The idea of human rights protection differs when comparing the concept of natural law and the concept of positive law, the difference lies in the need for recognition or consent provided by states in the area of their protection by states. By acceding to various international treaties, various states have undertaken to recognize and ensure protection of human rights and fundamental freedoms at different levels and by different means.
As for the universal level, several international treaties have been adopted under the umbrella of the United Nations (hereinafter also UN). For the purpose of this blog, only those have been chosen that have established committees which supervise the implementation of the obligations arising from these treaties for the individual contracting parties. The number of members in these committees varies from 10 to 23 experts, who are nominated and elected by the contracting parties, but are supposed to perform their functions as independent experts.[1]
These expert bodies are authorised to adopt three types of recommendations, namely general recommendations, recommendations after receiving and discussing monitoring reports from individual states and finally, recommendations adopted after an individual complaint has been submitted and heard. This blog aims to submit that these recommendations are not legally binding since states that adopt particular treaties commit themselves to respect particular human rights, however, they do not commit themselves to consider considerations be legally binding. The competence-competence principle that authorises tribunals to decide on their own competence is not applicable in case of human rights committees that are only quasi-judicial and not judicial bodies.
When one aims to analyse human rights committees’ recommendations and their status, it is very important to explain what these human rights committees are. As it has already been said, these committees are bodies that have been established by adoption of specific international treaties governing interstate relations in the area of human rights protection. It is true that the rule of law ensures that governments and institutions are held accountable for human rights violations, fostering an environment where individuals can seek justice without fear of reprisal. However, as it also has been said, in the area of so-called positive human rights protection, it is important to assess what are the legal obligations that particular states have committed themselves to. This is a challenge especially when talking about international treaties since they are an essential source of law in case of international law.
Referring to the rule of law, it is important to point out that human rights protection is one of the leading principles that should drive activities of all the UN bodies. It was emphasised also by Kofi Annan in 2004, when he served as a UN Secretary General, in his Report upon the rule of law in which he explained that according to that definition, for the United Nations, the rule of law refers to a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.[2]
To sum it up simply and speaking legally, the whole definition refers to one of the oldest international law principles, namely pacta sunt servanda, i. e. every treaty in force is binding upon the parties to it and must be performed by them in good faith.[3] In such a case, to materialise commitments of state parties, interpretation of treaties is on the table. It is submitted therefore that interpretation rules applicable for international treaties are relevant for understanding adoption and position of these human rights recommendations.
According to the general rule of interpretation of Article 31 of the Vienna Convention on the Law of Treaties (hereinafter also Vienna Convention),[4] a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Moreover, the Vienna Convention specifies that the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes, any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty and any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. Furthermore, together with the context, there shall be considered any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and any relevant rules of international law applicable in the relations between the parties. It is especially the subsequent practice that is relevant for the present issue.
The Vienna Convention determines also supplementary means of interpretation, including the preparatory work of the treaty[5] and the circumstances of its conclusion, to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.[6]
Finally, the Vienna Convention allows a special meaning to be given to a term if it is established that the parties so intended.
The issue in this case might be found in the disagreement upon the status of the recommendations of the UN human rights committees, whether they are legally binding or not and consequently whether not fulfilling these recommendations establishes international responsibility of a state for an internationally wrongful act. For an international responsibility of a state to be established, only two requirements are necessary to be met. First, violation of an international legal obligation and second, attributability of this violation to a particular state. Both these conditions are considered fulfilled in case of human right violation of a state party, however, the issue of a status of human rights committees’ recommendations is a separate issue.
A recommendation is submitted to be a suggestion that something is good or suitable for a particular purpose or job, it also might be advice.[7] There is no specific understanding of the term recommendation in relation to any legal framework. If one refers to the Vienna Convention on the Law of Treaties general rule of interpretation and the term recommendation is interpreted in good faith in accordance with its ordinary meaning, there is no other ordinary meaning of this term even if interpreted in the context and in the light of the object and purpose of such a committee recommendation neither of a concerned treaty.
Giving the ordinary meaning to the terms of the treaty in their context and in the light of the object and purpose of the relevant conventions, all the recommendations are not legally binding. Nevertheless, there have been some efforts to define otherwise, namely in relation to article 31, paragraph 3, letter a) or b) of the Vienna Convention that regulate subsequent agreement or even better, subsequent practice.
However, as also the International Law Commission has analysed, any pronouncement of an expert treaty body cannot as such constitute a subsequent agreement or subsequent practice under article 31, paragraph 3 a) or b) of the Vienna Convention on the Law of Treaties. The main argument focuses on the fact that these provisions require an agreement of the parties to the interpreted treaty or subsequent practice of the parties that establishes their agreement regarding the interpretation of the treaty. The International Law Commission has pointed out relevant reaction of states parties to a draft proposition of the Human Rights Committee (established by the International Covenant on Civil and Political Rights) according to “which its own “general body of jurisprudence”, or the acquiescence by States to that jurisprudence, would constitute subsequent practice under article 31, paragraph 3 letter b) of the Vienna Convention”.[8] Originally, the draft of the Human Rights Committee recommendation included the following proposition: In relation to the general body of jurisprudence generated by the Committee, it may be considered that it constitutes “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” within the sense of article 31(3) b) of the Vienna Convention on the Law of Treaties, or, alternatively, the acquiescence of States parties in those determinations constitutes such practice.[9]
Nevertheless, this draft was criticized by some states, since it could finally lead to an understanding of recommendations being legally binding. Conclusively, the Human Rights Committee did not pursue its proposal and did not refer to article 31, paragraph 3 letter b) of the Vienna Convention. Therefore, it has been confirmed that pronouncements of expert treaty bodies cannot as such constitute subsequent practice under this article. This could be achieved only in case of a subsequent agreement between the parties or subsequent practice that establishes the agreement of the parties themselves regarding the interpretation of a treaty that could arise from, or be referred to by, a pronouncement of a treaty body. Without a subsequent agreement between the parties, human rights committees cannot consider themselves bodies applying competence-competence principle on themselves and therefore submit that their recommendations constitute a subsequent agreement between state parties.
[1] Committee on Human Rights, Committee against Torture, Committee on the Elimination of Racial Discrimination, Committee on the Elimination of Discrimination against Women, Committee on the Rights of the Child, Committee on Persons with Disabilities, Committee on the Protection of the Rights of Migrant Workers and Members of Their Families, Committee on Enforced Disappearances.
[2] Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies, adopted on 23 August 2004, UN Doc. S/2004/616.
[3] Art. 26 of the Vienna Convention on the Law of Treaties, adopted on 23 May 1969, UNTS vol. 1155, p. 331.
[4] For more details see e. g. Aust, 2007, p. 234.
[5] Travaux préparatoires were important in Johnston and others v. Ireland, 18 December 1986, No. 9697/82, § 52.
[6] Article 32 of the Vienna Convention on the Law of Treaties.
[7] Compare Cambridge Dictionary available online https://dictionary.cambridge.org/dictionary/english/recommendation [last visit 31 July 2023].
[8] See e. g. Report of the International Law Commission, UN GAOR, 73rd Sess., Supp. No. 10, at 110–12, paras. 9–15, UN Doc. A/73/10 (2018).
[9] Draft general comment No. 33 (The obligations of States parties under the Optional Protocol to the International Covenant on Civil and Political Rights) (Second revised version as of 18 August 2008) (CCPR/C/GC/33/CRP.3), 25 August 2008, at para. 17.
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