Home EJIL Analysis The Human Rights Committee and its Role in Interpreting the International Covenant on Civil and Political Rights vis-à-vis States Parties

The Human Rights Committee and its Role in Interpreting the International Covenant on Civil and Political Rights vis-à-vis States Parties

Published on August 28, 2015        Author: 

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.

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4 Responses

  1. Jakob Cornides Jakob Cornides

    The HRC’s interpretive comments are not binding on States.

    “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.”

    This is right, but inversely the HRC’s interpretation does not enjoy primacy over that of a State party. It is in the nature of “comments” or “opinions” (as opposed to judgments and decisions) that their weigth lies in the quality of the arguments that are put forward. The HRC certainly is in a privileged position in the snse that it receives periodic reports and can adopt concluding observations, but if those observations (or the Committee’s “general comments”) fail to convince the addressee, then that’s the end of it.

    Therefore no, it is wrong to claim that the HRC generally has “an interpretative authority that prevails over that of States parties”. The authority depends on the substance of what is being said.

  2. Jordan

    As with any institutional arrangement that is part of the international legal process, authority should realistically be measured over time, with reference to a functioning process of review in which numerous actors potentially participate. Institutional decisions may or may not be accepted in a given circumstance, over time, while some participate by inaction and/or apathy, leaving others to participate more directly, and so forth as decisions are reviewed.

  3. Joanna Harrington

    Many thanks for engaging in a dialogue and sharing views.

    Given the emphatic “the HRC has a quasi-judicial nature”, it may be of interest that one of the leading texts for teaching international human rights law in English includes the following line, found within the “Questions” box used to engage students in the discussion of current issues: “Some commentators would like to characterize the ICCPR Committee as a ‘quasi-judicial’ body. …” The authors of the text are none other than Philip Alston and Ryan Goodman and it is a relatively recent work. See Alston and Goodman, International Human Rights (Oxford University Press, 2013) at 767. Later on in this text, at 776, there is an excerpt from a Committee-state dialogue where one of the Committee’s own members (Professor Kälin) states: “The examination of a state’s report is not a quasi-judicial procedure.” And for me, that’s the key. Our analysis must take into account as to which function we are talking about, with the Committee having several functions, and thus several roles.

    My blogpost of August 5 focused on the state-reporting process, with the general comments function having arisen from the state-reporting process. I did not examine any individual communications in that particular post; comments to the post drew a link to discussions of communications. I have no issue with the argument that the Committee operates with a judicial spirit with respect to the individual communications function, as I indicated in the post, and indeed, in past scholarship, I myself have invoked the good faith argument. (See:

    But issues arise if the Human Rights Committee is asserted as a quasi-judicial body in the state-reporting process, including the need for the Committee members, if they are now acting as judges, to avoid any appearance of bias or indications of a pre-formed opinion concerning a particular state’s record before the closed meeting at the end of the process when the Committee crafts its Concluding Observations by consensus. Indeed, Alston & Goodman, at page 767, ask “What changes would be desirable if the Committee were to seek to resemble more closely a quasi-judicial model?”

    But, in the final analysis, what is gained by assertions that the committee is the final arbiter? Asserting that the committee is now or is in effect a court, and that its members are akin to judges, is unlikely to make states more receptive to the Committee’s important efforts. And this includes state organs, such as national courts, to which many look to give Covenant rights domestic effect. Consider, for example, the reception given by the House of Lords to the conclusions from the state-reporting process of the Committee Against Torture in Jones v Ministry of Interior, [2006] UKHL 26, with none other than Lord Bingham of Cornhill stating that “… the Committee is not an exclusively legal and not an adjudicative body” (para 23). As for the value of the particular Committee conclusion at issue in that case, it was considered “slight” by Lord Bingham (para 23) and “as having no value” by Lord Hoffman (para 57).

  4. Ben

    Dear Dr Citroni

    Thank you for this further contribution to this interesting issue. The most important point, I suggest, is that, as you say:

    “The Covenant is thus constantly subjected to interpretation by a plurality of subjects.”

    but the Committee (and its counterparts) must be seen as one part of that constant and plural process of interpretation, albeit, and as you note, with some reason – both in the text of the Covenant and in the breadth of its work – to expect tat it may have some greater influence than other participants, and it is not as simple as Dr Cornides suggests. However – and to some degree agreeing with Prof Paust and Dr Harrington – your proposition that:

    “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.”

    is simply not correct: as your comment goes on to note, states parties to the Covenant have, both in its terms and in their subsequent practice, consciously decided not to confer “final” authority on the Committee. The widespread criticisms of recent contentious general comments – the most significant and considered interpretative effort of the Committee – indicate that the Committee, while having a significant role, continues to lack “final” authority. The same point follows from the various ICJ dicta.

    However, it also does not follow that the position of states parties that contest Committee statements is “easy”, as suggested in the final paragraph; nor is it correct, as Dr Cornides suggests, that a failure to persuade a state party is “the end of it”. Such states do, and should, have to justify their positions not only in future Committee interactions, but also before other UN and other fora, including – for some, anyway – their own domestic courts, NHRIs or other fora. They may also incur informal or, in extreme cases, formal sanctions for their positions. And sometimes that argument will fo back and forth for years or decades, and in doing so may reach a more complex or better supported position.

    The wider point is that assertions of final authority are, ultimately, destructive: not only are they not correct as a matter of law or of practice, but they risk not only distraction but also a tendency to assertion rather than reaoned argument, both for the Committee itself and for actually delinquent states parties.

    Thanks again.