CASE LAW OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE 1977-2007:
A HANDBOOK
by Jakob Th. Möller * and Alfred de Zayas**
______
* From 1971 to 1996 Chief of the Communications Unit (later Section/Branch) at the United Nations Division of Human Rights/Centre for Human Rights/Office of the High Commissioner for Human Rights until retirement from United Nations service in October 1996. Judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo, established pursuant to the Dayton Peace Agreement (1996-2003). President of the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (2004), alternate member of the United Nations Sub-Commission on the Promotion and Protection of Human Rights (2004-2006).
** Professor of international law, Geneva School of Diplomacy. 2005--. Visiting Professor of law, Institut Universitaire de Hautes Etudes Internationales, Geneva (2004). Retired senior human rights officer and deputy to the Chief of the Communications Branch of the United Nations Centre for Human Rights (1994-96); Secretary, Human Rights Committee (1998-2000); chief of the Petitions Unit (2000-2002) at the Office of the United Nations High Commissioner for Human Rights; visiting professor of international Law, DePaul University College of Law, Chicago (1993-94); visiting Professor of international law, University of British Columbia, Vancouver (2003).
This book is dedicated to Torkel Opsahl (1931-1993)***, Member of the Human Rights Committee (1977-1986), Professor of Law, University of Oslo, Human Rights Activist and Friend.
*** In 1987 the authors together with the late Professor Torkel Opsahl published an article under the title "Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee" in the German Yearbook of International Law, covering the jurisprudence of the Committee through its 28th session in July 1986. The article was subsequently translated and published in Dutch, Finnish, Japanese, Serbo-Croat and Spanish. Torkel was a distinguished member of the Human Rights Committee and was totally devoted to the cause of human rights. He passed away quite unexpectedly in September 1993, in the middle of his work, at his office in the Palais des Nations in Geneva, where he was Acting Chairman of the United Nations War Crimes Commission for the Former Yugoslavia.
Table of Contents
Foreword byAndreas Mavrommatis, first Chairperson of the United Nations Human Rights Committee 1977-1987
Table of abbreviations
Chapter I: Jurisdiction and Activities
1)The individual in international law
2)Establishment and responsibilities of the Human Rights Committee
3)The Committee's caseload
4) Duration of the procedure and status of communications
5) Slow growth of Committee’s caseload, lack of sufficient Secretariat support
Chapter II: Methods of work
1)Registration of cases
2)Urgent action, interim measures of protection
3)Special Rapporteur on New Communications
4)Working Group on Communications
5)Case Rapporteurs
6)Confidentiality
7)Joinder of similar communications
8)Severance of communications
9)Review of a decision declaring a communication admissible
10) Resubmission of a case previously declared inadmissible
11) Joint examination of admissibility and merits
12) Evidence and burden of proof
13) Individual concurring and dissenting opinions
14) Withdrawal of Committee members from consideration of casesunder the Optional Protocol
15) Oral hearings
16) Representation of the parties
17) Amici Curiae
18) Costs and language of submission
19) Format and language of Committee decisions
20) State responsibility
21) Security of complainants and counsel
22) Emerging jurisprudence (hard law/soft law)
23) General Comments as a restatement of case law
Chapter III:Admissibility criteria under the Optional Protocol
1)Standing of the author (admissibility ratione personae)
2)Authority to act on behalf of a victim
3)Complainants subject to the State party’s jurisdiction
4)Concept of “victim” under the Optional Protocol
5)No hypothetical violation
6)Preclusion ratione loci
7)Preclusionratione temporis
8)Preclusionratione materiae
9)Reservations by States parties
10) Competence of the Committee vis à vis national law and decisions
11) Substantiation of allegations
12) Abuse of the right of submission
13) Unreasonable delay of submission
14) Preclusion under article 5(2)(a) of the Optional Protocol
15) Exhaustion of domestic remedies (Optional Protocol article 5 (2)(b))
Chapter IV. Substantive Issues under the Covenant
Part I
Article 1: Self-determination
Part II
Article 2: General non-discrimination clause and right to a remedy
Article 3: Gender equality
Article 4: Derogation
1) State of emergency
2) Non-derogable rights
3) Notification
4) General Comments on article 4
Article 5: Best practices
Part III
Article 6: The Right to Life
1) Extra-Judicial executions
2) Disappeared persons
3) Capital punishment
4) Mandatory death sentence
5) Most serious crimes
6) Right to request pardon
7) Extradition to face the death penalty
8) Deportation to face the death penalty
Article 7: The right not to be subjected to torture
1) Physical torture and ill-treatment
2) Prolonged incommunicado detention
3) Mental anguish
4) Method of judicial execution
5) Death row phenomenon
6) Mental anguish following conviction in an unfair trial
7) Deportation to face possible torture
Article 8: Prohibition of slavery and forced labour
1) Military service as a form of forced labour
2) Special duties of certain professions
3) Compulsory work of persons under detention
4) Employment programmes for the unemployed
Article 9: The right to liberty and security of person
1) Security of person
2) Concept of “arbitrariness”
3) Continued detention after completion of term of imprisonment
4) Disappearance
5) State abduction
6) Psychiatric detention
7) Detention pending deportation or during asylum proceedings
8) Right to be informed, at the time of arrest, of the reasons for arrest
9) The right to be brought promptly before a judge and to be tried within a reasonable time
10) The right to bail
11) The right to challenge the lawfulness of one’s arrest and detention(habeas corpus)
12) Detention in military context
13) Right to compensation for unlawful arrest or detention
Article 10: The right to be treated humanely during deprivation of liberty
1) Humane treatment during detention (article 10(1))
--Uruguay years
--Jamaica years
-- Post-Jamaica jurisprudence
2) Segregation of detainees (article 10(2))
3) Juveniles and rehabilitation of detainees (article 10(3))
Article 11: Prohibition of imprisonment for inability to fulfil a contractual
obligation
Article 12: The right to freedom of movement
1) Choice of residence (article 12(1))
2) Right to leave one’s own country, right to a passport (article 12(2)
3) Limitations in the enjoyment of the right of freedom of movement (article 12(3))
4) Right to enter one's own country (article 12(4))
Article 13: The right of an alien not to be expelled arbitrarily
1) Right to a procedure
2) National security exception
3) Deportation and extradition of drug offenders
4) Deportation of suspected terrorists
Article 14: The right to a fair hearing
1) Fair and public hearing (article 14(1))
--The concept of “suit at law”
--Competent, independent and impartial tribunal
-- Principle of non-arbitrariness
-- Access to court
-- Equality of arms
-- Public hearing
-- Expeditious proceedings
-- Legal aid
2) Presumption of innocence (article 14(2))
3) Minimum guarantees in the determination of any criminal charge (article 14(3))
(a) Right to be informed of the charges
(b) Access to legal counsel and right to choose one’s counsel
-- Adequate time and facilities
-- Access to documentation
-- Translation of documents
(c) Right to be tried without undue delay
(d) Right to legal representation
-- Counsel of one’s choosing
-- Representation during preliminary investigation
-- Free legal assistance
-- Right to defend oneself in person
(e) Right to examine witnesses
(f) Right to free assistance of an interpreter
(g) Right not to be compelled to testify against oneself
4) Juvenile offenders and rehabilitation (article 14(4))
5) Right to review of conviction and sentence (article 14(5))
--Time element
-- Mechanism for second instance appeal
-- Review without oral hearing
-- Factual retrial
-- Right to appeal in capital cases
-- Open issues
6) Right to compensation for miscarriage of justice (article 14(6))
7) Ne bis in idem (article 14(7))
Article 15: Nullum crimen sine lege, Nulla poena sine lege
1) Principle of non-retroactivity of penal legislation
2) Procedural changes in criminal law
3) Prosecution for acts committed in a defunct State
4) Retroactive anti-terrorist legislation
Article 16: The right to recognition as a person before the law
Article 17: Right to privacy, family and reputation
1) Concept of family
2) Family life and expulsion
3) Family reunification
4) Family life after divorce or separation
5) Family, privacy and burial grounds
6) Privacy and change of name
7) Privacy and sexual orientation
8) Privacy and abortion
9) Honour and reputation
10) Surveillance of correspondence and telephone communications
11) Potential of article 17
Article 18: Freedom of thought, conscience and religion
1) Freedom of religion in the school system
2) Manifestation of religion
3) Conscientious objection to military service, military activities and expenditures
Article 19: Freedom of expression
1) Restrictions of political expression
2) Radio and television
3) Public demonstrations
4) Hunger strike as a form of expression
5) Restrictions on commercial speech
6) Criminal insult legislation, prohibition of criticizing the head of state
7) Contempt of court as a restriction of expression
8) Incitement to racial hatred
9) Expression of offensive historical opinions
Article 20: Prohibition of war propaganda and the right to protection from advocacy of racial or religious hatred
1) War Propaganda
2) “Hate Speech”
Article 21: Peaceful assembly
Article 22: Freedom of association
Article 23: Protection of the family
1) Concept of the family
2) Family life and visiting rights of divorced or separated parents
3) Family life and separation through expulsion of family member
4) Same sex family life
Article 24: Rights of the child
Article 25: Right to take part in political activity; equal
access to public service
1) Right to representation (article 25(a))
2) Right to run for office (article 25 (b))
3) Access to public service (article 25 (c))
Article 26: The right to equality and the prohibition of discrimination
1) Early jurisprudence
2) Autonomous right to equality
3) Non-discrimination with regard to social security contributions
4) Non-discrimination on account of age
5) Non-discrimination with regard to the use of language
6) Non-discrimination with regard to sexual orientation
7) Gender discrimination with regard to surnames
8) Non-discrimination in the context of conscription and military service
9) Non-discrimination in the context of public and private schools
10) Non-discrimination in the administration of justice
11) Non-discrimination between citizens and non-citizens
12) Non-discrimination in respect of restitution or compensation for private property
13) Arbitrariness in property disputes
14) Inequality in the allocation of fishing quotas
Article 27: Protection of minorities
1) Rights of indigenous peoples
2) Rights of linguistic minorities
3) Affirmative action
Chapter V. Remedies called for in the Committee's Views
Human Rights Committee 1979 Report
HRC 1980 Report
HRC 1981 Report
HRC 1982 Report
HRC 1983 Report
HRC 1984 Report
HRC 1985 Report
HRC 1986 Report
HRC 1987 Report
HRC 1988 Report
HRC 1989 Report
HRC 1990 Report
HRC 1991 Report
HRC 1992 Report
HRC 1993 Report
HRC 1994 Report
HRC 1995 Report
HRC 1996 Report
HRC 1997 Report
HRC 1998 Report
HRC 1999 Report
HRC 2000 Report
HRC 2001 Report
HRC 2002 Report
HRC 2003 Report
HRC 2004 Report
HRC 2004 Report
HRC 2005 Report
HRC 2006 Report
HRC 2007 Report
Categories of recommended remedies
Chapter VI. Follow-Up Procedure
1) Committee’s gradual expression of a follow-up interest
2) Legal basis for the Committee’s follow-up competence
3) Mandate of the Special Rapporteur on Follow-Up
4) Responses received by the Committee
5) Remedies provided by States parties
6) Problems of implementation
7) Enabling legislation
8) Follow-up on the basis of article 40 of the Covenant
BIBLIOGRAPHY
APPENDICES:
States parties to the Optional Protocol (as at 31 July 2007)
Members of the Human Rights Committee 1977-2007
Rules of Procedure of the Human Rights Committee concerning the
Optional Protocol Procedure (as amended up to 2007)
Mandate of the Special Rapporteur on New Communications
Mandate of the Special Rapporteur on Follow-Up of Views
Status of communications
INDEX
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