Human Rights : Implementation Of Mechanism

Implementation Mechanism

The implementation measures of the ICCPR are set out in Articles 28 to 45, and also in the Optional Protocol which establishes a procedure for considering individual communication. The body which is charged with supervising the observance by States Parties of their obligation under the ICCPR is the Human Rights Committee [HRC]. Article 28 of the ICCPR provides for the establishment of a HRC, consisting of 18 members who must be nationals of the parties to the ICCPR and persons of high moral character and recognized competence in the field of human rights. In their election consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems. The members of the Committee are elected for a four year term by secret ballot from nominations by State Parties at a special meeting convened for the purpose by the Secretary-General of the United Nations. Each party may nominate more than two candidates who must be nationals of the nominating State. Members of the Committee are eligible under Article 29[3] of ICCPR for re-election. The personal nature of the duties performed by Committee members is reinforced by the requirement that each must, on appointment, make a solemn declaration that he will perform his functions impartially and conscientiously. The Committee members are paid by the UN, thus eradicating one particular major source of potential government interference. The Committee presently meets three times in each year, in the spring, summer and autumn in sessions of three working weeks each. The spring session takes place in New York and the others two in Geneva. Secretariat services are provided by the United Nations Centre for Human Rights.

 

• Functions Of Human Rights Committee

The HR Committee performs three roles: Advisory and monitoring, conciliatory and inquiring and investigative. For this the main functions of the Committee can be divided into four. [1] To study reports from the States [2] To formulate general comments [3] To consider complaints from a state party regarding other state (Communications from states) and [4] To consider complaints from individuals against state party.

Reports From The States

The ICCPR and its Optional Protocol provide for one mandatory and two optional mechanisms to enable the Human Rights Committee to monitor fulfillment of obligations by the State parties. The mandatory means of supervision is a system of periodic reports under Article 40 (l). Under this provision States Parties undertake to submit reports on the measures they have adopted to give effect to the rights recognized in ICCPR and on the progress made in the enjoyment of those rights. Copies of State reports and comments are forwarded to ECOSOC for consideration, and the Committee itself is also required to submit an annual report to the General Assembly on its activities. A state party’s initial report is due within one year of the entry into force of the covenant for the country concerned. Subsequent reports, known as the “Periodic Reports” are due at a time individually specified by the Committee for each state party.

The Committee has decided that the periodicity for submission of subsequent reports other than initial reports is five years. However, pursuant to Article 40, the rules of procedure also stipulate that reports can also be requested “at any other time the Committee deems appropriate”. The Committee has stressed that the official reports should deal not only with the constitutional and legal situation in a country, but also with relevant activities of judicial, legal and administrative authorities, together with any restrictions or limitations even of a temporary nature imposed by law or practice or in any other manner on the enjoyment of the rights guaranteed in the ICCPR, and any other information on the progress made in the enjoyment of the rights.

However, in 1995 the Committee amended its guidelines for initial and periodic reports to stipulate that information provided on the implementation of each right should include, “factors affecting and difficulties experienced in the implementation of the ICCPR including any factors affecting the equal enjoyment by women of that right”.

 

• The Emergency Procedure

Since 1991 the HRC has developed a procedure to respond to what it perceived as emergency situations. The procedure is clearly based on the provisions of Article 40 of the ICCPR and is reflected as follows in the Committee’s Rules of Procedure:

Request for submission of a report under Article 40, paragraph 1(b) of the Covenant may be made in accordance with the periodicity decided by the Committee or at any other time the Committee may deem appropriate. In the case of exceptional situation when the Committee is not in session, a request may be made through the Chairman, acting in consultation with the members of the Committee.

The Committee has under the procedure requested urgent reports from nine States parties so far. In most cases, the States parties are requested to submit the report within three months. Non-governmental Organizations (NGOs) have an important role in bringing emergency situation of human rights violations to the attention of the Committee.

 

• Formation Of General Comments

A further means by which the Committee carries out its functions of interpreting the Covenant and to clarify, the scope and meaning of its articles, and thus of all states parties obligation is through the development and adoption of so-called general comments. As the provisions of the Covenant, like most human rights treaties, are phrased in general terms and thus liable to be interpreted in a variety of ways, the committee has taken up the task of elaboration of general comments by way of advice to all states parties. Rather than dealing with a particular issue as it arises in the context of a particular state party’s situation, general comments analyze a specific article or general issue in the Covenant in as extended and comprehensive fashion. While most general comments are detailed interpretations of a specific Covenant right some address the Covenant rights of specific groups, such as aliens, while others address procedural issues, such as the preparation of reports, or miscellaneous issues, such as reservations to the Covenant. The General comments are available on the Treaty Bodies database of the office of the United Nations High Commissioner for Human Rights.

 

• Inter-State Complaints Procedure

An important method of supervision of implementation of the ICCPR is optional, related to an inter-state complaints procedure covered under Articles 41 and 42 of the ICCPR. The Committee is competent to consider communications from a State party which considers that another State party is not giving effect to the provisions of the ICCPR. It shall make available its good offices to the State parties concerned with a view to promoting a friendly solution of the matter. This activity can be exercised by the Committee only if both States have declared that they recognize its competence to receive and consider such communication from States.

The first step in the process is for the state lodging the complaint to bring the matter to the attention of the state that is alleged not to be fulfilling its obligations. Within three months, the latter should reply, in the form of a written explanation or clarification. If, within six months, the matter is not settled to the satisfaction of both parties, either may refer it to the Committee which may deal with it, once satisfied that within a reasonable period of time, all domestic remedies have been tried without success.

The Committee may then take the matter up and propose its good offices in the search for a friendly solution. If there is still no agreement, the committee may appoint a five-person conciliation commission, with the agreement of the states parties directly concerned but not including their national among the members, with instructions to complete its business and submit a report to the Chairperson of the Committee and through that person, to the parties in dispute, within 12 months.

 

• The Individual Communication Procedure

Another method of supervision of enforcement of the rights contained in the ICCPR is again optional. This is the individual communication procedure contained in the Optional Protocol. States parties may empower the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State of any of the rights stipulated in the Covenant. The Committee can entertain individual communication only if a State party has ratified the Optional Protocol to the Covenant. Individuals who claim that any of their rights enumerated in the covenant have been violated and who have exhausted all available domestic remedies may submit written communication to Human Rights Committee for consideration. The duty of the Committee here is to “forward its views to the State Party concerned and to the individual”. The function of the Committee is to gather all necessary information, by means of written exchanges with the parties, to consider the admissibility and merits of complaints, and to issue its “views” accordingly.

All steps of the procedure under the Optional Protocol are confidential until the
point where the Committee adopts its views or otherwise concludes consideration
of a case.

Human Rights Committee Under The Optional Protocol – An Evaluation

The Human Rights Committee started its work under the Optional Protocol at its second session in 1977. One general trend in the emerging case law of the Committee is most promising: the Committee has displayed a determined desire to be seen to be acting in, at least, a quasi judicial manner. It has been conducting its work being fair to both petitioners and States parties. The ensuing analysis will reflect the nature and breadth of the Committee’s decisions on communications lodged by individuals.

Legal Basis For Follow-up Procedure

The idea for establishment of Human Rights Court with an effective implementation mechanism is still gaining momentum. It is true that the Human Rights Committee is not such a Court, but it does exercise analogous responsibilities and it is the only inter-national body to fulfil this need.

The Human Rights Committee’s decisions on the merits are referred to as “views” in Article 5, paragraph 4. Although views are read like court judgments, in fact drafters of the ICCPR did not call them so, nor did they confer upon them legally binding force. Another weakness is that the Optional Protocol does not provide for an enforcement mechanism. Thus, in practice the Committee’s views are more in the nature of recommendations. To make the Human Rights Committee more effective, a State may provide in its domestic legislation for implementation of the decisions of the Human Rights Committee.

 

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