The Human Rights Committee and the Right of Individual Communication

Law and Practice

P. R. Ghandhi

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429627156
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book was originally published in 1998. Protection of Human Rights both at a regional and at an international level is now a major pre-occupation of International Law. The International Covenant on Civil and Political Rights 1966 is probably the most important single universal human rights instrument of our time, which both sets standards and ensures compliance with them, through measures of implementation. More than 135 States have accepted the obligations imposed by this Covenant. This book provides a comprehensive analysis of the provisions of the Optional Protocol, which enshrines the right of individual communication and the jurisprudence developed thereunder by the Human Rights Committee, which is the supervisory body of this treaty regime. It analyses the effectiveness of the committee in protecting the rights of individuals under the Optional Protocol.

The book will be of particular interest to scholars engaged in the teaching of and research in the international protection of human rights. It will appeal to undergraduate and postgraduate law students. Practitioners in the international human rights field will also find it valuable. It should be of interest to international N.G.O.s and governmental officials engaged upon ensuring effective compliance with our international rights obligations.

1 Introduction

The International Covenant on Civil and Political Rights and the Optional Protocol thereto, adopted by the General Assembly of the United Nations in Resolution 2200A(XXI)¹ of 16 December 1966 and opened for signature and ratification in New York on 19 December 1966, entered into force on 23 March 1976 in accordance with the provisions of articles 49 of the Covenant and 9 of the Optional Protocol respectively. As at 1 August 1997,² 138 States had ratified or acceded to the Covenant 92 States had ratified or acceded to the Optional Protocol. Also, 45 States had made the declaration envisaged in article 41(1) of the Covenant, which entered into force on 28 March 1979.

The Second Optional Protocol aiming at the abolition of the death penalty was adopted and opened for signature, ratification or accession by the General Assembly in Resolution 44/128 of 15 December 1989. It entered into force on 11 July 1991 in accordance with the provisions of its article 8. As at 1 August 1997, there were 30 States Parties to this instrument.

It is impossible to understand the significance of the O.P. for the rights of individuals in international law without some appreciation of its drafting history.³ This is linked inextricably with the drafting history of the measures of implementation as a whole. Accordingly, some attention will have to be drawn to the origins of the provisions that became article 40 (the reporting system) and articles 41-42 (the inter-State procedure). However, the primary focus when considering the input of the Third Committee of the General Assembly in 1966 will be on the development of the right of individual communication. Between January 1947 and December 1966 primary responsibility for the drafting, not just of the O.P. but also the I.C.C.P.R. and the measures of implementation contained therein, was divided between the Commission on Human Rights⁴ (1947-1954) and the Third Committee of the General Assembly⁵ (1954-1966).

At its very first session, held between January and February 1947 the Commission on Human Rights stated that it 'was not at present in a position to formulate precisely its views concerning the means of ensuring the observance of the rights to be included in the International Bill of Rights'.⁶ In March 1947 E.C.O.S.O.C. appointed an eight-member Drafting Committee of the Commission on Human Rights (Australia, Chile, China, France, Lebanon, USSR, U.K. and the U.S.A.).⁷ The Drafting Committee met for its first session between 9-15 June 1947 and had before it as a basis for discussion a Secretariat Outline prepared by the UN Division of Human Rights⁸ and a U.K. draft Convention.⁹ Before the commencement of discussion, both drafts were redrafted and rearranged by a three-member Working Group (France, Lebanon, U.K.). It is interesting to observe in passing what measures of implementation the U.K. draft proposed: on receipt of a request from the Secretary-General made by authority of a resolution of the GA (which under a draft resolution accompanying the convention would have delegated its authority in this matter to the Commission on Human Rights) a State Party would have been obliged to supply an explanation, certified by its highest legal authorities, of the manner in which its law gave effect to any provisions of the Convention. Any failure of a State to fulfil its obligations under the Convention would have been 'an injury to the community of States and a matter of concern to the United Nations as the community of States organised under the rule of law'. Furthermore, 'any one of them which is found by a resolution of the General Assembly adopted by a two-thirds majority persistently to have violated the provisions of this Bill of Rights should be deemed to have violated the principles of the United Nations and therefore liable to expulsion from the Organisation under article 6 of the Charter'.¹⁰ Humphrey remarks acidly that '[the U.K.'s] sponsorship of this draft Convention probably represented the highest point ever achieved by the United Kingdom in its approach to the protection of human rights by the United Nations'.¹¹ At this first meeting of the Drafting Committee the question of implementation of the proposed Bill of Rights was considered. The Report of the Drafting Committee shows that a number of different proposals were advanced by members of the Committee.¹² Schwelb¹³ has singled out for particular mention the following proposals: (1) international censure which might be achieved by petitions addressed to the United Nations by individuals and groups; (2) the extension of the powers of the Commission on Human Rights or the creation of new machinery within the framework of the UN to receive, collate, examine and deal with communications alleging the violation of human rights; (3) discussion in the General Assembly; and (4) the establishment of an International Court of Justice.¹⁴ To these must be added the U.K. proposal already mentioned - that any State Party which persistently violated the rights protected should be expelled from the UN.

At its second session in December 1947 the Commission on Human Rights established a six-member Working Group on Implementation (5-9 December 1947). The representative of India (Mrs Mehta) was chairman and the representative of Belgium (Professor Dehousse) was rapporteur. The Working Group produced an extensive report.¹⁵ This report proposed the establishment of a Standing Committee composed of independent, nongovernmental individuals to supervise observance of the provisions of the Convention or Conventions. It was proposed that such a Standing Committee would be a permanent body of experts which would exercise its jurisdiction prior to any judicial proceedings. The Commission took no action on the 1947 Report of the working Group on Implementation. It simply forwarded it to E.C.O.S.O.C.¹⁶

On the night of 10 December 1948 the General Assembly adopted the Universal Declaration of Human Rights at its Paris session. At the same time it also requested the Commission on Human Rights, through the E.C.O.S.O.C., to continue to give priority treatment to its work on the preparation of a draft Covenant on Human Rights and draft measures of implementation and to give further attention to the question of petitions when studying the draft Covenant and measures of implementation.¹⁷ The Commission on Human Rights continued its work accordingly but at its fifth session could not reach agreement on a draft text on implementation.¹⁸ The Report of the Commission on Human Rights simply delineates proposals on measures of implementation put forward by France, Guatemala and India, a joint U.K. and US proposal, an Australian proposal for an International Court of Human Rights and a statement by the USSR explaining why it regarded any system of international supervision by way of implementation to be completely unacceptable.¹⁹

The Commission on Human Rights met again in March-May 1950 for its sixth session when the first draft of the articles on the measures of implementation emerged.²⁰ The draft proposed the creation of a permanent 'Human Rights Committee' 'with a view to the implementation of the International Covenant on Human Rights'. This idea of a permanent body was approved by seven votes to six (with one abstention). Disputes between States Parties would be referred to it. Its function was to ascertain the facts and to make available its good offices with a view to a friendly solution of the matter on the basis of respect for human rights. The proposal to create a permanent 'Human Rights Committee' resulted from the rejection by seven votes to five (with one abstention) of a joint U.K. and US proposal under which the suggested organ would not have been permanent but established ad hoc for each individual case by selection from an existing panel of individuals.

The 1950 session also decided by eight votes to five (with one abstention) that the Human Rights Committee be elected by the States Parties to the Covenant and rejected an alternative proposal that its members should be elected by the ICJ. This decision was reversed in the 1951 session but re-introduced by the General Assembly in 1966 and is contained in article 29 of the I.C.C.P.R.²¹ Approved unanimously at this session was the principle that the draft Covenant should include provisions on inter-State complaints: this finds expression in articles 41 and 42 of the I.C.C.P.R. The Commission on Human Rights rejected all other proposals giving anyone or anybody else a right of access to the Human Rights Committee: thus, it rejected by seven votes to four (with three abstentions) the proposal that N.G.O.s should have the right to petition the Human Rights Committee. A proposal that would have given the right of individual petition was defeated by eight votes to three (with three abstentions). Also rejected by seven votes to one (with five abstentions) was a proposal that would have included within the functions of the Human Rights Committee a general supervisory rôle over the observance of the provisions of the Covenant.

At this stage, the E.C.O.S.O.C., having examined the work of the Commission on Human Rights at its 1950 session, decided that no further progress could be made without policy directives from the General Assembly on a number of key issues: for our purposes 'the adequacy of the articles relating to implementation' was the most important.²² The General Assembly duly delivered its decision by majority on these issues: in particular, it requested the Commission on Human Rights to proceed with the consideration of provisions for the receipt and examination of petitions from individuals and N.G.O.s in regard to alleged violations of the Covenant, either in the draft Covenant itself or in attached Protocols.²³

Although the 1951 session of the Commission on Human Rights was much...