The Human Rights Committee, Treaty Interpretation, and the Last Word

July 24 marked the end of the most recent session of the Human Rights Committee, a part-time body operating under the International Covenant on Civil and Political Rights, 999 UNTS 171. At its most recent session – its 114^th – the Committee adopted “Concluding Observations” concerning seven States as part of the state-reporting process. It also adopted “Views” with respect to 32 individual petitions lodged against States under the Covenant’s Optional Protocol, 999 UNTS 302, finding violations in 17 cases, as reported in the UN press release issued to mark the session’s closing. The Committee also held a half-day discussion in preparation for a new “General Comment” on the right to life, possibly for release at the end of 2016, and an informal meeting with States parties, of which there are now 168, confirming the Covenant’s status as a leading human rights treaty.

As usual, the Human Rights Committee also engaged in dialogue with both national and international human rights NGOs, many of whom brought forward issues and perspectives of use to the Committee’s understanding of State reports. The Committee also heard from national human rights institutions (NHRIs). But organizations and institutions have goals and mandates, just as those who represent States operate under instructions, and one can understand that those with a goal to achieve in their efforts to influence the content forthcoming from a treaty-monitoring body may not wish to provide a critique of the treaty body itself, at least not while the Committee is meeting. But critiques have value for the overall system for the protection and promotion of human rights, with a treaty body’s sense of its role in the field having potential implications for continuing State support.

Bold and Bolder Still?

Over time, the Human Rights Committee has assumed a bolder role with respect to the monitoring of State performance, developing more detailed guidance, and creating more structured systems of follow-up for its recommendations. At times, however, during its recent session, there were indications of a more emboldened approach being taken by at least some Committee members as to their role in determining the content of international human rights treaty law. Indeed, during the closing remarks following the examination of one State party’s report – being a time to sum up the key points illuminated by the Q-and-A with the State – the Committee Chairperson (or President in French and Spanish) is quoted as saying that: “The final arbiter for interpreting the Covenant was the Committee, not individual states.” This quote was included (twice) in a UN press release issued on July 8, and then picked up in the national press of the State being examined – that State being Canada. (See: “Ottawa clashes with UN human rights panel over mining complaints”, Globe and Mail, 8 July 2015). I note that the press releases contain the usual line that these are “For the use of the information media; not an official record”, but the meeting records concerning Canada’s examination have, as yet, not been released. Nevertheless, the quote appears to have been made after a disagreement concerning the extraterritorial application of the Covenant – not a topic lacking discussion either within capitals or among academics.

This was a public comment, made when one must know that there would be a press release to capture the point. It was also not a one-off remark, made on the sidelines or during a private meeting, with the Committee Chairperson earlier in the session making clear in his concluding remarks concerning the review of another State party’s report that: “The Committee was the only body to interpret the Covenant.” The state at issue on this occasion was Spain. The quote was included in the relevant UN press release, and is found in the summary record released for this meeting, which states that the Chairperson, speaking as a member of the Committee, had “emphasized that only the Committee could interpret the Covenant” (CCPR/C/SR.3175 at 12). The press release does not describe the Chairperson as speaking as a member of the Committee in delivering the closing remarks. It also reports the Chairperson as asking: “Which other body could do it if not the Committee?”

Perhaps this is the attitude of one member and not all members of the Committee, but then other members must speak up, as must State representatives and others, as this attitude does not bode well for the process of “constructive dialogue” between treaty bodies and States. It is also in conflict with the observation made long ago by the Permanent Court of International Justice, and found repeated in respected works on Treaty Interpretation, that “it is an established principle that the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to modify or suppress it.” (Question of Jaworzina, Advisory Opinion of 6 December 1923, PCIJ Series B, No. 8, at 37). Clearly, the Committee has a role, mandated by state ratification of the Covenant, to provide observations and recommendations to States parties that may (or may not) have influence and weight depending on such factors as their specificity, the context, and the expertise and stature of the Committee members.

But surely the States parties have not relinquished their ability to determine the meaning of a treaty as between themselves to a part-time treaty-monitoring body tasked primarily to review State reports, and subject to additional State consent, receive and consider individual complaints. (The making of general comments was not a function envisioned by States parties, but a function derived by the Committee itself from a reading of article 40(4) back in 1981. For the Committee’s views on the original purposes of general comments, see A/36/40, Annex VII). There is no provision within the Covenant indicating an intention on the part of States parties to make clear that the Committee is to be the final arbiter, with the interpretation of rights, as we well know, always entailing matters for debate. The Covenant’s article 40(4) makes clear that the Committee may comment, and article 40(5) makes clear that the States parties retain the right to comment on those comments.

With the Committee keen to see the Covenant having domestic force and application, it is also worth mentioning, in answer to the Chairperson’s reported question, that another body that could interpret the Covenant is, of course, a national court within a State party. By contrast, the Human Rights Committee “is neither a court nor a body with a quasi-judicial mandate” – as one its own publications once pithily explained – although within the context of individual complaints (not state reports), the Committee has applied the provisions of the Covenant and the Optional Protocol in “a judicial spirit”. The Human Rights Committee is as its name suggests; it is a committee. Its members need not have a law degree, nor the qualifications for judicial office. The 18 individuals serve as committee “members”, to use the terminology of the Covenant, although the term “independent expert” (and “Expert” with a capital E) has gained favour in recent years.

“An Important Role” but not the Last Word

Thankfully, the UN High Commissioner for Human Rights has embraced a more nuanced approach, with his recent address to the International Law Commission explaining that the “now ten Committees of independent experts … play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. The Committees monitor, question and guide compliance with the human rights treaties; … The work of these Committees greatly contributes to the development of international human rights law – not only through their jurisprudence, following consideration of many individual cases, but also through important general comments.”

Monitor, question and guide are all apt verbs to use to encourage a continuing dialogue and to foster State acceptance. But it would be an incomplete summary not to mention that the High Commissioner went on to give an example, describing the recently adopted general comment 35, concerning the right to liberty and security of person, as having “codified the Committee’s work over the past three decades on this issue, to give government officials, legal practitioners, human rights monitors and civil society a full understanding of the Committee’s views …” General comment 35 may indeed be intended as a “codification of the existing practice, with some filling in the existing blanks” (to quote words attributed to Committee member Sir Nigel Rodley in a UN press release), but its publication does not end the dialogue concerning the appropriate interpretation of article 9, and there are States that have expressed views about certain aspects (some of which are found here).

Working Methods

The state reporting process under the Covenant requires both a written report and a question-and-answer event known as the “interactive dialogue”. During the Human Rights Committee’s recent session, some disquiet was expressed about the oral component, with Venezuela (after a 15-year absence before the Committee) reportedly complaining about a perceived disproportion in time spent during its review for the “interpretation and voicing of views” by Committee members as compared with the time “dedicated to concrete questions”. According to the associated UN press release: “Several Committee Experts responded to concern raised by the delegation regarding the “unfriendly” ambiance of the Committee. They clarified that they did not act as judges, but tried to gather more information, in a constructive manner. They stated that they hoped that the dialogue would help the delegation find the answers.” The summary records for the relevant meetings (CCPR/C/SR.3164, 3165 and 3166) do not report this exact wording, but confirm concerns were raised about the time made available to a State delegation to answer questions. Six or nine hours is often an insufficient period of time for a State to answer questions on a wide array of issues, with many States following up with written replies when time has ran out.

To end on a more positive note, one change to the Committee’s working methods that is garnering some State support is the use of a simplified reporting procedure. Under this approach, the State party receives a list of issues from the Committee one year before its report is due and its replies are considered to be its report. This process provides the basis for a more focused inquiry that reduces the need for both a report and written replies from the State. According to information presented at the Committee’s meeting with States parties, four states have, to date, been examined under the simplified reporting procedure, with at least another 32 States expressing interest. It is hoped that such innovations can address the backlogs faced by the Committee, although there remain over 500 individual communications awaiting consideration, and 53 States are at least five years overdue with either their initial or periodic report. Resource constraints also remain an issue.