The role of the UN Human Rights Committee (HRC) in the interpretation of the provisions of the International Covenant on Civil and Political Rights (the Covenant) has recently been questioned in a post by Dr. Harrington.
Dr. Harrington recognises that the HRC has an important role in the interpretation of the Covenant, however the last word on interpretation would go to States parties. The HRC should “monitor, question and guide”, but it would be States who decide whether the observations and recommendations issued by the HRC are to be supported and implemented. This would allegedly depend on “the specificity and the context” of the recommendations and “the expertise and stature of the Committee members”. This view of the role of the HRC is not unanimously shared, as is clear from some of the comments on the post that refer to authoritative sources that qualify the HRC as the “pre-eminent interpreter of the Covenant”.
It is here argued that the main question is who can say the best, rather than the last, word on the interpretation of the Covenant. In this regard, the HRC has an interpretative authority that prevails over that of States parties, especially when it comes to examining periodic reports and formulating concluding observations. In fact, the HRC, far more than the individual States parties, has the experience in applying the Covenant that is relevant for its interpretation.
By ratifying the Covenant, States undertake obligations and accept the competence of the HRC as stipulated therein. This includes undertaking to submit periodic reports on the measures they have adopted to give effect to the rights enshrined in the Covenant and on the progress made in the enjoyment of those rights (Art. 40.1).
Under Art. 40.4 of the Covenant, the HRC studies the reports submitted by the States parties and formulates general comments as it considers appropriate. States parties may submit observations on the HRC’s comments to the HRC (Art. 40.5).
The State parties agreed to establish the HRC and to grant it the power, among others, to provide comments on periodic reports and, consequently, interpretations of the provisions of the Covenant. The HRC is not an “alien” body, but has been created by the parties to the Covenant with certain specific powers that are related to the interpretation of its provisions. This leads to a practice in the application of the Covenant that is being developed within the “Covenant system” and is based on the “agreement of the parties”. This should consequently be taken into account in the interpretation of the Covenant’s provisions, in accordance with Art. 31.3(b) of the Vienna Convention on the Law of Treaties.
In the process of examination of periodic reports as envisaged in the Covenant, States parties’ comments do not have greater weight than those of the HRC. Although Art. 40.5 of the Covenant generically refers to “States parties”, it is likely that it will be the State actually concerned (i.e. the one subjected to the examination) who formulates the comments. In the practice of the HRC to date, there have been no instances where any State other than the one examined has formally commented on the HRC concluding observations.
The function designed for the HRC by the Covenant in the examination of the States parties’ reports is precisely that of a super partes interpreter that, as such, provides the most reliable and objective interpretation of the Covenant.
The examination procedure currently involves various stake-holders who have plenty of time to present their views and interpretation of the Covenant. For example, the process of examination of the latest periodic report by Canada which culminated in the adoption of the HRC concluding observations on 24 July 2015 started on 9 April 2013, when the State submitted its sixth periodic report.
Eight NGOs submitted alternative reports to the HRC to highlight concerns related to the human rights situation in Canada in view of the adoption of the so-called “list of issues” (a document where the HRC puts forward specific questions addressed to the State). On 31 October 2014 the HRC adopted the list of issues and Canada submitted its answers on 8 June 2015.
In June 2015, a national human rights institution and 27 NGOs submitted alternative reports in view of the session. Representatives of NGOs met with members of the HRC on 6 July 2015 and were allowed to orally present their concerns. Eventually, on 7 and 8 July 2015, the examination of the State’s report took place. During the public sessions both the members of the HRC and of the State’s delegation expressed their views and respective interpretations of the Covenant. These interpretations often diverged. This is a common and positive situation; debate is the core of a constructive and genuine dialogue.
Between April 2013 and June 2015, the Covenant has thus been repeatedly interpreted by a variety of actors. But everything must come to an end and the HRC is required by the Covenant to play the role of super partes interpreter and issue its conclusions and recommendations. As could be expected, not all its observations nor its interpretation of the Covenant pleased the State concerned. Pursuant to Art. 40.5 of the Covenant, that State may comment on the HRC’s conclusions. As noted, other States parties could also do so, although so far this has not occurred. Until now, States parties have not expressed themselves collectively on the interpretation of the Covenant’s provisions in the process of States’ reporting, which is also due to the fact that they often greatly differ on many aspects of such interpretation.
By 24 July 2016 Canada will have to submit a follow-up report containing relevant information on its implementation of some recommendations made by the HRC. NGOs will be entitled to submit alternative follow-up reports. The next State’s report is due by 24 July 2020, and the whole process will start anew.
The Covenant is thus constantly subjected to interpretation by a plurality of subjects. This cannot but enrich international human rights law and practice, nourishing debate, especially on sensitive issues such as the extra-territorial application of human rights treaties.
However, even if a State disagrees with the interpretation of the Covenant contained in the concluding observations concerning its report, it cannot invoke the primacy of its interpretation over that of the HRC. Under Art. 40.5, States parties are entitled to comment and voice their discontent. Some States do so, although not all of them. For instance, no State, including the one directly concerned, formally objected to the Covenant’s interpretation concerning the extra-territorial applicability of the treaty contained in the 2012 HRC’s concluding observations on Germany (para. 16).
It is a completely different thing to say that, where the relevant State party does not like the interpretation of the Covenant provided by the HRC, it can impose its own interpretation as being better than that of the HRC, and therefore justify a failure to implement the HRC’s recommendations. By ratifying or acceding to the Covenant, a State party also acknowledges the competence of the monitoring body of such treaty (i.e. the HRC) to examine its periodic reports, play the role of super partes interpreter of the treaty, and come up with conclusions and recommendations. This is certainly the case with bodies with a quasi-judicial mandate, and the HRC has a quasi-judicial nature, as most scholars and international jurisprudence recognise (among others, Tomuschat C., Les observations générales, in Decaux E. (ed.), Le Pacte International relatif aux droits civils et politiques, Economica, 2011, p. 15; Buergenthal T., The U.N. Human Rights Committee, in Frowein J.A. and Wolfrum R. (eds.), Max Planck Yearbook of United Nations Law, Vol. 5, 2001, pp. 341-398. See also HRC, General Comment No. 33, 2008, para. 11). In this context, the acceptance and implementation of the HRC’s recommendations is evidence of a State party’s good faith attitude towards its obligations pursuant to the Covenant.
Those States that are fully open to scrutiny go a step further. They ratify international human rights treaties that are monitored by international courts that issue binding judgments, and they accept their jurisdiction. Regrettably, too many States still refrain from doing so. It is likely that States that do not accept a binding settlement of human rights disputes take such a disappointing attitude because they are very attached to their unilateral interpretations of human rights provisions. They do not run the risk of being told by a court that they are responsible for the violation of human rights on the basis of an interpretation different from their favoured one. They prefer to put forward their own interpretations and keep them, taking advantage of the easy position of being party and judge at the same time in their own case. This also explains why, at least from a moral point of view, the interpretation provided by an independent, although quasi-judicial, organ, such as the HRC, overrides interpretations provided by States.