take into account also the case-law under the Optional Protocol. A certain caution is, however, warranted in the use of general comments as a codification of authoritative interpretations, as many of the general comments are quite old and do not necessarily reflect later developments in the Committee's rather dynamic work under the reporting procedure and the Optional Protocol.
Currently the Committee is dealing with three draft general comments. A general comment on article 12 (freedom of movement) will most likely be adopted in the 67th session (October 1999). A general comment on article 3 (equality of men and women), replacing general comment no. 4 (13) has passed its first reading. The Committee has not yet discussed an existing draft for a general comment on non-derogable rights under article 4.
There is a good systematic commentary on the Covenant and its Optional Protocol, based on thorough academic research and direct contact with the Committee and its Secretariat: Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary. Kehl am Rhein – Strasbourg – Arlington 1993: N.P. Engel Verlag. An earlier German edition was published in 1989.
A recent reliable academic study on the reporting procedure is Ineke Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights: Practice and Procedures of the Human Rights Committee. Antwerpen – Groningen – Oxford 1999: Intersentia.
The Annual Reports of the Human Rights Committee are issued as supplement no. 40 to the Official Records of the UN General Assembly, e.g. A/53/40, Report of the Human Rights Committee, General Assembly Official Records: fifty-third session, supplement no. 40. New York 1998: United Nations. In the 1990s, the annual reports have usually been published in two volumes, Volume 2 comprising of decisions and views under the Optional Protocol.
With delay, the annual reports, the Committee's summary records and other documentation appear in the Official Records series (until 1987 called “Yearbook”), e.g. CCPR/12, Official Records of the Human Rights Committee 1992-93, Vol. I, New York and Geneva 1996: United Nations (summary records) and CCPR/12/Add.1, Official Records of the Human Rights Committee 1992-93, Vol. II, New York and Geneva 1996: United Nations (documents).
Currently there is relatively good internet access to the Committee's documents through the website of the United Nations High Commissioner on Human Rights, in particular the Treaty Bodies Database (http://www.unhchr.ch/ tbs/doc.nf). Documents can be accessed, e.g., by Committee and then by country and type of document (for example, views and decisions on communications related to a specific country). There are no systematic search devices and the material is incomplete, for instance in relation to summary records from New York sessions and almost all pre-1992 material.
An alternative website, with relatively good but not complete coverage of earlier cases under the Optional Protocol is the University of Minnesota Human Rights Library (http:// www.umn.edu/humanrts/).