18 Overview of the Human Rights Committee (ICCPR)

Prof. Gudmundur Eiriksson

Introduction

The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights (ICCPR) by its States parties.

All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after becoming party to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”.

In addition to the reporting procedure, article 41 of the Covenant provides for the Committee to consider inter-state complaints. Furthermore, the First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol.

The full competence of the Committee extends to the Second Optional Protocol to the Covenant on the abolition of the death penalty with regard to States who have accepted the Protocol.

The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues or its methods of work.

The Committee meets in Geneva and normally holds three sessions per year.

Learning Outcomes

• To get an overview of the ICCPR.
• To understand the relationship between the ICCPR and the Human Rights Committee.
• To understand the various supervisory mechanism of the ICCPR.

Membership

The Human Rights Committee is composed of 18 independent experts who are persons of high moral character and recognized competence in the field of human rights. Members are elected for a term of four years by States parties in accordance with articles 28 to 39 of the Covenant. Members serve in their personal capacity and may be re-elected if nominated.

The ICCPR and the Human Rights Committee

The ICCPR was adopted by the United Nations General Assembly in Resolution 2200 A (XXI) of 16 December 1966. It entered into force on 23 March 1976. As of June 2015, 168 states were party to the Covenant.

Part I of the Covenant contains only one article, Article 1, on the right to self-determination, which is identical to Article 1 ICESCR. Part II of the Covenant contains Articles 2 to 5, which refer to the nature of obligations, the territorial and personal scope of the Covenant and the principle of non-discrimination (Article 2) which is complemented by Article 3, guaranteeing the equality between men and women in the enjoyment of the Covenant rights. Article 4 allows states to take measures derogating from their obligations under the Covenant and Article 5 establishes a prohibition of abuse of rights (Article 5(1)) and a saving clause (Article 5(2)). Part III of the Covenant contains the following substantive rights: the right to life (Article 6); freedom from torture, inhuman and degrading treatment or punishment (Article 7); freedom from slavery, servitude and forced labour (Article 8); rights to liberty and security of the person (Article 9); right of detained persons to humane treatment (Article 10); freedom from imprisonment for inability to fulfil a contract (Article 11); freedom of movement (Article 12); right of aliens to due process when expelled (Article 13); right to a fair trial (Article 14); freedom from retroactive criminal law (Article 15); right to recognition as a person before the law (Article 16); right to privacy (Article 17); freedom of thought, conscience, and religion (Article 18); freedom of opinion and expression (Article 19); freedom from war propaganda and freedom from incitement to racial, religious or national hatred (Article 20); freedom of assembly (Article 21); freedom of association (Article 22); right of protection of the family and the right to marry (Article 23); right of protection of the child (Article 24); right of participation in public life (Article 25); right to equality before the law and right of non-discrimination (Article 26); and rights of minorities (Article 27).

An Optional Protocol to the Convention on an individual complaints procedure was adopted by the UNGA in Resolution 2200A (XXI) of 16 December 1966. It entered into force on 23 March 1976. As of June 2015, 115 states were party to the Optional Protocol.

A Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty was adopted by the UNGA in Resolution 44/128 of 15 December 1989. It entered into force on 11 July 1991. As of June 2015, 81 states were party to the Second Optional Protocol.

Supervisory mechanisms

Consideration of reports of States parties (ICCPR, Article 40)

Once a State becomes a party to the Covenant it shall submit, one year after the Covenant enters into force for that State, its initial report to the Committee. For periodic reports, it is the Bureau of the Committee, at the end of the session at which the State party report is examined, which decides the number of years after which the State party should present their next report. The general rule is that States parties should present their periodic report to the Committee every four years. However, the Bureau can add or subtract one year to this four-year period depending on the level of compliance with the Covenant’s provisions by the State party.

Country Report Task Forces

The Committee has replaced the working group on article 40 of the Covenant with Country Report Task Forces, which instead of meeting before the session meet during the plenary session. The principal purpose of the Country Task Forces is to identify in advance the questions which will constitute the principal focus of the dialogue with the representatives of the reporting State. The aim is to improve the efficiency of the system and to ease the task of States’ representatives by facilitating more focused preparations for the discussion.

The Country Report Task Force has between four and six members, taking account of the desirability of a balanced geographical distribution and other relevant factors. One of these members is the country rapporteur who is the person overall responsible for the drafting of the list of issues.

The working methods of the Country Report Task Force are as follows: First, the country rapporteur presents the draft list of issues for discussion to the Country Report Task Force. Once the members have made their observations, the list of issues is adopted by the Task Force as a whole. The Task Force then allocates to each of its members principal responsibility for a certain number of questions included in the list of issues, based in part on the areas of particular expertise or interest of the member concerned. Once the list of issues is adopted and edited, it is transmitted to the State party.

Since 1999 the lists of issues has been adopted at the session prior to the examination of the State report, thereby allowing a period of two to four months for States parties to prepare for the discussion with the Committee.

In preparation for the Country Report Task Force, the secretariat places at the disposal of its members a country analysis as well as all pertinent documents containing information relevant to each of the reports to be examined. For this purpose, the Committee invites all concerned individuals, bodies and non-governmental organizations to submit relevant and appropriate documentation to the secretariat.

Constructive dialogue

It is the practice of the Committee, in accordance with Rule 68 of its Rules of Procedure, to examine reports in the presence of representatives of the reporting States. All States whose reports have been examined in this way have cooperated with the Committee but the level, experience and the number of representatives have varied. The Committee has stated that, if it is to be able to perform its functions under article 40 as effectively as possible and if the reporting State is to obtain the maximum benefit from the dialogue, it is desirable that the States representatives should have such status and experience (and preferably be in such number) as to respond to questions put, and the comments made, in the Committee over the whole range of matters covered by the Covenant.

On occasion, States have announced that they would appear before the Committee but have not done so on the scheduled date. The Committee has decided that, if a State party has submitted a report but does not send a delegation to the Committee, the Committee may notify the State party of the alternative date on which it intends to consider the report or may proceed to consider the report at the meeting that had been initially scheduled. If the latter takes place, the Committee will examine the report and prepare provisional concluding observations which will be submitted to the State party. The Committee will mention in its Annual Report that these provisional concluding observations were prepared, but their text will not be published.

The following procedure is generally used for the examination of State party reports: The representative of the State party is invited to introduce the report by making brief introductory comments, followed by the replies to the first group of questions included in the list of issues. It should be noted that States parties are encouraged to use the list of issues to better prepare for a constructive discussion, but are not expected to submit written answers. After this intervention, the Committee members will provide comments or further questions in relation to the replies provided. Although all Committee members participate in this dialogue, the members of the Country Task Force who are responsible for a pre-assigned number of questions, will have priority when asking questions to the representatives of the State party. The representative of the State party is then invited to reply to the remaining questions on the list of issues, to which will again follow the comments and questions of the Committee.

In general, the Committee devotes two meetings (of three hours each) to the examination of periodic reports and three meetings (of three hours each) to the examination of initial reports. In addition, it generally devotes between two and three hours towards the end of the session, in private, to the discussion prior to the adoption of the concluding observations.

Individual members of the Committee refrain from participating in any aspect of the consideration of the reports of the States of which they are nationals in order to maintain the highest standards of impartiality, both in substance and appearance.

Concluding observations/comments

The final phase of the Committee’s examination of the State report is the drafting and adoption of its concluding observations. For this, the country rapporteur prepares, with the assistance of the secretariat and based on the constructive dialogue held during the plenary session, draft concluding observations for the consideration of the Committee.

The agreed structure of the concluding observations is as follows: introduction; positive aspects; factors and difficulties impeding the implementation of the Covenant; principal subjects of concern and suggestions and recommendations. Concluding observations also include a recommendation requesting the wide dissemination of the concluding observations in the State party concerned, as well as a paragraph requesting that additional information be provided to the Committee, within a specified deadline (usually of one year), on specific points of the concluding observations. The concluding observations also set out the provisional date when the State party’s next periodic report is due.

This draft is discussed by the Committee in private session with a view to adopting it by consensus. The concluding observations, once adopted, are usually not made public until the day preceding the end of the session. They are forwarded to the State party concerned and included in the Committee’s Annual Report.

Follow-up to concluding observations/comments

After the adoption of the concluding observations, a follow-up procedure shall be employed in order to establish, maintain or restore a dialogue with the State party. For this purpose and in order to enable the Committee to take further action, the Committee shall appoint a special rapporteur, who will report to the Committee. The special rapporteur will report with regard to the information received from the State party (within a specified deadline) as to the steps taken, if any, to meet the recommendations of the Committee. This sessional follow-up progress report will prompt the Committee plenary to make a determination of the date/deadline for the submission of the next report. This follow-up procedure does not apply in cases of examination of country situations (i.e. when the Committee examines the measures taken by the State party in the implementation of the Covenant in the absence of a State report).

Strategies to encourage reporting by States parties

The Committee has noted that only a small number of States have submitted their reports on time. Most of them have been submitted with delays ranging from a few months to several years and some States parties are still in default, despite repeated reminders by the Committee.

Since reporting by States parties is the fundamental mechanism by which the Committee discharges fully its obligation to monitor the observance of obligations under the Convention, the Committee has adopted special procedures for considering the situation of States parties that have failed to honour their reporting obligations.

When the State party has not presented a report, the Committee may, at its discretion, notify the State party of the date on which the Committee proposes to examine the measures taken by the State party to implement the rights guaranteed under the Covenant. If the State party is represented by a delegation, the Committee will, in presence of the delegation and in public session, proceed with the examination on the date assigned. If the State party is not represented, the Committee may, at its discretion, either decide to proceed to consider the measures taken by the State party to implement the guarantees of the Covenant at the initial date or notify a new date to the State party. In both cases the Committee will prepare provisional concluding observations which will be transmitted to the State party. The Committee will mention in its Annual Report that these provisional concluding observations were prepared, but their text will not be published.

Interaction with specialized agencies and bodies of the United Nations

The Committee invites specialized agencies and other bodies of the United Nations to cooperate in its work. The Committee invites specialized agencies to provide written reports containing country-specific information on states parties whose reports are before them. Representatives of these entities are also invited to address the Committee at the beginning of each session. Moreover, the United Nations Secretary-General can, after consultation with the Committee, transmit to specialized agencies parts of the reports received from states parties which may fall within their field of competence. The specialized agencies may then submit comments on those parts of the reports.

Participation of non-governmental organizations and national human rights institutions in the Committee’s considerations

In order to ensure that it is as well informed as possible, the Committee invites non-governmental organizations and national human rights institutions to provide reports containing country-specific information on states parties whose reports are before them. The Committee sets aside the first morning meeting of each plenary session to enable representatives of non-governmental organizations to provide oral information. In addition to this, lunch-time briefings are organized to allow non-governmental organizations to provide further information to Committee members before the examination of the State report by the Committee.

Inter-state complaint procedure (ICCPR, Articles 41 to 43)

A state party may declare that it recognizes the competence of the Committee to receive and consider communications from states parties which have made such declarations to the effect that another state party which has made such a declaration is not fulfilling its obligations under the Covenant. The state party shall first bring the matter to the attention of the other state party concerned. The receiving state shall within three months provide the sending state with an explanation or statement clarifying the matter. If the matter is not adjusted to the satisfaction of the states concerned within six months either state may refer the matter to the Committee. If satisfied that all available domestic remedies have been invoked and exhausted, the Committee shall examine the matter and may call on the states concerned to supply any relevant information. The Committee shall within 12 months submit a report confined to a brief statement of the facts. The Committee shall make available its good offices with a view to the friendly solution of the matter. If the matter is not resolved to the satisfaction of the states concerned, the Committee may, with the consent of the states, appoint an ad hoc Conciliation Commission. The good offices of the Conciliation Commission shall be made available to the states concerned with a view to an amicable resolution of the matter. When the Commission has fully considered the matter, but in any event within 12 months, it shall submit a report to the Chairman of the Committee for communication to the states concerned, embodying, if no amicable settlement has been reached, its findings on all questions of fact relevant to the issue and its views on the possibilities of an amicable solution. The parties which shall within three months indicate whether they accept the contents of the report.

Individual complaints mechanism (First Optional Protocol)

A state party by becoming party to the Optional Protocol recognizes the competence of the Committee to receive and consider communications from individual’s subject to its jurisdiction claiming to be victims of violations by that state of the rights set forth in the Covenant.

The Committee deals with communications it receives at a pre-sessional working group on communications which meets prior to each of the Committee’s sessions. This working group is composed of at least five members of the Committee nominated by the Chairperson, taking account of the desirability of a balanced geographical distribution and other relevant factors. This working group is entrusted with the task of making recommendations to the Committee regarding communications received under the Optional Protocol. The Committee may designate special rapporteurs from among its members to assist in the handling of communications. The secretariat facilitates the work of the special rapporteurs and the working group by assisting in the research and drafting of the requisite number of recommendations on complaints ready for action (normally 25 to 30 per session).

The Committee allocates time at each of its sessions to examine the communications received as well as the recommendations made by the pre-sessional working group on communications. The Committee considers these communications at private meetings and all documents related to the communications remain confidential.

If the Committee is satisfied that the matter is not being examined in another international context, and that all available domestic remedies have been exhausted, it shall bring the communication to the attention of the state concerned. The state shall submit its explanations or statements and the remedy, if any. After examination, the Committee shall forward its views to the state and the individual. Only the final decision on any given complaint (inadmissibility decision or decision on the merits) becomes a public document.

Individual members of the Committee refrain from participating in any aspect of the consideration of the communications if: a) the State of which they are nationals is a party to the case; b) if the member has any personal interest in the case; c) if the member has participated in any capacity in the making of any decision on the case covered by the communication.

The Committee has established follow-up procedures for communications by designating special rapporteurs for follow-up on views for the purpose of ascertaining the measures taken by the States parties to give effect to the Committee’s views. The special rapporteur shall make recommendations for further action by the Committee as necessary and shall regularly report to the Committee on follow-up activities.

As of August 2015, the Committee has adopted 35 general comments These include General Comment No. 24 on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, General Comment No. 29 on states of emergency and General Comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant. Its most recent General Comment, General Comment No. 35 dealt with Article 9 of the Covenant (liberty and security of person).

Summary

Interpreting the Covenant so that there can be no doubts about the scope and meaning of its articles has become an important function of the Committee. General comments are normally directed at States parties and usually elaborate the Committee’s view of the content of the obligations of States parties to the Covenant.

Reference

• Human Rights Reference Handbook (5th edition, Reykjavik, 2010) The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.