The Human Rights Committee: A Mechanism of Noncompliance and Failure

By: Ben Haight

“The Human Rights Committee has been unable to penetrate either the surface or the conscience of most states to meaningfully advance the ICCPR.”

-Makau wa Mutua[i]

The International Covenant on Civil and Political Rights (ICCPR) is an international treaty that was adopted by the United Nations on December 16, 1966 and came into force on March 23, 1976. The ICCPR is intended to protect various rights such as the right of self-determination, right to life, right to privacy, freedom of religion, freedom of assembly, freedom of speech, and various due process rights. The Covenant has 74 signatories and 167 parties.

Part IV of the ICCPR created the Human Rights Committee (HRC).[ii] The HRC is a body of 18 experts, who are elected by member states, that meets three times a year. The HRC has three main functions: examining state reports and comments on them, producing general comments for state parties, and considering individual complaints.[iii] The HRC must be distinguished from the Commission on Human Rights, which is a UN political forum where state parties may debate human rights issues.

Human Rights scholar and professor of law Makau wa Mutua writes, “The primary purpose of human rights law is to contain the predatory impulses of the state.”[iv] This can only be accomplished with human rights laws, which cut through the sovereignty of member states. Without accompanying domestic legislation that makes the human rights law justiciable or an international enforcement mechanism with legal authority, the “predatory impulses” will be difficult to contain. While the HRC was created for this purpose, it has remained largely ineffective and the ICCPR is consistently ignored throughout the world.

Article 2(2) states that “Each State Party to the present Covenant undertakes to take the necessary steps…to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” In other words, state parties must pass domestic legislation to make the ICCPR self-executing, giving individuals a private right of action for violations of the treaty.[v] If state parties do not internalize the ICCPR, the functions and reports of the HRC will be ignored.[vi] Individual complainants must exhaust any domestic remedies, which are not always available, before the committee will take notice.[vii]

Unfortunately for the HRC, the ICCPR uses very broad and vague language and has not been domestically adopted by most state parties. The vague language allows further noncompliance in autocratic regimes and the most consistent human rights violators. Furthermore, liberal democracies claim that the rights protected in the ICCPR are already part of their domestic law and additional self-executing legislation is not necessary.[viii] This makes it extremely difficult for the HRC, the ICCPR’s intended enforcement body, to make any positive impact or effectively address any human rights issues.

The HRC and its 18 expert members are meant to be independent of the UN and not representative of their home state. It is the UN Secretary General, however, that provides the HRC with many of its resources.[ix] Because of this, the HRC tends to be part of the UN and, therefore, subject to the continuous politics and beauracratic tendencies of the larger organization. Additionally, the HRC has limited resources and struggles to keep pace with the influx of reports and individual complaints.[x] Elected HRC experts also lack tenure and must be re-elected every four years. This lack of independence makes it impossible for human rights violations to be addressed absent politics.[xi]

The ICCPR empowers the HRC to transmit to states “such general comments as it may consider appropriate.”[xii] The ICCPR did not give any direction to the HRC, however, on how to best accomplish this role. Furthermore, the views expressed by the HRC in these reports are not legally binding and have taken a passive tone.[xiii] Because of this, the HRC’s reports are largely ignored.

A constant conflict persists in the realm of international treaties. Most states support their purpose but reject any kind of strong enforcement mechanism through the use of treaty reservations. In the absence of legal and enforcement authority, treaties will remain largely symbolic and do little to advance human rights law. By establishing an extremely powerless Human Rights Committee, the ICCPR is inadequate and has failed to demand universal compliance.

 

Ben Haight is third-year law student at The Pennsylvania State University. Ben is a Senior Editor on the Penn State Journal of Law and International Affairs and is an Ensign in the Judge Advocate General’s Corps, U.S. Navy.

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