States are Bound to Consider the UN Human Rights Committee’s Views in Good Faith
Nikolaos Sitaropoulos 11th March 2015

The thorny question of implementation of the Views adopted by the UN Human Rights Committee (HRC) under the Optional Protocol (OP) to the International Covenant on Civil and Political Rights (ICCPR) was again thrust into the limelight by the French government’s comments on a report recently published by the Council of Europe Commissioner for Human Rights. The comments made clear that France is not about to give effect to three Views issued by the UN Human Rights Committee in 2011 and 2013 finding violations of the Sikh authors’ freedom of religion for being legally obliged to denounce wearing a turban on their identity or residence permit photographs, or in order to attend an upper high school (lycée).

The first major argument put forward by the French government is that these questions were settled in 2006 by the French Supreme Administrative Court (Conseil d’Etat) in Association United Sikhs where this kind of restrictions were found lawful.

The second major argument presented by France is that in 2005 and 2008 the European Court of Human Rights (ECtHR) also considered the above restrictive measures compatible with the European Convention on Human Rights (ECHR).

In its General Comment No 33 (2008), the HRC noted that even though it is not a judicial body, its Views “exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members”. It added that the Views are “an authoritative determination by a quasi-judicial organ established by ICCPR tasked with the interpretation of this treaty”.

As a consequence, every state party to ICCPR and its OP is bound by their provisions and the findings of the HRC, in accordance with the fundamental principle of pacta sunt servanda. Article 26 of the Vienna Convention on the Law of Treaties (VCLT) exemplifies this principle as follows: “Every treaty in force is binding upon the parties to it and must be performed in good faith”.

A vital, concomitant rule of customary international law is that no state party to a treaty may invoke the provisions of its internal law as justification for its failure to perform a treaty (Article 27 VCLT). Under Article 27 VCLT domestic courts are actually bound to give effect to a ratified treaty. This is even more so where the constitution of that state, like France (Article 55), provides that ratified treaties prevail over domestic statutes. In view of the above, France’s first argument is hardly watertight.

As to the second argument based, in effect, on an alleged prevalence of ECHR over ICCPR in cases concerning religious freedom, in principle this could stand if France had made such a declaration upon acceding to ICCPR. Such a declaration was indeed made with regard to Articles 19 (freedom to hold opinions and of expression), 21 (right of peaceful assembly) and 22 (freedom of association) of ICCPR. However, Article 18 ICCPR covering religious freedom has been left out.

The inapplicability of the argument of prevalence of ECHR over ICCPR in this case may also be grounded in Article 53 ECHR. According to this provision nothing in ECHR may be construed as limiting or derogating from human rights that may be ensured under domestic law or another ratified treaty.

A 2014 report by the Council of Europe’s Venice Commission echoed the widely accepted view that even though the HRC’s Views are not binding judgments, they still have a legal consequence: the states parties’ obligation to take the HRC’s Views into consideration in good faith.

Arguably good faith means, inter alia, that when a state party feels obliged to contest the HRC’s Views it should provide arguments that are legally sound and coherent. This is not the case in the Sikh cases and France’s arguments disregarding ICCPR and its adjudicating organ’s decisions. Regrettably states often forget that ICCPR is one of the building blocks of the international human rights system, which, unlike other human rights treaties like ECHR, contains no denunciation clause. It is indeed a cornerstone of the modern international law regime that merits much more attention and effective respect by all states parties.

Author profile

Nikolaos Sitaropoulos, Deputy to the Director and Head of Division, Office of the Council of Europe Commissioner for Human Rights. All views expressed herein bind solely the author.

Citations

Nikolaos Sitaropoulos “States are Bound to Consider the UN Human Rights Committee’s Views in Good Faith” (OxHRH Blog, 11 March 2015) <http://humanrights.dev3.oneltd.eu/states-are-bound-to-consider-the-un-human-rights-committees-views-in-good-faith/> [Date of Access].

Comments

  1. Ed Bates says:

    Thank you very much indeed for this highly informative blog post. It raises some fascinating issues about the function and role of the Human Rights Committee, and the authority and force of its ‘views’.

    Unless I am mistaken, it seems that the position, endorsed by the Venice Commission, is as follows: that HRC views are (i) not binding, but are not without influence either (as you very helpfully set out, thank you); (ii) they give rise to a State ‘obligation’ to properly justify non-implementation.

    I wonder, then, what a State would have to do to properly justify non-implementation, i.e. validly rebut the view of the HRC? As you suggest, the State’s obligation is ‘to take the HRC’s Views into consideration in good faith’. And you suggest, convincingly, ‘[a]rguably good faith means, inter alia, that when a state party feels obliged to contest the HRC’s views it should provide arguments that are legally sound and coherent’. I guess the focus would then turn to what counts as a ‘legally sound and coherent’ argument – and, of course, who determines what counts as such?

    To pick a controversial example relevant to the UK – prisoner voting (groan!) – I recall that in a case against Russia the HRC has found (in its view) that a blanket ban on convicted prisoner voting violated the relevant provision of the ICCPR. The UK has not accepted the first OP to the ICCPR, of course (and I guess with matters moving in the direction noted, that could be an ever more unlikely prospect). But if it had and the HRC delivered a view to that effect in respect of the UK, would it be sufficient for the UK to put forward the same arguments it did in Hirst v UK i.e. that the British position is valid since it is reasonable position for a democratic state to adopt to disenfranchise individuals who have committed a crime serious enough to go to prison, a solution which is proportionate with respect to the interference with the right to vote as the ban only lasts as long as the length of sentence (and, to reiterate, only applies to a person convicted of an offence serious enough to be put in prisoner). That’s a positionI do not personally agree with, and nor one that the relevant UK Parliamentary Committee has accepted (in its view), or Strasbourg in its judgments, of course. Then again, it might be considered a not unreasonable position, i.e. one that is legally sound and coherent. So, would that be a basis to rebut the HRC’s view (wheres, of course, by virtue of Art 46(1) ECHR, the UK cannot adopt this position under the Convention)?

    Two last thoughts. (i) The ICCPR does not include a denunciation clause, but the first Optional Protocol does (Art 12). I guess there is a danger, then, that the more the HRC’s views are seen to have this quasi-binding effect, the greater is the prospect that some States may choose to denounce the instrument. (ii) Further, what if, when considering a case under the first OP, the HRC is divided (as it sometimes is)? Might the separate opinion/ dissent itself demonstrate the existence of, presumably, an alternative position (one which the State concerned may be encouraged to adopt, as part of its rebuttable of the view)?

    I appreciate I am raising far more questions than answers here, forgive me – so, thank you for your very thought-provoking blog post.
    Ed Bates – Leicester Law School.

    1. Nikolaos Sitaropoulos says:

      Thank you for all these interesting comments and hypothetical questions which unfortunately cannot be tackled in this extremely limited (but great) blog space.
      The major aim of the above blog post was to initiate some reflection and discussion on real state practice concerning the implementation of the HRC’s Views and of ICCPR itself.
      The government comments briefly analysed herein raise serious issues of state policy and of compliance with obligations emanating from one of the three pillars of the “International Bill of Rights”, the ICCPR. What is of particular concern is the fact that in this case a specific European state that has played a crucial role in the advancement of human rights protection worldwide appears unable to put forward non-compliance arguments that are coherent and sound by international law standards.
      This is indeed a sad situation and precedent adversely affecting not only the ICCPR and the HRC’s status and effectiveness but also the credibility of the state party itself, as well that of other states parties bound by this covenant. In this context it may be useful to recall that states parties to the ICCPR are supposed to have a collective responsibility to safeguard the effectiveness of this instrument. Hence the provisions of Article 41 ICCPR concerning the possibility of inter-state communications in cases related to the non fulfilment by a state party of its obligations under the ICCPR.

      1. Ed Bates says:

        Thank you very much – of course, you are absolutely right (if I may say so very respectfully). For any State- let alone a leading State – to offer no legally coherent and sound explanation for the non-implementation of a HRC (or other treaty body) view directed against it sets a very unsatisfactory, indeed, dangerous precedent.

        In your blog post , the hyperlink to the French ‘comments’ on the Council of Europe Commissioner for Human Rights’ Report does not seem to work. Would it be possible, please, for you to provide the link?

        Thank you again – this is a fascinating issue both for the individual reaction by, here, France, and, going forward, as regards the status and authority of bodies such as the HRC.
        Ed.

        1. Nikolaos Sitaropoulos says:

          The French government’s comments can be found at:
          https://wcd.coe.int/ViewDoc.jsp?Ref=CommDH/GovRep(2015)1&Language=lanFrench – of relevance to the issue at hand are pp. 6-7.

  2. Martin Scheinin says:

    The argument by Dr Nikolaos Sitaropoulos that states have a legal obligation to consider in good faith the consequences of the Views by the Human Rights Committee is a careful and well-reasoned position. Having been dealing in various capacities with the work of the Committee over a period of three decades now, let me offer two complementing comments.

    The position of the Committee itself, expressed in its General Comment No. 33 and referred to by Sitaropoulos, has a legal basis in the ICCPR itself, namely in its Article 2 (3). Whenever there has been a violation of the ICCPR, the state has under international law an obligation to provide an effective remedy. In its Final Views issued on individual complaints submitted under the Optional Protocol, the Committee systematically refers to this provision whenever it finds that there has been a violation of the ICCPR. Even if the Committee itself is not a court, it is a body of independent experts, elected by the states parties for the purpose of interpreting the ICCPR, including through its procedure for individual complaints. When the Committee has concluded a case through an adversarial procedure, it would not represent treaty compliance in good faith if a state was in a position to enforce its own view (of non-violation), after if it had unsuccessfully represented that view before the Committee. Where there is room for varying modes of good faith compliance, is whether the state has an obligation to provide exactly the remedy that the Committee has seen appropriate (e.g. compensation), or whether it asserts that another form of remedy (e.g. public apology) suffices as compliance under ICCPR Article 2 (3).

    The above comment relates merely to the level of international law. It is a separate matter whether the Views by the Human Rights Committee will be implemented through the courts of states parties. They may not be in a position to do so under domestic constitutional law, even if the state is under international law obliged to provide an effective remedy. The Views by the Human Rights Committee do not quash domestic judicial decisions. Its pronouncements on a remedy (e.g. compensation) may or may not be enforceable through domestic courts. Even when they are not enforceable, the state is under an international legal obligation to provide an effective remedy. The Venice Commission report mentioned by Sitaropoulos includes a confused sentence: “Domestic courts have frequently and consistently rejected any formally binding quality of the views, for example in Austria, Sri Lanka, Spain, Ireland, and France.” Normally, these court rulings would deal with the domestic judicial enforceability of the Views and they point to an underlying failure of domestic law to provide a judicial mechanism for the implementation of a specific international obligation. For a (rare) judicial decision affirming the domestic judicial enforceability of the Committee’s Views, however, see the ruling by the Supreme Adminstrative Court of Finland KHO:1993-A-25 that related to the implementation of the Committee’s Views in Torres v. Finland (Communication 291/1988) and ordered the state to pay compensation.

  3. Nikolaos Sitaropoulos says:

    Update: The case of Singh v France was revisited in July 2015 by the HRC (Concluding Observations) stressing France’s obligation to abide by the relevant ICCPR provisions as interpreted by the HRC:
    « Le Comité est préoccupé que l’État partie manque aux obligations qui lui incombent en vertu du Pacte et du premier Protocole facultatif s’y rapportant de prévoir des recours utiles pour les victimes en cas de violation des droits énoncés dans le Pacte, en application des constatations adoptées par le Comité comme par exemple dans l’affaire Singh c. France, (communication No. 1852/2008). Le Comité rappelle en outre que, en adhérant au premier Protocole facultatif, l’État partie a reconnu que le Comité avait compétence pour recevoir et examiner des communications émanant de particuliers relevant de la juridiction de l’État partie et qu’il s’est engagé à assurer un recours utile et exécutoire lorsqu’une violation a été établie, (art. 2).
    L’État partie devrait revoir sa position à l’égard des constatations adoptées par le Comité en vertu du premier Protocole facultatif de façon à garantir l’accès à un recours efficace en cas de violation du Pacte, conformément au paragraphe 3 de l’article 2.Il devrait par ailleurs diffuser largement les décisions du Comité et mieux faire connaître les obligations qui incombent à l’Etat partie en vertu du Pacte. »

    Link : http://www.ccprcentre.org/doc/2015/07/CCPR_C_FRA_CO_5.docx

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