27 February 2006Martin Scheinin, Åbo Akademi1 The Human Rights Committee Prof. Martin Scheinin Åbo Akademi University

27 February 2006 Martin Scheinin, Åbo Akademi 2 Introduction: ICCPR, the HRC and the UN Human Rights System The political arm: the Commission on human rights, the Sub-commission, their specialized procedures, the Security Council The legal arm: the 6 (or 7) main human rights treaties and their monitoring bodies The High Commissioner and the Secretariat Governments and NGOs Towards a Human Rights Council (as the political arm)

27 February 2006 Martin Scheinin, Åbo Akademi 3 Human Rights Instruments The Universal Declaration (1948) The Covenants of 1966 Covenant on Civil and Political Rights Optional Protocol (complaints procedure) Second Optional Protocol Covenant on Economic, Social and Cultural Rights Plans for an Optional Protocol on complaints Specialized Treaties CERD, CEDAW, CAT, CRC, MWC Regional Human Rights Treaties ILO Conventions

27 February 2006 Martin Scheinin, Åbo Akademi 4 Monitoring Mechanisms Treaty Bodies Note: the CESCR as an exception (“resolution body”) Periodic Reporting Mandatory Similarities and differences Inter-State Complaints Individual Complaints General Comments/General Recommendations

27 February 2006 Martin Scheinin, Åbo Akademi 5 The Covenant on Civil and Political Rights The Substantive Rights Provisions Arts. 1, 3, 6-19, partly OptProt Art. 1 Provisions on the Operation of Rights Provisions Arts. 2, 4, 5, 20, 50 + OP art 10, 2OP arts. 6 and 9 Provisions on the Human Rights Committee and its Monitoring Functions Arts OP arts OP arts. 3-5 Provisions on the ICCPR as an International Treaty Arts and OP arts. 8, 9, OP arts. 2, 7,8, 10, 11

27 February 2006 Martin Scheinin, Åbo Akademi 6 Human Rights Committee A Body of Independent Experts Composition 28, 31 Elections 29-30, 32 Guarantees for independence 33, 38 Main Functions Consideration of Reports by States 40 Consideration of Individual Complaints OP Adoption of General Comments 40.4

27 February 2006 Martin Scheinin, Åbo Akademi 7 The Rights Covered “Civil Rights”: 6-18, “Political Rights”: 19-22, 25 Beyond civil and political rights: 26, 27, 18.4, 22, 1 Not covered: right to property, right to nationality (see 24.3), right to asylum (see 7 and 13) Ratification data

27 February 2006 Martin Scheinin, Åbo Akademi 8 The Reporting Procedure Periodicity – the Reporting Cycle Preparation, submission, translation and issuing, list of issues, oral consideration, concluding observations, follow-up response Points of entry for NGOs) Hearings before submission on the domestic level; before list of issues and before oral consideration at the UN New emphasis on follow-up Follow-up submission on selected issues in 12 months Consideration of situations in the absence of a report Either with or without a government delegation Aims at facilitating the submission of an overdue report

27 February 2006 Martin Scheinin, Åbo Akademi 9 The Reporting Cycle

27 February 2006 Martin Scheinin, Åbo Akademi 10 The OP Procedure for Individual ComplaintsOP Registration Role and limits of secretariat action Role of the Committee’s Special Rapporteur on New Communications (OP 4.1) Form, substance, language (OP 2) Transmittal to the State party (OP 4.1, Rule 97) Determination of Admissibility and Merits Admissibility also by working group (para. 2) Written adversarial procedure (OP 4.2, 5.1, 5.3) Merits Confidentiality: see Rule 102 Issuing of Views (OP 5.4) Individual opinions (Art. 39.2b) Follow-up (OP 6) Special Rapporteur on Follow-up on Views

27 February 2006 Martin Scheinin, Åbo Akademi 11 Admissibility Conditions Art 1: ratione loci/personae/temporis Representation by relative (“author”) or counsel Extraterritorial effect of the Covenant, continuing effect of a violation, state responsibility for violations by third parties Art 2: ratione materiae: a claim and its substantiation “Facts and evicence” jurisprudence by the Committee Art 3: ratione materiae: incompatibility + abuse + reservations Art 5.2: the same matter + exhaustion of domestic remedies Discrepancies between authentig language versions Recoverable inadmissibility grounds

27 February 2006 Martin Scheinin, Åbo Akademi 12 Interim measures of protection Rule 92 of the Committee’s Rules of Procedure Degree of compliance is traditionally high Jamaica and other Caribbean Commonwealth countries Newer challenges: Uzbekistan, Tajikistan, Belarus – even Canada… Dante Piandiong et al. v. the Philippines (2000) “Grave breach” of the Optional Protocol Is execution a special case? See para Two cases of non- compliance in the context of deportation follow the same reasoning (Ahani v. Canada and Weiss v. Austria) Compare to European Court in Cruz Varas v. Sweden (1991) and Mamatkulov and Abdurasulovic v. Turkey (2003) Other instances of Rule 92 requests Deportation/expulsion – not solely in art. 6/7 cases Permanent environmental harm to indigenous groups

27 February 2006 Martin Scheinin, Åbo Akademi 13 Reservations to the CCPR The Vienna Convention RegimeVienna Convention Note also article 20, paragraph 3 Practice of the European Court of Human Rights (art. 57, Belilos, Loizidou) HRC General Comment No. 24 severability of impermissible reservations Kennedy v. Trinidad and Tobago (845/1999)Kennedy v. Trinidad and Tobago compare, however, Hopu and Bessert v. France (549/1993) see, also, the dissenting opinion

27 February 2006 Martin Scheinin, Åbo Akademi 14 Legal Nature of the Findings by the HRC “Recommendations”? Institutionalized practices of interpretation in relation to treaty obligations by the body authorized to monitor compliance CCPR art. 2, para. 3: a right to an effective remedy, legal basis for the Final Views Challenges: unexplained non-compliance, references to domestic law, contesting the Committee’s interpretation Piandiong et al. v. Philippines (869/1999)Piandiong et al. v. Philippines Rule 92/"grave breach" of Opt. Protocol art. 1 when irreparable harm (execution) caused in a case pending before the HRC Laptsevich v. Belarus (780/1997)Laptsevich v. Belarus Language and legal nature of the Concluding ObservationsConcluding Observations

27 February 2006 Martin Scheinin, Åbo Akademi 15 Extraterritorial effect of human rights treaties HRC: Concluding Observations on Israel (1998 and 2003) the Covenant must be held applicable to the occupied territories and those areas of Southern Lebanon and West Bekaa where Israel exercises effective control (CCPR/C/79/Add.93) the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by [Israel’s] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of public international law (CCPR/CO/78/ISR) HRC: Lopez Burgos v. Uruguay (1981)Lopez Burgos v. Uruguay Abduction of citizens on foreign soil by State agents HRC: Ibrahima Gueye et al. v. France (1989) The authors were non-citizens and non-resident, subject to French jurisdiction only in that they rely on French legislation in relation to their pension rights. HRC: Concluding Observations on Iran (1993) Fatwa on Salman Rushdie and threats to execute it outside the territory of Iran

27 February 2006 Martin Scheinin, Åbo Akademi 16 Continuity of Obligations State Succession: Former Soviet Union and Former Yugoslavia Former Yugoslavia Kazakhstan as the last case; no reservations practical significance: no breaks in State responsibility Changes in Sovereignty Hong Kong and Macau Potentials of Reporting by Non-States? Kosovo Issue of Withdrawal: the Case of North Korea and General Comment No. 26 compare to the Vienna Convention Regime

27 February 2006 Martin Scheinin, Åbo Akademi 17 Distinction vs. Interdependence J.B. et al. v. Canada (118/1982) distinction approach (right to strike) General Comment No. 23 distinction approach to minority rights Hopu and Bessert v. France (549/1993) interdependence approach to minority rights dissenting opinion: distinction approach General Comment No. 28 interdependence within the CCPR General Comment No. 29 interdependence beyond the CCPR

27 February 2006 Martin Scheinin, Åbo Akademi 18 Unconditionality: States of Emergency and Derogation Article 4 taken at its face value narrow list of nonderogable rights in para. 2 General Comment No. 29 limiting the power of States to derogate, through the interdependence approach and with reference to other areas of international law nonderogable dimensions of arts. 2, 9, 10, 12, 14, 20, 26, Relevance in the context of counter-terrorism Systematic attention in the reporting procedure since September 11, 2001