The United Nations Human Rights Committee, established under the International Covenant of Civil and Political Rights, has the power to examine individual complaints on alleged human rights violations. It is noted, however, that the Committee lacks important powers to be as effective as the regional human rights courts in Europe and the Americas. The paper assesses the effectiveness of the Committee by means of a comparative analysis. The comparison takes place within four criteria that are essential in an assessment of a court’s effectiveness: the visibility of the court in the public domain, the adoption of interim measures to hinder the aggravation of the violation, the fact-finding capacity of the court, and the enforcement of the final decisions and the follow-ups thereto. The paper argues that despite the statutory deficiencies of the Covenant and the Optional Protocol, the Committee can be as effective as the regional courts even without an amendment to these instruments. This would be possible if the Committee successfully argues for a binding nature of its interim measures; further, it can overcome the lack of its independent fact-finding capacity through a – thoroughly argued – reversal of burden of proof. If it could also augment its own visibility and the publicity of its decisions, the Committee will finally enhance states’ compliance with its final, non-legally binding ‘views’.
The Committee may welll be able to become as effective as the regional courts of human rights, and could in fact evolve into an effective ‘court’ of human rights on a global level.
Table of Contents
I Introduction – effective Enforcement of Human rights
A Protection of Human Rights on an International Level
B Identifying the Thesis
C Outline of Paper
II Comparing human rights regimes
III The protection system of the UN Human Rights Committee
A The Reporting System
B Inter-State Complaints
C Individual Complaints
IV Protecting human rights in Europe
D Overview – Human Rights in Europe
E The Change of the system of Protection under the European Convention of Human Rights
1 Commission and Court – The old System
2 Permanent Court – The new System
IV Protecting human rights in the Americas
A The Organization of American States and the American Convention of Human Rights
B Protection System under the American Convention of Human Rights
V Defining criteria For the comparison of effectiveness
1 Effective Enforcement
2 Criteria of Comparison
VI Publicity and Visiblity
A The Importance of Publicity and Visibility in Protecting Human Rights
B European Court of Human Rights
1 Caseload
2 Publicity
C Human Rights Committee
1 Caseloa
2 The Problem of Conflicting Jurisdiction
3 Visibility
D Conclusion – Enhancing the Visibility of the Human Rights Committee
VII Interim Measures
A The Importance of Interim Measures
1 Overview
2 The Problem of Delay
B Interim Measures in the European System
1 Scope of Interim Measures
2 Non-Compliance with Request
3 Is an interim measure binding?
4 Possible Reason for the Decision in ‘Mamatkulov’
C Interim Measures in the American System
1 Scope of Interim Measures
2 Binding Nature of an Interim Measure?
D United Nations Human Rights Committee
1 Scope of Interim Measures
2 Non-Compliance with Request
E Conclusion – Can the Committee Establish a Binding Nature of its Interim Measures?
VIII Fact-finding capacity
A The Importance of Independent Fact-Finding
B Fact-Finding in the European System
1 Intervention of Third Parties during the Written Proceedings
2 Request of evidence
3 In-loco fact-finding procedures
4 Oral proceeding
C Fact-Finding in the American Regime
1 Inter-American Commission
2 Inter-American Court
D Fact-Finding Capacity of the Human Rights Committee
1 Article 5 (1) of the Optional Protocol to the ICCPR
2 Burden of Proof
E Conclusion – Is the Reversal of Burden Of Proof an Adequate Substitute for an Independent Fact-Finding Capacity?
1 Protection of the Victim
2 Other Possibilities for the Committee to Establish Facts
3 Burden of Proof as Adequate Fact-Finding
IX Enforcement AND follow-up procedures
A Europe
1 Nature of Judgments
2 Supervisory Role of the Committee of Ministers
B Human Rights Committee
1 The nature of the views
2 How to Push Compliance with Final Decisions
C Enforcement and Follow-up – Conclusion
X Conclusion – Can the united nations human rights committee evolve into an effective global court of human rights?
Research Objectives & Key Themes
This research paper investigates whether the United Nations Human Rights Committee, despite its statutory limitations, can evolve into an effective global court of human rights comparable to regional human rights systems in Europe and the Americas. The central research question examines if the Committee can enhance its effectiveness through internal adjustments and improved procedures rather than formal treaty amendments.
- Comparative effectiveness of global vs. regional human rights mechanisms
- Visibility and publicity strategies for human rights bodies
- The role and binding nature of interim measures in international law
- Fact-finding capacities and the application of burden of proof standards
- Enforcement mechanisms and follow-up procedures for state compliance
Excerpt from the Book
D United Nations Human Rights Committee
Neither the Covenant itself, nor the Optional Protocol thereto contains a provision regarding the power of the ICCPR Committee to issue interim measures. However, the Rules of Procedure adopted in conformity with Article 39 of the Convention mention the right of the Committee to adopt provisional measures.
1 Scope of Interim Measures
Rule 86 of the Rules of Procedure provides that prior to forwarding views to the State Party concerned, the Committee “may … inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation.” Like the European Court and the Inter-American Court or Commission, the Committee issued requests only if the life or physical integrity of the complainant were at stake.
One case, however seems to go beyond that requirement. In Ominayak v Canada the complainant claimed that Canada was violating the right of the member of his Band to dispose freely of their natural wealth and resources, because their land had been destroyed through oil and gas exploration. Even though no life or personal integrity was endangered, the Committee issued a request under rule 86. However, the Committee itself did not want to set a precedent and made it clear in its final decision that the author had created the impression that the Band would be extinct if nothing happened, so that it was ultimately linked to a matter of life. Nevertheless, it shows at least that the Committee is willing to make such requests on the basis of not absolute convincing evidence if life was at stake.
Summary of Chapters
I Introduction – effective Enforcement of Human rights: Sets the stage by examining international human rights monitoring and defining the thesis regarding the Committee's potential to evolve into a functional judicial body.
II Comparing human rights regimes: Identifies individual complaint procedures as the only truly comparable mechanism between global and regional human rights systems for evaluating effectiveness.
III The protection system of the UN Human Rights Committee: Details the Committee's existing procedural functions, specifically the reporting system, inter-state complaints, and individual communication processes.
IV Protecting human rights in Europe: Provides an overview of the European system and analyzes the impact of Protocol 11 on moving toward a permanent court structure.
IV Protecting human rights in the Americas: Examines the two-tiered system of the Inter-American Commission and Court, focusing on the mandatory nature of individual petitions.
V Defining criteria For the comparison of effectiveness: Establishes the four assessment criteria: visibility, interim measures, fact-finding capacity, and enforcement/follow-up procedures.
VI Publicity and Visiblity: Evaluates the necessity of media presence and caseload publicity for institutional legitimacy, comparing the Committee's current approach with the European Court’s exemplary model.
VII Interim Measures: Analyzes the importance of provisional measures in preventing irreparable harm, discussing the binding nature of these measures within different legal frameworks.
VIII Fact-finding capacity: Discusses the Committee's limited investigative powers and argues for the use of the reversal of the burden of proof to overcome evidentiary deficiencies.
IX Enforcement AND follow-up procedures: Addresses the lack of a formal enforcement mechanism for the Committee's views and proposes follow-up procedures as a means to exert political and moral pressure on states.
X Conclusion – Can the united nations human rights committee evolve into an effective global court of human rights?: Summarizes the arguments, reiterating that the Committee can achieve higher effectiveness through systematic procedural improvements and consistent practice.
Keywords
United Nations Human Rights Committee, ICCPR, Optional Protocol, individual complaints, human rights effectiveness, interim measures, fact-finding, burden of proof, enforcement, follow-up procedures, international law, state compliance, jurisprudence, European Court of Human Rights, Inter-American Court of Human Rights.
Frequently Asked Questions
What is the primary subject of this research paper?
The paper explores the institutional potential of the UN Human Rights Committee to function as an effective, quasi-judicial global court for human rights, despite lacking formal statutory powers equivalent to regional courts.
What are the core thematic fields analyzed?
The research focuses on four specific areas: the visibility of the Committee in the public sphere, the legal status and necessity of interim measures, the ability to establish facts (fact-finding), and mechanisms for enforcing final decisions.
What is the central research question?
The core question is whether the Committee can evolve into an effective global court by optimizing its existing procedures and adopting sophisticated legal interpretations, without requiring formal amendments to its founding treaties.
Which scientific methodology is utilized?
The author employs a comparative legal analysis, contrasting the Committee's procedures with the more mature, binding mechanisms of the European and Inter-American human rights regimes.
What does the main body of the work cover?
The main part of the paper investigates procedural gaps in the Committee’s operation—such as the absence of binding interim measures and independent fact-finding—and proposes tactical solutions like reversing the burden of proof and establishing proactive follow-up procedures.
Which keywords characterize the paper?
Key terms include human rights enforcement, the ICCPR and Optional Protocol, interim measures, fact-finding, burden of proof, state compliance, and institutional visibility.
How does the paper propose handling the Committee's lack of fact-finding power?
The author suggests that the Committee should strictly apply a policy of reversing the burden of proof, requiring states to provide concrete evidence when claims are plausibly substantiated by complainants, especially in cases involving life, torture, or arbitrary arrest.
Why is the "follow-up procedure" considered important for compliance?
Since the Committee’s views are not formally binding, a robust follow-up procedure creates an ongoing monitoring loop that publicly exposes non-compliant states, thereby utilizing moral and political pressure to encourage states to implement recommended remedies.
- Arbeit zitieren
- Frederic Bostedt (Autor:in), 2003, Can the United Nations Human Rights Committee Evolve into an Effective ‘Court’ of Human Rights?, München, GRIN Verlag, https://www.hausarbeiten.de/document/73189
