Andersen & Khetarpal: As Protests Surge Globally, the UN Human Rights Committee Provides Timely Guidance

Elizabeth Andersen (World Justice Project) & Jaya Khetarpal (World Justice Project) have posted an ASIL Insight on As Protests Surge Globally, the UN Human Rights Committee Provides Timely Guidance.

Shany: Can Strasbourg be replicated at a global level? A View from Geneva

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted Can Strasbourg be replicated at a global level? A View from Geneva (in The European Court of Human Rights - Current Challenges in Historical and Comparative Perspective, Helmut Philipp Aust & Esra Demir-Gürsel eds., forthcoming). Here's the abstract:

How can one explain the fact that a relatively weak human rights monitoring body, the Human Rights Committee (HRCttee) is adopting, at times, bolder legal interpretations of international human rights law than the European Court of Human Rights (ECtHR) – the consummate international human rights court? And how can the Committee’s traditional aversion to the margin of appreciation doctrine be reconciled with the fact that it oversees a far more diverse group of states than the ECtHR? And finally, how does one explain the decision by a country to revise its laws following the issuance of the views of the HRCttee, despite the acceptance of the same laws by the ECtHR?

This Chapter seeks to provide some answers to these questions through allusion to the different historical and geopolitical context for the establishment and operation of the ECtHR and the HRCttee. In a nutshell, it argues that the ECtHR forms part of a European agenda of regional integration and democratization, which has no direct parallel at the global level, and that the said agenda influences the legal tools the Court applies and its self-role perception. At the same time, the HRCttee, like other UN treaty bodies, derive their legitimacy from other sources – especially from the notion of universality of international human rights – a notion with powerful symbolic value, which exerts on some states considerable compliance pull.

Seibert-Fohr: Digital Surveillance, Meta Data and Foreign Intelligence Cooperation: Unpacking the International Right to Privacy

Anja Seibert-Fohr (Universität Heidelberg - Law) has posted Digital Surveillance, Meta Data and Foreign Intelligence Cooperation: Unpacking the International Right to Privacy. Here's the abstract:

Anti-terrorism measures have led to increasing digital interception of private communications and to mass surveillance, the extent of which had been unseen until recently. When a few years ago the discussion started about how to deal with this phenomenon, the call for a new legal instrument quickly erupted. However, this the article demonstrates that this is not a blind spot of international law. Article 17 of the International Covenant on Civil and Political Rights guarantees the right to privacy and the protection against unlawful interference with correspondence. The Human Rights Committee which is entrusted with the interpretation of the Covenant has taken recent cyber-related developments as an opportunity to unpack the right to privacy in the context of its state reporting procedure. The article by Anja Seibert-Fohr describes and systematizes the Human Rights Committee’s interpretation of Article 17 of the International Covenant on Civil and Political Rights with respect to the protection of privacy against digital surveillance, meta data retention and foreign intelligence cooperation and outlines the respective legal standards. The author demonstrates that the Covenant provides the necessary legal ground to confront new technological challenges without ignoring the exigencies of the altering security situation. Safeguard procedures play a central role in this undertaking. The Committee, having identified various shortcomings in national legal frameworks, has specified the necessary safeguards to effectively protect the right to privacy against arbitrary interference. It has also clarified the territorial scope of protection under the Covenant which is not limited to domestic measures but also extents to transnational surveillance and digital intelligence sharing. The Committee thus has specified the meaning of Article 17 and laid important groundwork for the consideration of cyber-related issues. The author concludes with an outlook, describing new issues which the Committee will need to consider in the future, and makes general recommendations for the future conceptualization of the right to privacy in the digital age more generally.

Seibert-Fohr: The Human Rights Committee - Legacy and Promise

Anja Seibert-Fohr (Universität Heidelberg - Law; Member, Human Rights Committee) has posted The Human Rights Committee - Legacy and Promise (in International Human Rights: Human Rights Institutions, Tribunals and Courts - Legacy and Promise, Gerd Oberleitner ed., forthcoming). Here's the abstract:

The UN Human Rights Committee, which is recognized for its legal expertise in human rights law, belongs to the most prominent institutions for the oversight of international human rights. The Committee was the first universal body with a mandate to examine individual communications. Among the international treaty bodies it continues to receive the highest number of individual petitions. Through the course of its four decades of existence, the Committee has developed a considerable body of jurisprudence affecting the interpretation of human rights by domestic and international institutions, including the International Court of Justice.

The present book chapter introduces readers to the work of this quasi-judicial expert body from the perspective of a Committee member. It locates the Committee’s institutional place in the overall structure of the human rights system and describes current challenges and developments. The author offers an in-depth assessment of the Committee’s legacy and makes proposals on how the Committee can refine its procedures and methodology. In times of increasing challenges for international human rights, the Committee’s principal task is to defend the integrity of the Covenant, maintain a norm-based dialogue with the States parties and render the Covenant’s interpretation truly universal. In absence of an international human rights court, the Committee needs to preserve its legacy as a central legal player in universal human rights protection, reinforce the legitimacy of its decisions and exercise its functions in accordance with its mandate as a body composed of legally experienced and independent experts. This process also requires the involvement of other stakeholders and States parties who carry the responsibility for the Committee’s composition, independence and structural capacity. The author reminds States parties of their role as trustees of the universal protection of human rights and calls for an active complementarity approach in line with their erga omnes partes obligations. States parties are required to increase their commitments towards treaty implementation and enforcement both domestically and internationally. The author makes proposals on how to procedurally link the international and the domestic level and how States can play a more active role in the international enforcement of human rights.

Shikhelman: Diversity and Decision-Making in International Judicial Institutions

Vera Shikhelman (Univ. of Chicago - Law) has posted Diversity and Decision-Making in International Judicial Institutions: The United Nations Human Rights Committee as a Case Study (Berkeley Journal of International Law, forthcoming). Here's the abstract:

The lack of diversity in the background of the decision-makers in international judicial and quasi-judicial institutions has been widely criticized in recent years. It has been argued that the background of the decision-makers is too homogeneous and not representative of the international community as a whole. However, there is little empirical evidence on whether the background of the decision-makers actually influences their decision-making processes in the international context. This article uses the United Nations Human Rights Committee as a case study for testing empirically the influence on decisions of geographical origin, gender, domestic legal system and professional background.

The article finds certain voting patterns that are associated with geographical origin, domestic legal systems, professional background and possibly gender. This is especially true in cases where the Committee Members (CMs) want to protect the interests of their states, since the most significant voting pattern was found for CMs from Western states voting in favor of states from their regions in immigration cases. However, it is safe to say that on most issues the article did not find that the background of the CMs had significant influence on their voting patterns. The article also uses the United Nations Human Rights Committee as a case study to demonstrate the importance of diversity to the legitimacy of international institutions, beyond the practical implications of diversity on the decision-making process.

Shany: All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee (Journal of International Dispute Settlement, forthcoming). Here's the abstract:

The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines.

Part One of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs – application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Part Two then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Part Three concludes.

Ulfstein: The Human Rights Treaty Bodies and Legitimacy Challenges

Geir Ulfstein (Univ. of Oslo - Law) has posted The Human Rights Treaty Bodies and Legitimacy Challenges (in Legitimacy and International Courts, Nienke Grossman, Harlan Grant Cohen, Andreas Follesdal & Geir Ulfstein eds., forthcoming). Here's the abstract:

The United Nations human rights treaty bodies, such as the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Discrimination Against Women, oversee national implementation of international human rights obligations. This chapter discusses the legitimacy of the human rights treaty bodies’ court-like function of deciding cases on individual complaints.

McCall-Smith: Human Rights Treaty Bodies, Proceduralization and the Development of Human Rights Jus Commune

Kasey L McCall-Smith (Univ. of Edinburgh - Law) has posted Human Rights Treaty Bodies, Proceduralization and the Development of Human Rights Jus Commune. Here's the abstract:

The obligations set out in UN human rights treaties are open-textured and evolutionary, therefore they present a particular challenge in articulating the basis of a substantive breach that is universally applicable. Universal applicability, however, is a primary goal of international human rights and fundamental to the recognition of a jus commune of human rights. As the specialist supervisory mechanisms of the core UN human rights treaties, the human rights treaty bodies must balance the progressive realisation of rights against the historic state sensitivity to interference in domestic affairs, an exercise that has often put the treaty bodies at odds with states. Review of treaty body jurisprudence suggests that migration toward a procedural approach to human rights violations may resonate more naturally with states due to the simplicity of establishing procedural infractions. This observation stems from examining how treaty body jurisprudence is utilised in national judicial decisions. It is argued that proceduralized decisions aid in the establishment of human rights jus commune by slowly moving away from value-based determinations, a practice that sits more easily with States. This migration is reflected in two identifiable practices. The first sees states in breach of obligations based on the failure to adhere to rules of procedure or procedural obligations under a treaty. The second bases a breach determination on the procedural dimension of a substantive right. The lingering question is whether this is a positive development in the overall protection of human rights and how this impacts the growing common law of human rights. An examination of treaty body jurisprudence across the UN treaty bodies will allow the proceduralization of human rights at the international level to be evaluated in terms of individual human rights protection. The tedious balance that must be maintained in order to advance the human rights jus commune should be evaluated from a universal perspective to assess whether proceduralization of rights adds to or detracts from the overall human rights project.

Shany: The Effectiveness of the Human Rights Committee and the Treaty Body Reform

Yuval Shany (Hebrew Univ. of Jerusalem - Law) has posted The Effectiveness of the Human Rights Committee and the Treaty Body Reform (in Der Staat im Recht. Festschrift für Eckart Klein Zum 70. Geburtstag, M. Breuer, A. Epiney, A. Haratsch, S. Schmahl, & N. Weiß eds., forthcoming). Here's the abstract:

A recent report issued by the High Commissioner for Human Rights (hereinafter ‘the Pillay Report’), as part of a process designed to strengthen the UN human rights treaty bodies, suggests that the HRC, like the other treaty bodies, suffers from a number of serious chronic problems. In particular, the positive reputation of the HRC (and some of the other treaty bodies) has not translated itself into high levels of compliance with the state-parties’ procedural reporting obligations; nor, perhaps, to a high degree of compliance with the Committee’s substantive recommendations.In addition, the HRC and the other treaty bodies face significant backlogs in their work, and have been forced to reduce the average time allocated to the review of each country report – endangering thereby the quality of their output. The tension between the widely perceived quality of the HRC’s work, on the one hand. and the serious difficulties the Committee encounters in adequately performing its tasks, on the other hand, complicates attempts to assess its overall record of achievement. Put differently, it is difficult to ascertain whether the HRC is, on the whole, an effective body. In any event, whether the HRC is considered more or less effective, one may still discuss the merits or demerits of specific proposals aimed at improving its effectiveness.

This chapter will apply to the study of the HRC the goal-based approach to evaluating the effectiveness of international institutions developed by the present author elsewhere.In Part One, I will briefly present the goal-based approach, and identify within its framework the principal goals of the HRC. In Part Two, I will evaluate the main findings of the Pillay Report in light of the goal-based approach. While I find many of the recommendations found in the Pillay Report conducive to strengthening the effectiveness of the HRC and other treaty bodies, I criticize some recommendations as problematic for: (1) trading breadth (increase in the number of reviewed reports) for depth of review, and therefore producing arguably only limited effectiveness dividends; and (2) accepting as fait accompli some of the most inefficient features of the existing treaty body system (such as the limited-in-time expert meeting sessions). Part Three concludes.

Milanović: The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity

Marko Milanović (Belgrade Centre for Human Rights) has posted The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity (Goettingen Journal of International Law, Vol. 1, No. 3, p. 519, 2009). Here's the abstract:

The article provides a critical review of the Human Rights Committee's views in Sayadi v. Belgium, a case dealing with United Nations Security Council (UNSC) terrorist blacklists. The case raised many complex issues of international law, most notably the question whether UNSC resolutions can prevail over human rights treaties by virtue of Art. 103 of the UN Charter. This issue – one of truly fundamental importance – has cropped up in several important recent cases which either addressed it or avoided it, including Kadi before the courts of the European Union, Al-Jedda before the UK House of Lords, and Behrami before the European Court of Human Rights. Regrettably, the Committee's decision did not do justice to the complexity and the gravity of the matters raised before it, as it failed to tackle the norm conflict issue head on and ignored the Charter's supremacy clause altogether. Such an approach advances neither the cause of human rights, nor the coherence of international law as a legal system.

HRC: Draft General Comment 33

The Human Rights Committee has posted the current draft of its General Comment 33 and is seeking comments, in particular from States parties to the International Covenant on Civil and Political Rights, UN specialised agencies, and non-governmental organizations. Details concerning the submission of comments can be found here.

Human Rights Committee Election

Today, the States Parties to the International Covenant on Civil and Political Rights elected nine individuals to serve on the Human Rights Committee for four-year terms beginning January 1, 2009. They were: Michael O'Flaherty (Ireland); Rajsoomer Lallah (Mauritius); Mohammed Ayat (Morocco); Krister Thelin (Sweden); Fabian Omar Salvioli (Argentina); Ahmad Amin Fathalla (Egypt); Nigel Rodley (United Kingdom); Rafael Rivas Posada (Colombia); and Lazhari Bouzid (Algeria). The nine other members of the Committee, whose terms expire on December 31, 2008, are: Abdelfattah Amor (Tunisia); Prafullachandra Bhagwati (India); Christine Chanet (France); Yuji Iwasawa (Japan); Helen Keller (Switzerland); Zonke Zanele Majodina (South Africa); Iulia Antonoanella Motoc (Romania); Jóse Luis Pérez Sanchez-Cerro (Peru); and Ruth Wedgwood (United States).