CH, HM, AP. Group 6 Response

The UN currently has 6 treaty organs, which are distinguished from Charter organs in that they are not created under the UN charter, but are mandated by the 6 universal human rights treaties.

The ICCPR Human Rights Committee is a treaty organ created by Articles 28-45 of the International Covenant on Civil and Political Rights (1976). It has 3 dominant functions: 1. States submit reports to the ICCPR Committee on measures taken and progress made in meeting the rights stipulated by the Covenant, 2. The Committee must ‘transmit such general comments as it may consider appropriate’ back to these states, 3. The Committee is also authorized to receive communications from individuals claiming to be victims of violations by state parties, and to forward its views about these communications to the individuals and the states concerned.
The functions outlined for the Committee in the ICCPR Covenant took a long time to agree upon, particularly in light of the Cold War ideological conflicts and debates about protecting state sovereignty. The result is a compromise between those States who favored strong international measures and those who emphasized the primacy of national sovereignty, and therefore many issues about the functioning of the Committee were left unresolved by Covenant. Some recent developments in the Committee’s approach to reports are that the Committee may now request certain states to issue ‘emergency’ reports about a newly developed situations (eg Iraq, Yugoslavia), it now supports the suggestion that human rights bodies be able to bring violations directly to the attention of the Security Council, and finally, it may be possible for the Committee to send a ‘mission’ to certain states in cases where the Committee was unable to obtain required information.

The Committee is composed of 18 members, who must have ‘high moral character and recognized competence in the field of human rights’, and who represent an equitable geographical distribution. Most have some form of legal experience, and they are elected to serve in their personal capacity as experts, as opposed to as state ambassadors. The Committee meets 3 times a year, for 3 weeks each time. Most meetings are public, however only a few outsiders and representatives of NGOs tend to come. Decisions taken by the Committee should be by majority vote, but all decisions to date have actually been taken by consensus.

Two questions arise as a consequence of the structure of the Committee. First is the issue of to what extent the ‘experts’ really act independently of their government’s interests, considering that some come from authoritarian, single-party states, and most must continue to hold part-time jobs, often for their governments. Second, does the practice of decision by consensus cause undue compromise, blunting of positions and failure to take bold steps. Another more pressing problem is that of the reports: They are supposed to be presented by states every five years, to be prepared following Committee guidelines. However, the greatest weakness of the system, according to Thomas Buergenthal, is the failure of certain states to submit their reports on time. Furthermore, if all the states did submit their reports, the Committee would not have time to process them during their 3 yearly meetings. What are the benefits and liabilities of reporting systems?

The Concluding Observations of the Committee examine positive aspects, factors and difficulties affecting implementation of the Covenant, and principal areas of concern and recommendations for each country. In particular, the chapter examines Chile, Iraq, Israel, Japan, Poland, Senegal, Sudan and the United States of America, wherein it praises states which have eliminated the death penalty, and disapproves states which criminalize abortions and homosexual relations, discriminate against groups on the basis of religion, gender or ethnicity, operate under a government that lacks transparency and accountability, or permit torture, death penalty and police brutality.

What legal action can be taken to pressure states to follow recommendations? How much authority does the Committee hold? Despite sanctions, the committee expects Iraq to implement obligations under the Covenant, but Are there circumstances where might a state be excused from such obligations because of sanctions? If so, what other measures could be taken? States like the U.S. and Japan legally forbid discrimination but, in practice, gender and racial inequalities are very prevalent. The Covenant has only vague recommendations of “eliminating discriminatory attitudes.” What steps, beyond legal action, can be taken to eliminate discrimination, and is the state accountable for this?

Article 40 of the ICCPR states under section 4 that the Committee shall study states reports and “transmit its reports, and such general comments as it may consider appropriate, to the States Parties” (1389). This vague wording allows for various understandings of the purposes of the General Comments, and the Comments have so far taken on two distinct types. The first has the intention of chastising vague reports and outlining proper ways to report state’s steps towards fulfilling the requirements of the ICCPR. The second is concerned with clarifying the meanings of certain articles and providing detailed interpretations of the types of rights involved and corresponding government responsibilities. In an extreme case, a General Comment attempted to create a new article in the bold statement, advocating, “The production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity” (735). It is obvious that General Comments are more specifically prescriptive than the original covenant. In this way the comments attempt to remedy the ambiguous nature of the ICCPR and lay down officially sanctioned interpretations and requirements. Do you feel that the more explicit nature of the Comments is a reasonable and effective method for increasing accountability? Do the Comments overstep their boundaries?



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