Human Rights Committee

Christian Tomuschat

Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: April 2019

Subject(s):
Civil and political rights
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

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 A.  General Features
1.  Mandate
1  The Human Rights Committee (‘HRC’) was established in 1977 under Art. 28
→ International Covenant on Civil and Political Rights (1966) (‘ICCPR’). Its general mandate
is to monitor → compliance by States Parties with their obligation to respect and ensure the
rights set forth in the ICCPR.

2.  History
2  The HRC met first in March 1977. As of the time of writing it has existed for 42 years.
During those four decades, it has held 125 sessions—including its summer session of May
2019—which have until recently been of a duration of three weeks each. According to a
standard schedule, it convenes three times a year. While originally in accordance with Art.
37 (3) ICCPR one of the annual sessions was held at the → United Nations (UN)
Headquarters in New York while the other two took place at the UN Office at Geneva, that
pattern became irregular in later years (as of 2003), the HRC being requested to perform
its activities exclusively in Geneva. In recent years, all sessions, whose length has been
extended to four weeks each, are indeed held regularly in Geneva. By way of exception, one
session was held in a foreign capital (Bonn, Germany, spring 1981).

3.  Structure
3  The HRC counts among the treaty-based expert bodies established in accordance with
the → treaties for the protection of → human rights which have been elaborated within the
world organization but are binding only on those States that have accepted them (→ Human
Rights, Treaty Bodies). Currently, ten such expert bodies exist. Although not qualifying as
UN bodies—ie Charter-based bodies—they have all been brought into a close organizational
relationship with the UN (see also → United Nations Committees and Subsidiary Bodies,
System of). Thus, the UN Secretary-General (→ United Nations, Secretary-General)
prepares the elections of the HRC’s members and provides the necessary staff and facilities
for the effective discharge of its functions (Art. 36 ICCPR). The ICCPR also provides that
the HRC members shall receive emoluments from UN resources, ‘having regard to the
Committee’s responsibilities’ (Art. 35 ICCPR). In violation of this stipulation, UN General
Assembly Resolution 56/272 of 2002 reduced these emoluments to one symbolic US dollar
(see also → United Nations, General Assembly). States Parties to the ICCPR are thus
discharged from any particular financial responsibility for the HRC (see also → International
Organizations or Institutions, Financing of). However, they alone are entitled to nominate
candidates for election.

4.  Composition
4  Members of the HRC are elected from a list of candidates nominated by the
→ governments of the States Parties. Art. 28 (2) ICCPR provides that candidates shall be
‘persons of high moral character and recognized competence in the field of human rights’.
Although each State Party can nominate up to two candidates possessing its → nationality,
the HRC may not include more than one national of the same State. In a formulation which
recalls Art. 9 Statute of the International Court of Justice, Art. 31 (2) ICCPR further
provides that 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’. No quotas have been set for the different regions of the globe.
Generally, the regional factor determines the share in the total composition of the HRC.
However, the personal prestige of a candidate and also the prestige of a country can play an
important role and can unsettle such mechanical calculations. Currently, the group of

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 Western (European and other) States is slightly over-represented, while Asia in particular is
under-represented according to a purely statistical breakdown.

5  Members of the HRC are not diplomatic representatives of their respective countries, but
‘shall serve in their personal capacity’ (Art. 28 (3) ICCPR). The fact that the ICCPR expects
them to act as independent experts is also underlined by the wording of the solemn
declaration which each member is required to make before taking office. Thereby, he/she
pledges to perform his/her duties ‘impartially and conscientiously’ (Art. 38 ICCPR). It might
be argued that certain high offices within the executive branch of a State Party can hardly
be reconciled with the basic duty thus defined. However, during some periods of its
existence, the HRC counted among its members even active holders of ministerial posts
(see also → Heads of Governments and Other Senior Officials). To a lesser degree, the
membership of highly placed civil servants, in particular high-echelon diplomats, also raises
difficult issues of compatibility (see also → Heads of Diplomatic Missions; → Members of the
Staff of Diplomatic Missions). Inevitably, any person nominated by his/her government will
have some kind of intimate link with that government. In the last resort, governments are
the masters of the composition of the HRC. Any inappropriate candidature could eventually
be blocked by the other States Parties. There is no formal procedure to challenge the result
of elections.

6  Members are elected for a period of four years. By providing that every two years the
office of 9 of its 18 members expires, the ICCPR ensures a certain degree of personal and
institutional continuity. In practice, the HRC has always been characterized by a reasonably
well-balanced mixture of law professors, diplomats, judges, and other legal professions. No
formal rules exist as to appropriate gender representation. The HRC’s first female member
was elected in 1983 and took office in 1984. As of 2019, the HRC comprises six female
members.

5.  Personal Status of Members

7  According to Art. 43 ICCPR, members of the HRC shall be entitled to the facilities,
privileges, and immunities of experts on mission for the UN as set forth in the relevant
sections of the 1946 Convention on the Privileges and Immunities of the United Nations
([adopted 13 February 1946, entered into force 17 September 1946] 1 UNTS 15; see also
→ Immunities; → Immunities, Special Missions; → International Organizations or
Institutions, Privileges and Immunities). Thus, they enjoy immunity from personal arrest or
detention, immunity with regard to any acts done or words spoken in the discharge of the
office and inviolability for all papers and documents.

B.  Functions
8  The Committee’s functions are circumscribed by the ICCPR by way of an exhaustive
enumeration. Unlike formerly the Commission on Human Rights and now the Human Rights
Council (→ United Nations Commission on Human Rights/United Nations Human Rights
Council), the HRC is not free to assign to itself new tasks in the field of human rights.

9  The ICCPR has not endowed the HRC with true decision-making powers (see also
→ International Organizations or Institutions, Decision-Making Bodies). All of its
competences, apart from its internal organization, are of a recommendatory nature only.
Seen from a purely legal viewpoint, the HRC is hence a weak institution. This does not
detract from the considerable political and moral weight which the statements of the HRC
have. A State embracing the → rule of law cannot afford simply to ignore suggestions or

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 criticisms expressed by the HRC. Furthermore, the HRC has attempted to confer quasi-
binding legal force on certain of its statements (see paras 14, 28, and 35 below).

1.  Examination of State Reports

10  Under the ICCPR, States Parties undertake to submit reports on their performance with
regard to all the rights recognized therein (→ Human Rights, State Reports; see also
→ Reporting Systems). An initial report is due within one year of the entry into force of the
ICCPR (→ Treaties, Conclusion and Entry into Force), and thereafter subsequent reports are
due whenever the Committee so requests (Art. 40 (1) ICCPR). Originally, the HRC had
determined that subsequent reports were to be submitted every five years. Since 1999, the
HRC has adopted a more flexible practice. At the end of its consideration of a State report,
it sets on a case-by-case basis a date by which the next report should be submitted. Thus,
the HRC can concentrate on those countries where severe deficiencies have been found to
exist. The examination of State reports indeed constitutes its main responsibility inasmuch
as all States Parties are subject to that procedure. Any reservation purporting to exempt a
State from the obligation to submit regular reports would contravene the object and
purpose of the ICCPR (→ Treaties, Multilateral, Reservations to; → Treaties, Object and
Purpose). The methods of examination have been progressively improved over the years.

11  Originally, opinions were divided in the HRC as to whether it was entitled to proceed to
an assessment of the situation of human rights in a given country after the examination of
the report from that country. In that regard, Art. 40 (4) ICCPR lacks precision. It confines
itself to stating that the HRC shall ‘study’ the reports submitted to it and that thereupon it
shall ‘transmit its reports and such general comments as it may consider appropriate, to the
States Parties’. While Western members interpreted this phrase as meaning that the HRC
was duty-bound to establish each time a specific report containing its assessment, members
from socialist countries held that interpretation to be incompatible with the principle of
→ sovereignty (see also → Interpretation in International Law). They believed that any
concrete appraisal of the human rights situation in a given country amounted to
interference in the protected domestic matters of the State concerned (→ Domaine réservé;
see also → International Law and Domestic [Municipal] Law). It was only after the demise of
the socialist system in Central and Eastern Europe that the HRC decided at its 1123rd
meeting on 24 March 1992 generally to proceed to such an evaluation. The first practical
case of application of this new strategy was the adoption of comments on the Algerian
report on 9 April 1992. In recent years, the HRC dealt extensively with the human rights
record of the United States of America (‘US’), focusing in particular on the methods
employed by the US government in its ‘war on terror’ (‘Report of the Human Rights
Committee’ [1 December 2006] para. 84; see also → Afghanistan, Conflict; → Iraq, Invasion
of [2003]; → Iraq, Occupation after 2003; → Terrorism). In 2007, it examined with particular
attention the Islam-inspired practices of → Sudan (‘Report of the Human Rights
Committee’ [26 July 2007]; see also → Islamic Approach to International Law). In 2015, the
HRC criticized severely the practices of torture and ill-treatment in Russian prisons as well
as the excessive restrictions on freedom of expression (UN HRC ‘Concluding Observations
on the Seventh Periodic Report of the Russian Federation’ (28 April 2015) UN Doc CCPR/C/
RUS/CO/7). It is uncontested today that the HRC does not exceed the scope of its powers by
scrutinizing in a detailed fashion the actual performance of a given State.

2.  Examination of Inter-State Applications

12  In Art. 41 ICCPR an inter-State complaint procedure is provided for (→ Human Rights,
State Complaints). Accountability under this procedure becomes operative only on the
condition that a State, by virtue of a special declaration, has expressly accepted it (see also

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 → Reciprocity). As of 6 April 2018, 50 States had made that declaration. To date, however,
not a single case has been brought before the HRC under that heading.

3.  Examination of Individual Communications

13  Pursuant to the First Optional Protocol to the ICCPR (‘Optional Protocol’) (in force for
116 States as of April 2019), the HRC is additionally entrusted with the task of considering
communications from individuals—excluding juristic persons—who claim that their rights
under the ICCPR have been infringed (→ Human Rights, Individual Communications/
Complaints; see also → Individuals in International Law). The Optional Protocol contains
very few rules for the handling of such communications. Most of the provisions refer to the
conditions of admissibility which a communication is required to fulfil before it may be
examined as to its merits. In Rules of Procedure of the Human Rights Committee (‘Rules of
Procedure’), the HRC has attempted to set out in a systematic fashion all those
requirements which are somewhat scattered throughout the Optional Protocol. By and
large, the relevant provisions resemble the analogous provisions of the → European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
(‘ECHR’). In particular, the Optional Protocol sets forth that domestic → remedies have to be
exhausted before a case can be brought to the attention of the HRC (Art. 2 Optional
Protocol; → Local Remedies, Exhaustion of; see also → Human Rights, Domestic
Implementation; → Human Rights, Remedies). In contrast to the ECHR, however, the
Optional Protocol contains only an obstacle of litispendence: the HRC may not deal with a
communication while it is ‘being examined’ under another procedure of international
investigation or settlement (Art. 5 (2) (a) Optional Protocol). Procedures of which the end
result is no more than a recommendation and which refrain from examining the specific
characteristics of an individual case do not count for the purposes of this exception (eg
complaint procedure under Human Rights Council Resolution 5/1 [18 June 2007] UN Doc A/
HRC/5/L.11, formerly UN ECOSOC Res 1503 [XLVIII] [27 May 1970] ESCOR 48th Session
Supp 1A, 8; see also ECOSOC’s complaint procedure to the UNESCO Executive Board’s
Committee on Conventions and Recommendations). Furthermore, unlike the ECHR, the
Optional Protocol does not mention as a ground of inadmissibility the fact that a
communication is manifestly ill-founded. In its jurisprudence, however, the HRC has not felt
debarred from ruling a communication inadmissible when it appears that it was devoid of
any foundation. It requires that the claim underlying an application be satisfactorily
substantiated for the purposes of admissibility. In a constant line of jurisprudence, it holds
that a claim is not just an allegation, but an allegation supported by a certain amount of
substantiating materials. In that fashion, the HRC rids itself of complaints that do not
deserve being dealt with as to their merits.

14  The examination of individual communications concludes with the delivery of views
(‘constatations’ in French, ‘observaciones’ in Spanish) by the HRC (Art. 5 (4) Optional
Protocol), called ‘final views’ in the practice. As their name indicates, they are not proper
decisions, lacking legally binding force. Nonetheless, States Parties cannot simply ignore
them, but have to consider them in → good faith (bona fide). On the other hand, they are not
debarred from dismissing them, after careful consideration, as not reflecting the true legal
position with regard to the case concerned. Not to react at all to a finding by the HRC,
however, would appear to amount to a violation of the obligations under the ICCPR.

15  The composition of the HRC does not change in accordance with the tasks which it is
performing. Thus, even members from countries that have not ratified the Optional Protocol
sit when the HRC considers individual applications although no communication from their
home country may ever reach the HRC. This was a major problem at the time before the
demise of the socialist system in Europe. The socialist States unequivocally rejected the
idea of being controlled through individual complaints by an international body, but

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 nonetheless the socialist members of the HRC participated actively in the consideration of
communications under the Optional Protocol. Notwithstanding this inconsistency, a
different solution would have been hardly conceivable. The HRC constitutes a unitary
whole. The interpretations which it adopts in one field of its activity are valid also in its
other fields of activity.

4.  General Comments

16  General comments are provided for in Art. 40 (4) ICCPR in a way which leaves their
real meaning wide open (→ General Comments/Recommendations). Since in the early years
of its activity the HRC members were in deep disagreement about the final stage of the
examination of State reports. In order to overcome this dilemma, ‘general
comments’ (‘observations générales’ in French) were devised by way of compromise as a
first step on the way to fully discharging the responsibilities under Art. 40 ICCPR. In a
statement on its duties under Art. 40 ICCPR of 30 October 1980 (‘Report of the Human
Rights Committee’ [30 October 1980] 101), the HRC specified that in formulating general
comments it would be guided by five principles: (1) general comments should be addressed
to States Parties, (2) they should promote co-operation between States Parties in the
implementation of the ICCPR, (3) they should summarize the experience the HRC has
gained in considering State reports, (4) they should draw the attention of States Parties to
matters relating to the improvement of the reporting procedure and the implementation of
the ICCPR, and (5) they should stimulate activities of States Parties and international
organizations in the promotion and protection of human rights. Additionally, it was said that
general comments might touch upon four substantive areas: (1) the implementation of the
obligation to submit reports under Art. 40 ICCPR, (2) the implementation of the obligation
to guarantee the rights set forth in the ICCPR, (3) questions related to the application and
the content of individual articles of the ICCPR, (4) suggestions concerning co-operation
between States Parties in applying and developing the provisions of the ICCPR. It strikes
the reader that procedural technicalities and co-operation among States seem to be the
main themes while compliance with the commitments under the ICCPR is mentioned only as
a secondary concern.

17  On this basis, the HRC started formulating general comments which were designed to
cut across the entire field covered by the ICCPR, but which were not meant to focus
specifically on the human rights situation in a given country. In so doing, it has not only
drawn on its experience gained in examining reports, but has also relied upon its practice in
considering individual communications under the Optional Protocol. The first two general
comments concerned questions of procedure—how to fulfil the reporting obligation—but in
the following years issues of substance were commented upon and the size of the general
comments grew considerably. As of April 2019, the HRC has adopted 36 general comments.
Some of them deal with general questions—eg General Comment No 15 of 1986 on the
position of → aliens, No 24 of 1994 on issues relating to reservations and declarations, No
31 of 2004 on the nature of the general legal obligation imposed on States Parties, and No
33 of 2008 on the obligations of States Parties under the Optional Protocol—while most of
them purport to clarify the scope and meaning of a specific article of the ICCPR like, eg
General Comment No 32 of 2007 on the right to equality before courts and tribunals and to
a fair trial or General Comment No 35 on liberty and security of person. They do not
constitute an authentic interpretation of the ICCPR, but partake of the political and moral
authority of the HRC.

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 18  Some of the general comments stand out on account either of their political or of their
legal importance. In a controversial observation, the HRC stated in 1984 (General Comment
No 14, subsequently replaced by General Comment No 36, 30 October 2018) that ‘the
production, testing, possession, deployment and use of nuclear weapons should be
prohibited and recognized as crimes against humanity’ (para. 6). This observation
amounted to a political wish and could not be directly derived from the guarantee of the
right to life, Art. 6 ICCPR, which it purported to particularize (see also → Life, Right to,
International Protection). Consequently, the → International Court of Justice (ICJ) did not
share the view of the HRC when in 1996 it delivered its Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion) (paras 239–40; see → Nuclear Weapons Advisory
Opinions). A general comment on reservations to the ICCPR, adopted in 1994 (General
Comment No 24), elicited strong reactions from France, the United Kingdom, and the US
(‘Report of the Human Rights Committee’ [3 October 1995] 127; ‘Report of the Human
Rights Committee’ [19 September 1996] 104) when it stated that reservations incompatible
with the object and purpose of the ICCPR will normally be inoperative in the sense that the
reserving party will be bound without the benefit of its reservation. The three protesting
governments held that this consequence flew in the face of the right of States to conclude
treaties as they saw fit, according to their sovereign will. The issue has been clarified by the
Guide to Practice on Reservations to Treaties, adopted by the ILC in 2011 (UN ILC ‘Report
of the International Law Commission’ (26 April–3 June and 4 July–12 August 2011) GAOR
66th Session Supp 10 (A/66/10) para. 75 guideline 4.5). General Comment No 31 contains
the general philosophy of the ICCPR as understood by the HRC, by insisting in particular on
the fact that the obligations under the ICCPR are both negative and positive in nature,
requiring States actively to ensure real enjoyment of all of the relevant rights.

C.  The Decision-Making Process

19  In accordance with Art. 39 (2) ICCPR, the HRC drew up its Provisional Rules of
Procedure during its first session in New York. In July 1989, the HRC made the Rules of
Procedure definitive by eliminating the word ‘Provisional’ from their title. After many
revisions, the version that is current at the time of writing can be found in a document
dated 9 January 2019.

20  Art. 39 (2) ICCPR determines that decisions of the HRC shall be made by a majority
vote of the members present, 12 members constituting a quorum. Nonetheless, in a
footnote to Rule 52 Rules of Procedure, which simply repeats the language of the ICCPR
itself, reference is made to a passage of the first annual report in which it says that

The members of the Committee generally expressed the view that its method of
work normally should allow for attempts to reach decisions by consensus before
voting, provided that the Covenant and the rules of procedure were observed and
that such attempts did not unduly delay the work of the Committee.

This footnote (see also → Consensus), which reflected primarily the wishes of members from
socialist States, had and has a far more limited scope than is occasionally attributed to it. It
does not reflect a decision of the HRC itself, but points only to a statement made by
members. Moreover, recourse to formal voting can in no way be blocked de iure (see also
→ International Organizations or Institutions, Voting Rules and Procedures). De facto,
however, the original intention to consider voting only as a device of last resort has had a
considerable impact on the practical work of the HRC. To date, as far as can be seen, no
formal vote has taken place, although the method of appending members’ individual
opinions to final views on individual communications filed under the Optional Protocol,
explicitly permitted by Rule 103 Rules of Procedure, can be seen as a barely disguised
indicator that an individual member or a group of members has been overruled by the

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 majority. On the other hand, general comments have nearly always been adopted
unanimously by the HRC. Only with regard to General Comment No 14 on nuclear weapons
and the right to life did the Austrian member F Ermacora state that if a formal vote had
been taken he would have voted against the comment (Summary Record 563rd Meeting
First Part, Public 2 November 1984 [1985–86] vol I YBHRC 68 para. 6).

D.  Practice—Increasing the Effectiveness of the Monitoring

System
1.  State Reports
21  The burden of examining State reports is considerable. With 172 States Parties as of
April 2019, the HRC would receive roughly 34 reports per year if the rhythm of one periodic
report every five years had been maintained. The working capacity of the HRC is far more
limited. According to the latest report of July 2017 to March 2018, the HRC considered 19
State reports. In fact, if the HRC wishes to adopt meaningful concluding observations,
which focus in detail on the weaknesses and the positive aspects in a given country, it
cannot rush through the report by employing a routine strategy.

22  In order to draw maximum benefit from the examination of reports, the HRC has taken
a number of measures intended to streamline and thereby to enhance the effectiveness of
the dialogue with the responsible governments.

23  From its very first day, the HRC made clear that it would prefer to discuss reports in the
presence of a governmental delegation in open session, thereby giving a constructive
interpretation to Art. 40 (4) ICCPR. Initially, however, the debate between the HRC and the
delegations presenting a report was badly lacking in focus. Members put their questions
one after the other, without any co-ordination, and a few days later the delegation
concerned returned to answer the questions en bloc. Under this scheme, it was easy for the
delegation to avoid delicate questions. Gradually, a ‘second round’ was introduced which
permitted members to put additional questions after they had received first answers. The
current system has been rationalized, simplified, and thereby intensified.

24  First of all, a distinction is drawn between initial reports and subsequent periodic
reports. Initial reports should explain in a comprehensive manner the ways and means in
which a State Party discharges its obligations under the ICCPR. By contrast, subsequent
periodic reports are supposed to proceed from the HRC’s concluding observations
regarding the preceding State report; they should at the same time address a list of issues
which the HRC intends to send to the government concerned two months ahead of the
meeting where the examination is supposed to take place. Thus, the governmental
delegation has sufficient time for preparation and can supply the information desired in a
precise and reliable manner. On the other hand, the HRC appoints for each meeting with a
governmental delegation a ‘country report task force’, consisting of no fewer than four and
not more than six members. Such task forces are entrusted with leading the debate with the
governmental delegation present. This special responsibility of the task force does not
prevent the other members from playing an active role. But the system ensures that there is
invariably a group of members who are intimately versed in the specific features of the
country under review that need clarification and discussion. In general, such discussions,
which are routinely claimed to take place as a ‘constructive dialogue’, do not shy away from
thorny issues. Members of the HRC, precisely because they are not diplomatic envoys of

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 their home countries, are in no need to avoid pursuing allegations that would entail political
tensions in an inter-State relationship.

25  The HRC is continually faced with the question on what materials it can rely to carry
out its assessment of the human rights situation in a given country (see also → Fact-Finding;
→ International Courts and Tribunals, Evidence). Originally, a tacit code, whose observance
was insisted upon in particular by members from socialist countries, excluded evidence
provided by non-official sources. Newspaper reports were not considered to constitute
evidence susceptible of being referred to during the examination of a report. Of course,
members informed themselves as best as they could from all accessible sources. When
drawing on such non-official sources, however, they confined themselves to stating that ‘it
had been reported’ that certain actions contrary to the ICCPR had occurred. This somewhat
rigid scheme has now been considerably softened. The 2006 Report of the HRC states quite
openly that the country report task forces also take into account material submitted not
only by other international organizations, but also by → non-governmental organizations
(see also → Human Rights, Role of Non-Governmental Organizations). This is a big step
forward which, of course, requires a high degree of caution and responsibility.

26  A matter of great concern is the huge delay incurred by many governments in
submitting their reports. Here, it is evident that smaller countries, whose governmental
apparatus is not as developed as in the industrialized countries of the North, encounter
great difficulties in complying with all of the reporting obligations, which they have
assumed under the various treaties for the protection of human rights. As of 2019, the
initial report of Equatorial Guinea has been overdue for more than 30 years, and in the case
of Grenada the HRC has been awaiting the initial report for 26 years. The initial report of
Somalia should have been submitted 26 years ago, but it is no wonder that the report has
not been forthcoming, given the chaotic situation in that country (→ Somalia, Conflict; see
also → Failing States). It must be noted that even well-developed countries like Nigeria (18
years) and India (16 years) face difficulties in submitting their subsequent periodic reports.

27  In order not to permit any obstruction of its work, the HRC has amended its Rules of
Procedure in order to provide for a regular procedure under which the human rights
situation in a given country may be examined even in the absence of a delegation, if a
report has been submitted (Rule 68 Rules of Procedure), or to examine the situation even in
the absence of a report (Rule 71 Rules of Procedure). These provisions have in fact been
applied in numerous cases.. The last example of this procedure is provided by the
consideration of the situation of the Seychelles in March 2011 after the country had
incurred a delay of 18 years in submitting its initial report. The threat that their country
might be evaluated by the HRC acting alone, without any participation of a national
delegation, has prompted a number of defaulting governments at least to send a delegation;
in other instances, a report which was long overdue was eventually submitted. Since 2012,
examination meetings in the absence of a report are held in public session.

28  For the last couple of years, the HRC has established a procedure for follow-up to
concluding observations. Although the concluding observations are not binding, the HRC
wishes to ensure that its comments are seriously taken into account by governments. On
the one hand, States are expected to respond to concluding observations by making a
written submission. For a specific number of select concluding observations, where urgency
prevails, the HRC may invite the government concerned to provide follow-up information by
a determined date (Rule 75 Rules of Procedure). In order to bring pressure to bear upon
States, the HRC has taken to appointing a Rapporteur on follow-up. Nonetheless, as can be
seen from the HRC’s annual reports, many States simply do not answer its requests. Such
silence denotes not only a lack of courtesy (→ Comity), but can furthermore be
characterized as a true violation of the obligations under the ICCPR. Although States are

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 not bound to follow the concluding observations set out by the HRC, they must take them
into account, pondering them and deciding on whether to heed the advice given by the HRC
or advancing reasons why a different course of action should be followed.

29  The concluding observations of the HRC should be relied upon by the entire
→ international community, States and international organizations alike (see also
→ International Organizations or Institutions, General Aspects), when making policy
determinations vis-à-vis a State whose compliance with the obligations under the ICCPR is
seriously defective. It stands to reason that an expert body, acting alone, has no real clout in
trying to lead a wrong-doing State back onto the path of correct conduct. It is the task of
the HRC to state the law; but it cannot be an enforcement agency. No matter how laudable
the efforts of the HRC are to see its observations heeded, it is simply not in a position to
attain that objective just through the persuasive force of its pronouncements.

2.  Examination of Individual Communications

30  As of 6 April 2018, 3,162 individual communications under the Optional Protocol had
been registered. Of these, 1,325 communications had been concluded by final views, and in
1,061 cases violations had been found to exist. At the same date, 703 cases were still
pending. Obviously, the HRC is not in a position to keep pace with the number of incoming
new communications, given the fact that it is not a permanent body, that it sits only three
times a year for four weeks, and that it has only a small secretariat. During the most recent
year of its activity at the time of writing, covered by its 2017/18 Report, it concluded the
examination of 125 cases by formulating final views, and 18 cases were rejected by it as
being inadmissible. Thus, it has a backlog of more than three years. Should the number of
communications increase significantly in the coming years, it would soon be totally
overwhelmed. At the present stage already, one may wonder why the number of
communications received by the HRC is relatively low, notwithstanding the fact that the
number of States Parties to the Optional Protocol stands at 116. It is a matter of common
knowledge that the → European Court of Human Rights (ECtHR), which holds jurisdiction
over only 47 States, receives currently roughly 50,000 applications per year. One of the
reasons may be that the procedure under the Optional Protocol is relatively unknown. On
the other hand, victims of an infringement of their human rights who have the choice
between seising the HRC or the ECtHR, will normally bring their case to Strasbourg,
knowing that the ECtHR is competent to pronounce true judgments (see also → Judgments
of International Courts and Tribunals) which are binding on the respondent State
concerned, while the ‘final views’ which the HRC delivers under Art. 5 (4) Optional Protocol
embody no more than recommendations.

31  Since March 1989, the HRC has appointed a Rapporteur on new communications, who
is the first to review any new communication. This Rapporteur is also entitled to request
interim measures of the respondent State. Additionally, before each session of the HRC, a
working group meets with a view to making recommendations as to the way in which new
communications should be handled. Such a working group can declare a communication
admissible if all members agree, or it can declare a communication inadmissible if likewise
all members agree. As far as the HRC itself is concerned, it generally takes a decision both
on admissibility and merits of a case whereas originally it had been felt that, according to
the logic of the Optional Protocol, the procedure should be articulated in two stages. All this
is done in order to expedite proceedings. However, a State that is requested to provide
information on the admissibility and merits of a case may object to admissibility. This does

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 not exonerate it from the duty to provide information on the merits of a case within six
months.

32  For some time, the idea had been advocated that the HRC might hold oral hearings in
order to dispose of the cases brought before it in a more effective manner, affording the
petitioners the opportunity to present their arguments personally and also introducing
testimony by witnesses as evidence. This idea has not made any headway. There is not only
the obstacle of shaky legal foundations in the Optional Protocol, which provides that the
HRC shall consider the communications received by it ‘in the light of all written information
made available to it’ (Art. 5 (1) Optional Protocol). It has also become clear that the
practical difficulties entailed by oral hearings would be insurmountable at world level.
Granting a fair hearing to everyone, irrespective of his/her place of residence, including his/
her presence at the proceedings, cannot be arranged in practical logistical terms.
Additionally, if transformed into a trial body, the HRC would have to sit permanently
because of the increased time requirements.

33  The appraisal of evidence placed before the HRC remains highly unsatisfactory.
Regarding situations where there are clear contradictions between the allegations of the
petitioner and the defence of the respondent government, the HRC has evolved the rule of
thumb that governments are under a duty to respond specifically and in detail to factual
contentions which have every appearance of seriousness. If the government concerned does
not launch an investigation and abstains from presenting the results thereof, the HRC
proceeds from the assumption that the allegations of the petitioner must be given due
weight as long as they are sufficiently substantiated, thus making a ‘default finding’.
Blanket denials of the respondent government are not enough. In cases where both sides
have advanced substantiated contentions, it is almost impossible for the HRC to disentangle
the factual situation.

34  Generally, procedures for the protection of individual rights are complemented by a
mechanism ensuring interim protection while cases are pending. The Optional Protocol
itself does not mention such a power of the HRC. From its inception, the HRC had included
a provision in its Rules of Procedure providing for such a remedy. Rule 94 Rules of
Procedure (Rule 86 formerly) states in fairly cautious words:

At any time after the registration of a communication and before a determination on

the merits has been reached, the Committee may request that the State party
concerned take on an urgent basis such interim measures as the Committee
considers necessary to avoid possible actions which could have irreparable
consequences for the rights invoked by the author.

The HRC has made use of this provision or its preceding version in particular in cases
where a person was threatened with execution (→ Death Penalty) or when it was feared that
a person would be deported or extradited to a country in which basic guarantees of a fair
trial were lacking (→ Extradition; → Fair Trial, Right to, International Protection) or where
the person ran a real risk of suffering other violations of rights protected under the ICCPR.
In most instances, the States concerned heeded such expressions of views. However, some
countries ignored the wishes of the HRC and executed the petitioners while the HRC had
not yet had the opportunity to examine the communications filed by them as to their merits
(see, eg UN HRC Communications No 973/2001, Khalilova v Tajikistan para. 2.12; No
915/2000, Ruzmetov v Uzbekistan para. 1.3; and No 1044/2002, Nazriev v Tajikistan para.
1.2). The same happened in the 2009 cases of Idiev v Tajikistan (No 1276/2004) and
Tolipkhuzhaev v Uzbekistan (No 1280/2004). It is with regard to such occurrences that the
HRC has stated that disregard of its views under former Rule 92 (current Rule 94) Rules of
Procedure may amount to a breach of the obligations incumbent upon the State concerned

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 under the Optional Protocol and under the ICCPR. There are good grounds to support this
understanding of Rule 94 Rules of Procedure. Any measure which causes irreparable
damage to the alleged victim renders the proceedings under the Optional Protocol nugatory.
Under such circumstances, the final views can produce no effect. Therefore, while
proceedings under the Optional Protocol are pending, the State concerned is under an
obligation to refrain from any steps that permit of no reparation.

35  The big challenge is to ensure compliance with the views formulated by the HRC. As
already pointed out, States have as a minimum an obligation to consider those views in
good faith. In a standard formula, inserted in all final views which conclude that a violation
of ICCPR rights has taken place, the HRC requests the State concerned to inform it within
90 days about the measures it has taken to give effect to its views. Furthermore, the HRC
has also appointed a ‘Special Rapporteur for follow-up on Views’ whose task it is to
establish contact with the governments concerned, reminding them of their obligations and
seeking to convince them that they should implement the measures recommended by the
HRC. In order to give more emphasis to its findings, for some time the HRC also gave ample
publicity to the follow-up in its annual reports. Thus, it formerly provided a complete
statistical breakdown of the position with regard to all cases in which it found a violation to
exist. This practice has, however, come to a halt. In any event, even in instances where the
government concerned fails to provide answers as requested by the HRC the Special
Rapporteur for follow-up on Views attempts to engage in a dialogue with the government
concerned.

E.  Reform of the System

36  Louise Arbour, former High Commissioner for Human Rights (→ Human Rights, United
Nations High Commissioner for [UNHCHR]), proposed during her term of office (2004–08)
that the then existing seven expert bodies, each having jurisdiction for one specific treaty
instrument, should be merged into one unified standing treaty body. These plans are ill-
conceived and would lead to unfortunate results. First, the relevant treaties would all have
to be amended, which would be a protracted and almost Herculean task (→ Treaties,
Amendment and Revision). But the main counter-arguments are located on a substantive
level. Currently, the ten treaty bodies comprise more than 120 experts. A unified body, in
order to be workable, could at a maximum comprise 25 persons. This would mean that a
fierce competition for the few posts would break out. Smaller countries would no longer
have a chance to be represented on the unified body by one of their nationals. Moreover,
some of the human rights treaties require special expertise, eg the Convention on the
Rights of the Child ([adopted 20 November 1989, entered into force 2 September 1990]
1577 UNTS 3; → Children, International Protection), the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment ([adopted 10 December
1984, entered into force 26 June 1987] 1465 UNTS 85; → Torture, Prohibition of), or the
Convention on the Rights of Persons with Disabilities ([adopted 13 December 2006, entered
into force 3 May 2008] 2515 UNTS 3; → Disabled People, Non-Discrimination of).
Furthermore, a body examining State reports day after day would inevitably sink into
routine and could hardly maintain the freshness of mind which is necessary in order to
make a meaningful contribution to the promotion and protection of human rights. Lastly,
the experts on a permanent body would have to serve full time. It is the advantage of the
current system, in contrast, that the experts maintain their ties with their countries of
origin. They do not become part of a bureaucratic elite. Rightly, therefore, the proposal to
replace the existing expert bodies by one unified body has received little support. One
might wish that it would disappear completely from the agenda.

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 37  However, in the long run the HRC’s schedule of sessions will have to be expanded.
Individual communications, in particular, must not be allowed to sit on the agenda for years
before they can be considered. Such delays destroy confidence in the procedure. However,
it can hardly be expected that highly qualified experts will spend several months of their
time in Geneva while being paid just one symbolic US dollar per year. A comprehensive
review of the system is therefore indispensable, but not in the sense suggested by the High
Commissioner for Human Rights.

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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
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Subscriber: Peace Palace Library; date: 27 January 2022
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