CH, JM. Discussion Group 7
What kinds of complaints are brought before the ICCPR? How does it differ from other treaty regimes?
One of the components of the ICCPR Human Rights Committee is an optional protocol (ratified by 95 of the 144 states as of March 2000), with a critical provision stating that communications must be ‘from individuals…who claim to be victims of a violation’ by a state party to the Protocol ‘of any rights set forth in the Covenant’. The Committee then evaluates these individual communications, granted that the matter is ‘not being examined under another procedure of international investigation or settlement’, in closed meetings that take all written information available into account. These proceedings are a) meant to be distinct from any current judicial proceedings in the state where the dispute originated, b) do not need to address systematic violations of human rights, c) are written only, d) are closed to the public, and e) the ‘views’ agreed upon, which are ultimately made available to each party involved, are not binding.
While the Committee often comes to the conclusion that specific human rights have been violated, and sometimes provides recommendations to the parties committing violations, the Committee has no binding legal jurisdiction. And while the Committee urges the State party to submit ‘information about the measures taken to give effect to the Committee’s view’ within ninety days after the ‘view’ is disclosed, the Protocol does not enforce this wish. Only about thirty percent of the replies received are considered satisfactory, and many states do not even submit information. Therefore, the case can be considered closed as soon as the report has been forwarded to the parties. The Committee also faces an increasing number of caseloads (due to rising public awareness of the procedure and more state parties involved) and dwindling resources. Thus, the committee can unfortunately only formulate about thirty ‘views’ per year.
Does the Committee seem to be effective? Some things to consider: 1) The fact that the concentration of complaints among states seems paradoxical, since aside from Uruguay and Jamaica (which comprise half of the cases about which the Committee submitted ‘views’) the states that the Committee is examining most often are also the states whose citizens seem to enjoy freedom under the rule of law and the protection of human rights. This discrepancy may be attributed to a citizen’s fear to submit information to the committee, a general lack of awareness of the existence of the Committee in some states, insufficient resources (a citizen in some states may not be able to contact or pay for a lawyer), or perhaps because the person thinks that submitting a report to the ICCPR Committee would be useless given the state of the government in which he/she lives. 2) The fact that some decisions are made by a process of consensus (which can maintain a cooperative approach and anonymity of decision, but can also limit and undermine separate opinions). 3) The fact that the monitoring of human rights violations through the Protocol becomes a secondary function, and that therefore a better alternative may be to build and strengthen regional complaints systems. 4) The nature of the Committee as a nonbinding international organization often means that the Committee’s desires are not meant. Some states, such as Sierra Leone and the United States (in the Breard case) have not responded to requests of the Committee, by not postpone sentences of capital punishment.
Many issues have arisen as to how the Committee should function. The second section details several of these issues of procedure. One of these concerns is centered on the issue of hate speech and the difficult choice between the right to freedom of speech and the right to not be threatened by this hate speech. This issue was brought up in the case of a Danish reporter who did a television program on white supremacist groups that included an interview with several members of an organization that expounded these views. The much-edited interview played on TV, and inspired wrath in the groups attacked by the views that were expressed. Does the media have the right to report on offensive groups and ideas or should it edit out hateful content? Is there a middle ground (i.e. a statement saying that these views are not socially acceptable or valid)? Does this middle ground take away from the media’s ability to be unbiased and non-judgmental? A case was also made that hate speech in the media is dangerous and should not be carefully guarded against by looking at Rwandan propaganda efforts by the media during the Rwandan genocide. This argument stated that the Rwandan media’s efforts led peasant Hutus to slaughter Tutsis. Does the extreme power and control of the expression of opinion possessed by the media make more stringent controls on hate speech necessary?
A second issue raised is the issue of the committee’s ability to challenge standards between different countries. The conflict portrayed was between the governments of the U.S. and Canada. Canada was asked by the U.S. to extradite a man who had committed a series of murders in California so that he could be tried and, if found guilty, possibly be put to death in the gas chamber. Canada does not have the institution of capital punishment, but interpreted the ICCPR as saying that unless death by gas asphyxiation had been declared a human rights offense by the international community, it was okay to extradite the man. The man challenged this choice, claiming that gas asphyxiation was a cruel form of capital punishment, so Canada could not extradite him. This raises issues of the ability of the committee to enforce standards on a very precise and contentious issue within various cultural and legal frameworks. Should the committee be allowed to decide what constitutes a humane form of capital punishment in a country that has democratically established criteria for what is humane and what is inhumane? Should an authoritarian-style government be treated differently?
The second section of the reading concludes with an opinion about the proper role of the Committee. The authors argue that the most important role for the committee is to provide an area of dialogue for the various actors in the human rights system rather than actually impose judgments on certain cases. To this end, the authors argue that the Committee’s procedures should be more open, with accessible, easy-to-read decisions and a discretionary jurisdiction (similar to the U.S. Supreme Court) rather than a mandatory jurisdiction. They feel this would allow the court to do a better job of solving the more contentious issues rather than focusing on individual cases. This raises a few simple questions. What should the role of the Committee be? Is a mandatory jurisdiction or discretionary jurisdiction better?
In addition to the ICCPR Committee, five other treaty bodies have been formed to implement the treaty or monitor state conduct. They are the Committee on Economic, Social and Cultural Rights, The Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, and the Committee on the Rights of the Child.
Primary activity is the consideration of states reports (many of these treaties function similarly, with similar rules to the ICCPR treaty)
The third section of the reading deals with the reporting and complaints structures of the various international human rights treaties. One of the major forms of this is the states’ reports. States have to file reports within the first two years of becoming party to a treaty and then every 5 years after that. These reports have caused certain problems to arise, which have effected certain reforms. One such reform is the practice of allowing states to send representatives to work with the Committee in processing the report. A second is the procedure of examining states who don’t file reports to make sure that the treaties are being followed. A third reform is the growing NGO involvement in the process, as they attempt to monitor governments. However, certain problems remain pressing to this day. For example, Non-reporting is still rampant, as is the practice of superficial reporting. Countries have also increasingly had problems with the many treaty bodies, finding it difficult to satisfy the many different criteria of each treaty body. Some possible solutions to this include reducing the number of treaty committees, filing a single report to all committees or breaking up the report process into individual reporting on specific issues. Are there any other solutions to these problems?
A second institution is that of on-site visits. The Convention against Torture provides a way in which the committee can ask for reports or even visit a country on a specific issue that has raised some concern outside of the normal report schedule. Other treaties include similar provisions for a more intrusive monitoring of participating countries. Do these visits conflict with national sovereignty? How so?
A third sections deals with the outdated practice of interstate complaints. This was originally intended to allow states to file complaints against other states that violated international norms. However, this process has never been used, and thus is not an important piece of the international human rights reporting procedures.
The reading also talks about individual complaints against a country. This allows individuals within countries a way to ensure that states do not break rules set by treaties. These complaints play an important part in ensuring that countries do not secretly break rules because individual citizens can make the international community aware of these violations.