UNITED NATIONS SHAPES WORLD HUMAN RIGHTS JURISPRUDENCE
A review of J. Th. Moller and A. de Zayas. The Case Law of the UN Human Rights Committee 1977-2008. Engel Publishers, 2009.
The United Nations’ role in shaping the future world is greatest in the human rights jurisprudence it has developed to help build a world of human dignity and progress based on respect for human rights. At the forefront of this work has been the UN Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights (1966). And from the outset of this work in 1977 have been two Secretariat pioneers in developing the case law of the Human Rights Committee when it considers petitions from individuals claiming violations of their rights: Jakob Moller (Iceland) and Alfred de Zayas (USA). Moller was the first Chief of the Petitions branch of what is today the Office of High Commissioner for Human Rights and de Zayas was his colleague, who eventually succeeded him as Chief. They have just published a monumental Handbook on the case law of the Human Rights Committee from its inception in 1977 and, over the next three decades, to 2008.
It is staggering how much the Human Rights Committee has influenced the human rights jurisprudence of the world, as is striking from reading this exceedingly important book. The first thing that stands out from the case law is that the Human Rights Committee is in the process of clarifying the constitutional or public order of the world and its corresponding legal norms. The Human Rights Committee is articulating the principle of international supervision of human rights, namely that what is legal or illegal is determined, in the final instance, by a UN Human Rights body. 110 States have so far ratified the petitions procedure operated by the Committee and, undoubtedly, the remaining States will do so when they see the light – as eventually they must if they are to do justice to their own citizens.
The second thing that stands out is that the Human Rights Committee is in the process of humanizing sovereignty. The Committee insists that governments are not at liberty to act as they see fit but must conform to international human rights standards. Of equal significance, third, the Human Rights Committee has just held in a landmark case that the foremost United Nations organ, the Security Council, must comply with international human rights norms when its actions affect individuals. This is a breathtaking decision of the Human Rights Committee in the case of Sayadi and others v. Belgium (2008). In that case, Belgium argued that it was shielded from scrutiny because it was acting to implement a Security Council resolution. ‘No’, the Committee replied; Belgium must comply with its human rights obligations, which took precedence. The Security Council cannot act in breach of human rights.
Fourth, the Human Rights Committee has insisted
that even in times of public emergency
there can be no excuses for violating fundamental
rights such as the right to life or not
to be tortured. In a time when human rights
are being flouted in the name of acting
against terrorism, the Human Rights Committee
holds aloft the banner of international
human rights law and insists that no Government
is above the law.
Fifth, among the legal precepts developed by
the Human Rights Committee are the following:
- Governments are legally bound to take reasonable and appropriate measures to protect people within their jurisdiction or control.
- The law must strictly control and limit the circumstances in which a person may be deprived of his or her life by the authorities of the State.
- A State, by invoking the existence of exceptional circumstances cannot evade the obligations it has undertaken under international human rights law by ratifying the Covenant.
- A situation in which the functions and competences of the judiciary and the executive are not clearly distinguishable or where the executive is able to control or direct the judiciary is incompatible with the notion of an independent and impartial judiciary.
- Governments are under a legal obligation to ensure that remedies for violations are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture.
- Where violations have taken place Governments must take measures to ensure that similar violations do not take place in the future.
- Governments should take specific and effective measures to prevent the disappearance of individuals and establish effective facilities and procedures to investigate thoroughly by an appropriate and impartial body, cases of missing and disappeared persons.
- Being subjected to incommunicado detention in an unknown location constitutes torture and cruel and inhuman treatment.
- Women and men are entitled to equal treatment in the application of laws.
Sixth, every lawyer, every judge, every public-spirited citizen, will want to consult this fascinating book; because it tells us what is legally right and legally wrong; how to judge our governments, our societies, our United Nations and ourselves. That is the singular merit of this landmark book for which the authors deserve our highest appreciation and our congratulations.
As the authors write in their conclusion to the book: “The Committee’s case law will undoubtedly continue evolving so as to reflect the changing human rights needs and priorities of our societies... Coherent and consistent jurisprudence is the best way to persuade States parties to the Covenant and Optional Protocol that it is in their own interest to understand the practical reach of the Covenant and to apply it.”
