Available in Russian
Author: Irina Bogatyrenko
DOI: 10.21128/2226-2059-2023-2-139-155
Keywords: UN expert treaty bodies; pronouncements of human rights treaty bodies; human rights; interpretation
The article deals with the problem of the non-binding force of legal pronouncements by expert human rights treaty bodies. This is one of the main problems in the functioning of the entire system of treaty monitoring bodies established within the framework of universal international agreements on human rights. The effectiveness of the monitoring mechanism of human rights treaty bodies depends to a large extent on the impact that the pronouncements of the treaty bodies have on national legal orders. The practice of treaty bodies primarily affects national legislation and the protection of human rights at the national level, although it can also influence the development of international law. The purpose of the article is to trace how the attitude of the international community, represented by the International Court of Justice of the United Nations and the UN International Law Commission, as well as that of States, has changed towards pronouncements made by human rights treaty bodies and towards these pronouncements’ significance for international and national law, respectively. The absence of legally binding force of these pronouncements does not mean that they have no legal value at all. On the contrary, States, recognizing the importance of these pronouncements, use various mechanisms to implement them. Therefore, the article analyzes the practices of international bodies and of national courts of States Parties to human rights agreements with respect to the judgments of treaty bodies. An analysis of States’ practices shows that treaty body pronouncements are increasingly used in national courts. Recourse to the judgments of the treaty bodies in interpreting human rights is likely to depend to a large extent on the authority of the treaty bodies and on the specific provisions of their pronouncements. However, in the absence of binding powers, treaty bodies need to ensure their legitimacy through their internal procedures and the clarity of their decisions’ legal reasoning. In addition, it makes sense, in light of the rules of international law of treaty interpretation, to assess the capacity of treaty bodies to interpret the human rights treaties they are called upon to monitor.
About the author: Irina Bogatyrenko – Ph.D. Student, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia.
Citation: Bogatyrenko I. (2023) Yuridicheskaya sila suzhdeniy ekspertnykh dogovornykh organov po pravam cheloveka [Legal force of pronouncements by expert human rights treaty bodies]. Mezhdunarodnoe pravosudie, vol. 13, no. 2, pp. 139–155. (In Russian).
References
Abashidze A.Kh., Solntsev A.M. (2012) Mirovoe razreshenie mezhdunarodnykh sporov: sovremennye problemy: monografiya [World resolution of international disputes: modern problems: a monograph], Moscow: Rossiyskiy universitet druzhby narodov. (In Russian).
Van Alebeek R., Nollkaemper A. (2012) The Legal Status of Decisions by Human Rights Treaty Bodies in National Law. In: Keller H., Ulfstein G. (eds.) Un Human Rights Treaty Bodies. Law and Legitimacy, Cambridge: Cambridge University Press, pp. 356–413.
Avtonomov A. (2013) Rassmotrenie individual’nykh soobshcheniy dogovornymi organami v sisteme Organizatsii Ob’edinennykh Natsiy [Consideration of individual communications by treaty bodies in the Organization of the United Nations system]. Mezhdunarodnoe pravosudie, vol. 3, no. 3, pp. 78–94. (In Russian).
Azaria D. (2020) The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of the Interpretation of Treaties. International Community Law Review, vol. 22, no. 1, pp. 33–60.
Davidson S. (2002) Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee. In: Huscroft G., Rishworth P. (eds.) Litigating Rights, Oxford: Hart Publishing, pp. 305–321.
Harrington A.R. (2012) Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties. Duke Journal of Comparative & International Law, vol. 22, no. 2, pp. 153–182.
Johnstone R.L. (2007) Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body. Human Rights Law Review, vol. 7, no. 1, pp. 173–200.
Ispolinov A.S. (2022) Sila i slabost’ universal’nykh dogovorov o zashchite prav cheloveka [Strength and weakness of universal human rights treaties]. Rossiyskiy yuridicheskiy zhurnal, no. 3, pp. 26–43. (In Russian).
Ispolinov A.S. (2016) Rol’ posleduyushchikh soglasheniy (subsequent agreements) gosudarstv v prave mezhdunarodnykh dogovorov [Effect of subsequent practice in law of treaties]. Zakonodatel’stvo, no. 10, pp. 79–87. (In Russian).
Ispolinov A.S. (2017) Pretsedent v mezhdunarodnom prave (na primere mezhdunarodnogo suda OON, ESPCh, VTO i suda EAES) [Precedent in international law: work of International Court of Justice, European Court of Human Rights, Dispute Settlement Body WTO, The Court of the Eurasian Economic Union]. Moskovskiy zhurnal mezhdunarodnogo prava, no. 1, pp. 78–87. (In Russian).
Kadysheva O. (2022) Neizvestnaya “sanktsionnaya voyna” i vozmozhnosti mezhdunarodnogo pravosudiya [Unknown “sanctions war” and the possibilities of international justice]. Mezhdunarodnoe pravosudie, vol. 12, no. 4, pp. 95–111. (In Russian).
Mechlem K. (2021) Treaty Bodies and the Interpretation of Human Rights. Vanderbilt Law Review, vol. 42, no. 3, pp. 905–947.
Nowak M. (2005) Un Covenant on Civil and Political Rights. CCPR Commentary, 2nd ed., Kehl am Rhein: Engel Verlag.
Pan К. (2022) Difference between the ICJ and the CERD Committee: A Comment on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) Case. Chinese Journal of International Law, vol. 21, no. 1, pp. 195–211.
Schmidt M.G. (2000) Follow-Up Mechanisms before UN Human Rights Treaty Bodies and the UN Mechanisms Beyond. In: Bayefsky A. (ed.) The UN Human Rights Treaty System in the 21st Century, The Hague: Kluwer Law International, pp. 233–249.
Shelton D. (2011) The Legal Status of Normative Pronouncements of Human Rights Treaty Bodies. In: Hestermeyer H.P. et al. (eds.) Coexistence, Cooperation and Solidarity. Liber Amicorum Rüdiger Wolfrum. vol. 1, Leiden: Martinus Nijhoff Publishers, pp. 553–575.
Solntsev A., Koneva A. (2013) Yuridicheskiy status aktov dogovornykh organov po pravam cheloveka v natsional’nykh pravovykh sistemakh [Legal status of acts of UN human rights treaty bodies in national legal systems]. Mezhdunarodnoe pravosudie, vol. 3, no. 4, pp. 82–93. (In Russian).
Tuzmukhamedov B.R. (2021) Universal’nye dogovornye organy po pravam cheloveka i ikh mesto sredi mezhdunarodnykh institutov [Universal human rights treaty bodies and their place among international institutions]. Gosudarstvo i pravo, no. 7, pp. 151–160. (In Russian).
Ulfstein G. (2022) Qatar v. United Arab Emirates. American Journal of International Law, vol. 116, no. 2, pp. 397–403
Zimnenko B.L. (2017) O meste i znachenii praktiki mezhgosudarstvennykh organov po zashchite prav i svobod cheloveka v pravovoy sisteme Rossiyskoy Federatsii (na primere rassmotreniya sudami Rossiyskoy Federatsii konkretnykh del) [The role and significance of the practice of interstate organs for the protection of human rights and freedoms in the legal system of the Russian Federation (cases considered by the courts of the Russian Federation)]. Moskovskiy zhurnal mezhdunarodnogo prava, no. 3, pp. 92–129. (In Russian).