PAIL Institute Publications

PAIL Institute Monograph Series

The Law and Process of the U.N. Human Rights Committee

Author(s): Young, Kirsten A.

Hardcover - 255 pages (2002)
ISBN: 1-57105-062-0

Current Price: US $125.00

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About This Publication

Heretofore, scholarship focusing on the UN Human Rights Committee (HRC) has focused primarily on the interpretation of its parent treaty, the 1966 International Convention on Civil and Political Rights (ICCPR), and on the application, through state reporting and individual complaint procedures, of the norms proscribed within it. In this volume, working from the premise that the substantive effect of the HRC's work cannot be accurately or adequately evaluated without a thorough understanding of the methods by which the HRC produces its jurisprudence, Kirsten Young admirably analyzes the processes by which the HRC arrives at its substantive decisions and considers whether that process comports with international law.

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About The Author(s)

Kirsten Young is currently based in Geneva, where she is European Legal Counsel and Human Rights Program Coordinator for Landmine Survivors Network. She was formerly a Staff Attorney with the Claims Resolution Tribunal in Zurich.

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Reviews

Cecilia Medina, Nordisk Tidsskriff for Mennoskerettigheter

The adoption of the International Covenant on Civil and Political Rights in 1966 was a historic milestone in the development of international human rights law. A treaty had been drafted in the framework of the United Nations that contained very important human rights, serious obligations for States and a body to monitor the conduct of those States. This book, novel in its approach, examines with care and intelligence, mainly through an analysis of individual complaints, how that monitoring Committee has gone about discharging its supervisory functions.

American Journal of International Law (98 A.J.I.L. 876, October 2004)

After an informative introduction to the establishment and development of the HRC (chapter 1), the author immediately turns to her main thesis. Already disclosed in a very well composed preface, that thesis is that the HRC, in order to fulfill its obligations, has to meet the two basic principles of authoritative decision making -- that is, legality and legitimacy. According to the author, legality means that the Committee acts in accordance with law -- is competent to act as it is acting -- while legitimacy is earned through procedural fairness, which is taken to include the requirements of audiatur et altera pars, impartiality, independence, transparency, confidentiality, and expeditious caseload management. If what was at stake here was Carl Schmitt's famous distinction between legality and legitimacy, a lawyer might quickly get alarmed since the claim to legitimacy could potentially conflict with legality and consequently upset the rule of law. But in Young's discussion of the requirements of legality and legitimacy, it is obvious that she sees them as complementary rather than as potentially conflicting. In fact, the above-mentioned elements included in the principle of legitimacy are themselves rooted in the law, and failure to meet the legitimacy standards would, by the same token, result in a violation of the law.

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Availability

The Law and Process of the U.N. Human Rights Committee is available from:

Transnational Publishers, Inc.
Ardsley Park Science & Technology Center
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Ardsley, New York 10502-2615

(914) 693-5100
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The Law and Process of the U.N. Human Rights Committee is also available from Amazon.com.

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Table of Contents

	Foreword					ix
	Editor's Foreword					xi
	Acknowledgements					xiii
	Abbreviations					xv
	Preface					xix
Chapter 1: A Brief History of the Establishment of the Human Rights Committee						1
	I.	The Creation of an International Bill of Rights				1
	II.	The Convention-Based Human Rights System				10
	III.	The Charter-Based Human Rights System				17
Chapter 2: International Norms Relating to the Procedures of the Human Rights Committee						33
	I.	Introduction				29
	II.	The Principle of Legality and Its Application to the Human Rights Committee				30
		A.	The Human Rights Committee's Competence			30
		B.	The Human Rights Committee's Obligation to Fufil Its Mandate			37
		C.	The Cold War			43
		D.	The Principle of Consensus			48
		E.	A New Context			56
	III.	Interpretation of the Constitutive Instruments of the Human Rights Committee: The International Civil and Political Covenant and the Optional Protocol				59
		A.	The Doctrine of Plain Meaning			61
		B.	The Principle of Effectiveness			64
			1.	The Object and Purpose of the ICCPR and the OP		64
			2.	The Doctrine of Implied Powers		69
			3.	The Intention of the Parties		78
			4.	The Practice of the Human Rights Committee		80
	IV.	The Principle of Legitimacy and Its Application to the Human Rights Committee				91
		A.	The Principle of Legitimacy in the International Legal Context			92
			1.	Audiatur et altera pars		93
			2.	Impartiality and Independence		93
			3.	Expeditious Management of Workload		100
			4.	Transparency of Confidentiality		101
		B.	The Principle of Legitimacy in the Human Rights Committee			103
			1.	Impartiality and Independence		108
			2.	Expeditious Management of Workload		115
			3.	Transparency and Confidentiality		119

	i.	Public and Private Meetings		124
	ii.	Distribution of Summary Records		127
	iii.	Publication of Summary Records, Reports, Formal Decisions, and Other Official Documents of the Human Rights Committee or its Subsidiary Bodies		128
	iv.	Publication and Final Decisions		131
	v.	Other Sources of Information		136

	IV.	The Overlap Between the Principles of Legality and Legitimacy				138
Chapter 3: The Procedure of Human Rights Committee in Relation to Communications						141
	I.	Introduction				141
	II.	The Framework of the Communications Procedure				142
		A.	Raising a Claim			142
		B.	Admission of a Claim			146
			1.	The Registration Process		146
			2.	Additional Information		147
			3.	The Elements of Admissibility		147

	i.	Article 1		151
	ii.	Article 2		156
	iii.	Article 3		161
	iv.	Article 3		167
	v.	Articles 2 and 5(2)(b)		168
	vi.	Article 5(2)(a)		172

		C.	Review of Admissibility and Other Decisions			175
		D.	The Human Rights Committee's Views			176
		E.	The Use of Precedent in the Human Rights Committee			182
	III.	The Rules of Evidence and Proof in the Human Rights Committee				184
		A.	Introduction			184
		B.	Evidentiary Rules in International Law			185
		C.	The Production and Elicitation of Evidence			190
			1.	Types of Formal Proof		190
			2.	The Parties and Other Sources of Information		197

	i.	The State Party		200
	ii.	The Author		201
	iii.	Hearsay Evidence		201

3.

Alternatives to Formal Proof

207

	i.	The Doctrine of Judicial Notice and Other Sources of Evidence		207
	ii.	The Use of Previous Decisions as a Basis for Factual Determinations		210

		D.	Basic Conditions to Admissibility of Evidence			213
			1.	Relevancy		216
			2.	The Rule on Time-Limits		219
		E.	The Evaluation of Evidence			224
			1.	The Burden of Production		225
			2.	The Burden of Proof		225
			3.	The Standard of Proof		236

	i.	Sufficiently Substantiated at the Admissibibility Stage		237
	ii.	Sufficiently Substantiated at the Merits Stage		243

		F.	Synthesizing the Human Rights Committee's Application of Principles of Evidence and Proof			246
Chapter 4: Communications Involving Complaints Against States Parties' Judiciaries						249
	I.	Introduction				249
	II.	The Normative Framework for Consideration of Claims Arising Under Article 14(1)				254
		A.	The Principle of "No Fourth Instance"			254
		B.	The Limits of the Principle of "No Fourth Instance": A Tripartite Test			256
	II.	The Human Rights Committee's Application of Principles Developed in the Context of Article 14(1) Claims				264
		A.	Introduction			264
		B.	Application of the Principle of "No Fourth Instance" at the Admissibility Stage			266
			1.	Dismissals Made Purusant to Article 2		266
			2.	Dismissals Made Purusant to Article 3		269
		C.	Application of the Principle of "No Fourth Instance" at the Merits Stage			275
		D.	Application of the Principle of "No Fourth Instance" in Cases Where Admissibility and the Merits Are Considered Simultaneously			287
	IV.	Complaints of State Violation of Other ICCPR Articles by Means of Judicial Action				292
Chapter 4: Conclusions						297

Appendix A:	Cross-Referencing Guide to the Records of the Human Rights Commision		305
Appendix B:	Rules of Procedure of the Human Rights Committee		311
Bibliography			335
Table of Cases			343
Index			347
About the Procedural Aspects of International Law Institute			353
Procedural Aspects of International Law Monograph Series			353
Other PAIL Publications			355