UN HUMAN RIGHTS TREATY MONITORING BODIES BEFORE DOMESTIC COURTS

Abstract

This article analyses both cooperative and confrontational interactions between domestic judges and UN human rights treaty monitoring bodies. Based on a number of cases collected through multiple databases, this article addresses the basis on which the monitoring bodies encourage the domestic acceptance of their views, general comments, and reports; how domestic courts engage with these findings; on what basis; and why some courts are more willing to engage with these findings. A key argument is that judicial accommodation is highly selective; domestic judges occasionally avoid, discount, and contest the interpretation put forward by the treaty monitoring bodies and thereby pose a challenge to their legitimacy.

I. Introduction

UN human rights treaty monitoring bodies often rely on domestic endorsement in order to demonstrate the practical significance of their work. The monitoring bodies publish comments, observations and views, expecting, if not formally obliging, States parties to take action in response to them at the domestic level. When treaty bodies issue General Comments, they do so in the anticipation that they will not only guide States when they submit their reports but will also have an impact on wider domestic human rights practices. When they adopt ‘Views’ arising from individual communications, ¹ they anticipate that a remedy will be provided.

This article seeks to understand and assess the engagement of domestic courts with the formally non-binding instruments adopted by UN human rights treaty monitoring bodies. In this article, ‘formally non-binding’ instruments denote in a narrowly defined legal sense those which do not qualify as treaties or reflect custom or general principles of law. ² For the purpose of this article, the initial assumption is that the comments, observations, recommendations and views adopted by the human rights treaty-monitoring bodies are, in themselves, formally non-binding at the international level. Yet it is one of the purposes of the article to discuss whether these instruments still give rise to any obligations on the part of States parties. This article focuses on judicial organs because domestic judges are circumscribed in terms of the documents they can utilize in their judicial reasoning. Legislative and executive organs are generally not as constrained as judges in taking account of non-binding international instruments in their work. Nevertheless, despite the constraints of judicial settings, judges, from time to time, engage with the documents adopted by UN human rights treaty monitoring bodies. This invites analysis of the normative grounds on which national judges, through their reasoning, interact with the monitoring bodies.

This article contributes to broader legal scholarship on the domestic reception of international or foreign legal documents which are not formally given effect in the domestic legal order. Consistent interpretation, systemic integration and judicial comity allow national judges to refer, selectively, to non-ratified treaties, unincorporated treaties, the recommendations of international organizations and the judgments of foreign courts. ³ Studies have been conducted in the field of human rights, which explore the practice of domestic judges in citing foreign court decisions, unincorporated human rights treaties, and the judgments of regional human rights courts that do not have formal domestic legal effect. ⁴ Despite the rich literature on judicial engagement with formally non-binding human rights instruments and cases, relatively limited academic attention has been paid to domestic judicial engagement with the work of the UN human rights treaty-monitoring bodies. ⁵

This article first gives an overview of the narratives employed by the monitoring bodies to encourage domestic compliance with the comments, observations, recommendations and views (collectively termed ‘findings’ in this article) adopted by the ten bodies tasked with monitoring the implementation of the ten core UN human rights treaties in force as of 1 December 2016 (section II below). ⁶ Based upon a number of reported cases, ⁷ it analyses how national courts give effect ⁸ to findings which are generally regarded as non-binding at the international level (section III) and on what basis (section IV). Building on the analysis of court decisions, it then identifies several reasons why some courts are more willing to engage with these findings than others (section V). It also critically assesses the normative grounds employed by domestic courts in terms of their consistency and deference to domestic political organs.

The study of a limited number of court decisions shows the extent to which the monitoring bodies’ findings have permeated the reasoning of national judges. Nevertheless, it is not clear whether it can be concluded that ‘most courts have recognised that … the treaty bodies’ interpretations deserve to be given considerable weight’, as the ILA's Committee on International Human Rights Law and Practice (1997–2008) observed in its 2004 Berlin report ⁹ which had assembled and analysed an extensive body of court decisions. From the, albeit limited, survey of court decisions undertaken here, a variety of judicial receptions of the findings of UN human rights bodies can be seen. While domestic courts do indeed take account of treaty body findings into their reasoning, some are simply not familiar with their work and, even if they are, judges also occasionally avoid, discount and contest the interpretations put forward by the treaty bodies. By studying the judicial amenability to the findings of monitoring bodies, this article highlights the selective and partial accommodation of international findings by domestic courts, which both approve and contest the treaty bodies’ opinions and their legitimacy.

II. The approach of the human rights monitoring bodies to Inducing compliance

Human rights treaty monitoring bodies attempt to encourage the domestic acceptance of their findings in a variety of different ways. One institutionalised means of doing so is through the appointment of a Special Rapporteur for the Follow-Up of Views, the first of which was established in 1990 by the Human Rights Committee (HRC) ¹⁰ and whose practice has provided a template for other monitoring bodies. Another important tool used to disseminate the work of the monitoring bodies is the dialogue that treaty monitoring bodies periodically have with delegations from State parties. ¹¹ The treaty monitoring bodies also emphasize the significance of their findings in both a general and normative sense, encouraging, or even seeking to oblige, member States to take particular steps at the domestic level. The HRC has been a key player in such attempts to augment the normative significance of its findings. ¹² Their use of an imperative vocabulary is evident, particularly with regard to interim measures. ¹³ The HRC has developed jurisprudence according to which non-compliance with interim measures could constitute not only regrettable behaviour but also a breach of State parties’ obligations under the Optional Protocol. ¹⁴ In 2005, the Committee against Torture (CAT) followed suit and identified the existence of an obligation to comply with its interim measures. ¹⁵ Despite oppositions from States, the HRC maintained its position in General Comment No. 33 in 2009, reiterating that a State party must comply with interim measures as part of its obligation to respect in good faith the individual communication procedure. ¹⁶

The HRC has also tried to invest its Views on individual communications with an imperative character. In an early draft of what became the HRC's General Comment No. 33 concerning the obligations of States parties under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), the HRC stressed the legal character of the Committee's Views. According to the draft:

the views issued by the Committee under the Optional Protocol exhibit most of the characteristics of a judicial decision … Hence, the work of the Committee is to be regarded as determinative of the issues presented. … [The] terminology might be thought to imply that the Committee's views are purely advisory or recommendatory. However, this is not a justifiable conclusion … [T]he views of the Committee … represent an authoritative determination of a body established under the Covenant itself as the [an] authentic interpreter of that instrument. … A finding of a violation by the Committee engages the legal obligation of the State party to reconsider the matter. … [There is] an obligation to respect the views of the Committee in the given case. ¹⁷

Under the draft, obligation to respect the Views of the HRC arose from a States’ obligation to provide an effective remedy and to act in good faith. ¹⁸ The HRC's emphasis on the legal character of its Views was strongly supported by Amnesty International, ¹⁹ whilst Mexico also found the text generally acceptable. ²⁰ However, many other States - including Belgium, France, Germany, Japan, Norway, Russia, Sweden, Switzerland, UK and US - expressed their disagreement with the draft's obligatory tone. ²¹ Germany emphasized that ‘the views formulated by the Committee cannot develop a legally binding effect’. ²² The UK made it clear that the Committee is neither a court nor a body with a quasi-judicial mandate. ²³ The US expressed its fundamental disagreement with the content of the draft and urged the HRC to withdraw it. ²⁴ In addition, France, Japan, Norway and Russia expressly denied the obligatory character of interim measures. Japan reiterated that ‘the interim measures do not have any legal binding force’. ²⁵ The anxiety prevailing among States parties was reflected in Sweden's concern that the draft would extend the HRC's competence ‘beyond what the states intended’. ²⁶

Having received strong criticism from States parties, the HRC revised the language of the document. According to the final version, its Views exhibit ‘some of the principal characteristics of a judicial decision’—as opposed to ‘most of the characteristics of a judicial decision’. ²⁷ While Views continue to be described as ‘an authoritative determination’, General Comment No. 33 in the end omitted the critical phrase ‘authentic interpreter’ when describing the role of the Committee. ²⁸ The ‘obligation to respect the views of the Committee’ was deleted; instead, the final version referred to a ‘duty to cooperate with the Committee’ arising from an application of the principle of good faith to the observance of all treaty obligations. ²⁹ On the whole, therefore, the HRC retreated from its proactive stance on the imperative character of its Views. What the HRC still insisted upon was the obligation of States parties to implement interim measures. ³⁰

III. Practices of judicial engagement

The episode regarding General Comment No. 33 underlines the importance of considering how the findings of the monitoring bodies have been received by domestic authorities. Domestic engagement with UN human rights treaty bodies can be assessed from multiple perspectives. One approach is to analyse the rate of compliance with their recommendations. An indication of this is the level of satisfactory follow-up by States parties to the findings of the human rights treaties. According to 2016 reports, 43 per cent of the CAT's communications (which found violations) received satisfactory or partially satisfactory responses ³¹ and 33 per cent of the communications of the Committee on the Elimination of Racial Discrimination (CERD) received such responses. ³² For the HRC, the 2009 report records a comparable response rate of 15 per cent. ³³ The focus of this article is not, however, on general rates of compliance but on the use of treaty body findings in judicial reasoning. The cases analysed ³⁴ can be divided according to the types of the treaty bodies’ findings, the purposes for which they are employed, and the weight accorded to them. This section will describe the types of findings to be considered, before undertaking an analysis of the normative bases for domestic courts to engage with the monitoring bodies.

A. Types of Findings

1. General comments and recommendations addressed to all States parties

The UN human rights treaty monitoring bodies adopt broadly three forms of documents: ³⁵ (i) findings on issues of a general nature addressed to all States parties, namely, General Comments and Recommendations; ³⁶ (ii) findings addressed to a particular State after the consideration of its State report, namely, Concluding Observations ³⁷ and Concluding Comments; ³⁸ and (iii) findings concerning individual communications or petitions, namely, Views or Decisions ³⁹ and Suggestions and Recommendations. ⁴⁰

Domestic courts have frequently taken account of General Comments and Recommendations, which not only inform judges about the substance of law, but also give flexibility to judges in determining how they should be reflected. There are abundant examples ⁴¹ of judicial engagement with the HRC's General Comments on the ICCPR and its protocols. ⁴² For example, among the 35 General Comments adopted by the HRC from 1981 to 2014, General Comment No. 7 ⁴³ on the prohibition of torture was invoked in Bangladesh Legal Aid in 2010 by the Bangladesh High Court, which relied on the HRC to extend the prohibition of torture to corporal punishment. ⁴⁴ General Comments Nos. 8 (on the right to liberty), 16 (regarding the notion of arbitrariness), 20 (on the right to freedom from torture), and 23 (on the right to a fair hearing) were drawn on by the Victorian Civil and Administrative Tribunal in Kracke in 2009 in Australia to construe ICCPR provisions. ⁴⁵

General Comments Nos. 15 and 29 were referred to in A and Others (No. 1) concerning the detention of suspected foreign terrorists, in which Lord Bingham, for the majority in the House of Lords, drew on the ICCPR and its General Comments. ⁴⁶ General Comment No. 18 concerning non-discrimination was relied upon in Ts'epe in 2005 by the Lesotho Court of Appeal when interpreting Article 26 of the ICCPR. ⁴⁷ The same General Comment was invoked by the Kenyan High Court in RM in 2006 when construing the scope of non-discrimination principle, as well as by the Swiss Federal Supreme Court in its Judgment of 10 April 1996 when finding violations of Articles 2, 14, and 26 of the ICCPR. ⁴⁸ General Comment No. 20 on the prohibition of torture was cited by Lord Bingham in A and Others v Home Secretary (No. 2) as one of a number of international materials that demonstrated that the prohibition of torture would require States to do more than eschew the practice of torture. ⁴⁹ The same General Comment informed the decision of the Court in the Canadian case of Suresh in 2002. ⁵⁰ Likewise, the Federal Court of Appeal in Canada in Almrei in 2005 made use of General Comment No. 20 to construe non-refoulement under Article 7 of the ICCPR. ⁵¹ Finally, General Comment No. 35 on liberty and security of person was relied upon by the High Court of Kenya in 2015 in the Millicent Awuor Omuya case when interpreting Article 9(1) of the ICCPR and ultimately finding that the detention of the petitioners in health care facilities, who were unable to pay their medical fees, was arbitrary and unconstitutional. ⁵²

Turning to the domestic reception of the work of the Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3 was made use of by the Constitutional Court of Peru in Cuzco Bar Association in 2005 for the purpose of identifying and explaining the ‘principle of progressivity’ in the achievement of economic and social rights. ⁵³ General Comment No. 4 was drawn on by the Supreme Court of British Columbia in Victoria (City) v Adams in 2008 in connection with Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). ⁵⁴ General Comment No. 13 on the right to education was referred to by the German Federal Constitutional Court in 2013 when upholding the constitutionality of general tuition fees at universities. ⁵⁵ General Comment No. 14 was relied upon by the High Court of Delhi in the Mandal case in 2010 when construing the meaning of the right to health under the ICESCR. ⁵⁶

The opinions of other human rights monitoring bodies have likewise guided domestic judicial reasoning. For instance, General Recommendation No. 23 of the CERD regarding indigenous land rights was drawn on by the Belize Supreme Court in Cal in 2007, ⁵⁷ which noted that the CERD ‘confirmed that the failure of states to recognize and respect indigenous customary land tenure is a form of racial discrimination’. ⁵⁸ The observation of the Committee on the Elimination of Discrimination against Women (CEDAW) was used in Bangladesh Legal Aid in 2010, in which the Bangladesh High Court also made reference to the position of the CAT on the absolute and non-derogable nature of the prohibition of torture. ⁵⁹ In the Test Trial Fund Clara Wichmann case in 2005, the CEDAW's General Recommendation No. 23 on political and public life was invoked by the Dutch District Court when interpreting Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women. ⁶⁰ Overall, there is no shortage of domestic court cases whose reasoning has drawn on the treaty bodies’ general interpretive positions.

At the same time, judges can be openly critical of General Comments. Critical remarks were made, for instance, by the UK's High Court in AB in 2017. ⁶¹ The claimant, AB, was a youth offender who had a record of violent behaviour towards prisoner officers and other inmates. The claimant contended that his solitary confinement amounted to ‘inhuman or degrading treatment’ prohibited under Article 3 of the European Convention on Human Rights (ECHR). In rejecting this contention, the High Court dissociated itself from General Comment No. 10 of the Committee on the Rights of the Child (CRC) which rejected the solitary confinement of juveniles and which had been relied upon by the claimant. ⁶² The UK court did ‘not attach any real weight’ to the General Comment No. 10, not only because the UK had not entirely incorporated the Convention on the Rights of the Child or because the court was tasked with the fact sensitive interpretation of the ECHR (ie, another convention). ⁶³ The High Court was critical because the CRC, which ‘may well be trying to bring about what it sees as desirable changes in policy and practice’, ‘is not performing a judicial function’. ⁶⁴ In short, the High Court seems to have regarded the treaty-monitoring body as seeking to progressively develop the treaty to a point which could no longer be legitimately relied on for the purposes of domestic judicial reasoning.

2. Observations addressed to individual States concerning State party reports

National judges not only draw on General Comments and Recommendations but also cite the country-specific reports or observations of treaty bodies to support particular constructions of international and domestic human rights provisions. Noteworthy in this regard is the Argentine Supreme Court's decision called FAL (2012) on the scope of legal abortion. In this landmark decision, the Argentine court not only took into account the Concluding Observations of the HRC and the Report of the CRC addressed to Argentina, but also those addressed to other States. ⁶⁵ In reinterpreting Article 86 of the Criminal Code and extending the scope of abortion to rape victims, the Argentine Supreme Court referred to the fact that the HRC ‘expressed its concern’ over the restrictive interpretation of Article 86 of the Argentine Criminal Code. ⁶⁶

Another noteworthy case is the Canadian Supreme Court decision in Suresh (2002) which drew on the general position of the CAT as well as on its report on Canada in the process of constitutional interpretation. ⁶⁷ The Canadian court concluded that a ‘better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under section 7 of the Charter’. ⁶⁸ In the Cal case (2007), the Belize Supreme Court not only made reference to General Recommendation No. 23 of CERD, but also to the country-specific Correspondence from the Chairperson of CERD to Belize's Permanent Representative to the UN in which the CERD drew attention to land privation in Belize without prior consultation of the Mayan people. ⁶⁹

At the same time, domestic courts have occasionally challenged or deliberately avoided the observations addressed to individual States. For example, Canadian and British courts have disagreed with the CAT's Concluding Observations concerning whether civil remedies should be available for the victims of torture committed abroad. In Bouzari v Iran, the Canadian courts dismissed the civil action brought by the alleged victims of torture against Iran, upholding Iran's jurisdictional immunities before Canadian courts. One of the applicants’ arguments was based on Article 14(1) (right to redress) of the Torture Convention, ⁷⁰ which they argued required the provision of a civil remedy for all acts of torture, including those committed outside the forum State. In rejecting this interpretation, the Ontario Superior Court in 2002 endorsed the observation of the Attorney-General's expert, who pointed out that the failure of Canada to provide a civil remedy to the victims of torture committed abroad had not been criticized by the CAT. ⁷¹

Interestingly, in its subsequent Concluding Observations addressed to Canada in 2005, the Committee did criticize the restricted availability of civil remedies to torture victims. ⁷² The Committee reiterated its concern in its Concluding Observations in 2012 in a more specific manner. ⁷³ In response, however, the CAT's Observations to Canada in 2005 were themselves criticized by UK judges in Jones v Saudi Arabia (2006), ⁷⁴ in which the House of Lords apparently disagreed with the CAT's interpretation and upheld sovereign immunity in civil proceedings instituted by the victims of torture committed abroad. Having noted the CAT's critical remarks regarding Canada's State report, Lord Bingham dismissed the relevance of the CAT's observation, noting that ‘[w]hatever its value in influencing the trend of international thinking, the legal authority of the Committee's recommendation is slight’. ⁷⁵ Lord Hoffmann found ‘no value’ in the Committee's position. ⁷⁶

Courts might have also deliberately avoided taking account of country-specific observations, although it is methodologically difficult to trace whether this is the case and, if so, why. In Canadian Foundation for Children Canadian courts upheld the constitutionality of Section 43 of the Criminal Code, which justified the use by parents of reasonable corrective force against a child. In the course of constitutional interpretation, both the Ontario Superior Court of Justice in 2000 and the Court of Appeal in 2002 referred to the CRC in order to suggest that Canada was not obliged to apply criminal sanctions in the case of corporal punishment of children. ⁷⁷ By contrast, the Reports of the CRC did not appear in the majority's reasoning in the subsequent decision of the Canadian Supreme Court in 2004, ⁷⁸ although in her dissenting opinion Judge Arbour drew attention to the CRC's 2003 Concluding Observations in which it expressed its deep concern that Canada had taken ‘no action to remove section 43 of the Criminal Code’. ⁷⁹ The majority might have simply avoided engaging with the CRC's critical Observations.

Likewise, in the Asociación Solcom case in 2011, ⁸⁰ the Spanish court did not make any reference to the Concluding Observations of the Committee on the Rights of Persons with Disabilities (CRPD), which were issued one month prior to the judgment, and in which the CRPD addressed the specific point disputed before the court; namely, the lack of resources provided to guarantee the right of persons with disabilities to live independently and to be included in the community. ⁸¹ If judges were aware of the presence of the Concluding Observations (and this is not known), this could mean that they deliberately avoided referring to them.

3. Views and suggestions addressed to individual States concerning individual complaints

As with country-specific concluding observations, findings relating to individual complaints have also been both drawn on and rejected by domestic courts. The HRC adopted 1200 Views between 1977 and March 2017, ⁸² and the CAT had adopted 329 merits decisions by May 2017. ⁸³ Some of these Views and decisions have been relied on by national courts. ⁸⁴

For instance, in the FAL case in Argentina, the Supreme Court referred to the fact that the HRC, in its Views, had criticized Argentine for failing to ensure timely access to legal abortion. ⁸⁵ Likewise, the Supreme Court of Norway in Federation of Offshore Workers Trade Unions considered the HRC's Views, in conjunction with the jurisprudence of the European Court of Human Rights (ECtHR) and ILO bodies. ⁸⁶ The German Federal Constitutional Court cited the Views of the HRC when holding that criminal trials in absentia were inconsistent with international law. ⁸⁷ The Nepal Supreme Court in Pant and Others in 2007 referred to observations of the HRC, together with ECtHR jurisprudence, in order to stress that Article 26 of the ICCPR encompasses non-discrimination on the ground of sexual orientation. ⁸⁸

The Views of other committees have also been invoked. In Boudellaa v Bosnia and Herzegovina in 2002, the Human Rights Chamber of Bosnia and Herzegovina interpreted Article 3 (the prohibition of torture) of the ECHR by making reference to the test developed by the CAT in its Views on the principle of non-refoulement under Article 3 of the Torture Convention. ⁸⁹ In A and Others (No. 2) in 2005 concerning the use of torture evidence, Lord Bingham cited the Views of the CAT in the process of ascertaining State practice regarding Article 15 of the Torture Convention. Having cited the CAT's decisions, Lord Bingham observed that ‘[t]he clear implication is that the evidence should have been excluded had the complaint been verified’. ⁹⁰

At the same time, there are examples of Views being rejected, such as when the by the Czech Constitutional Court rejected the Views of the HRC addressed to Czech Republic, in which the HRC had concluded that differentiation between non-citizens and Czech citizens infringed the prohibition of discrimination under Article 26 of the ICCPR. ⁹¹

B. The Use of Findings: Interpretation of Human Rights Treaties and Analogous Domestic Provisions

General Comments, Concluding Observations and Views have not been used on an independent and free-standing basis but in order to assist the construction of formal law. While attempts have been made by litigants to invoke decisions regarding individual complaints as providing an autonomous legal basis for judicial decisions (that is, as the basis on which the wrongfulness of acts or the legality of law is ultimately decided), domestic courts have, not surprisingly, rejected such attempts in the absence of specific statutory or constitutional grounds expressly providing for this. For instance, the Irish Supreme Court in Kavanagh v Governor of Mountjoy Prison (2002) observed that the View of the HRC could not ‘prevail’ against the concluded decision of a properly constituted court. ⁹²

In general, the findings of the monitoring bodies are mentioned in the context of informing understandings of relevant provisions of the human rights treaties. For instance, the CAT's Views were used by Lord Bingham in A and Others (No. 2) when interpreting Article 15 of the Torture Convention. ⁹³ The CERD's General Recommendation was used by the Belize Supreme Court in Cal in 2007 when determining the treaty obligations under the Racial Discrimination Convention. ⁹⁴

These treaty provisions, then, often ultimately inform the interpretation of constitutional or statutory human rights provisions. This apparently holds true for States with dualist traditions. For instance, with respect to the ICCPR, substantively similar, if not identical, provisions can be found in the Canadian Charter of Rights and Freedom, the UK's Human Rights Act (which is based upon the ECHR), and the New Zealand Bill of Rights Act 1990 (which is based on the ICCPR). ⁹⁵ In Suresh, the Canadian Supreme Court invoked the ICCPR when construing Section 7 of the Canadian Charter and in doing so it referred to the HRC's General Comment No. 20. ⁹⁶ In the same vein, in Australia, the ICCPR and the HRC's findings were consulted in order to interpret the Victorian Charter of Human Rights and Responsibilities Act. In Kracke, the Australian court construed the domestic human rights act consistently with the ICCPR, and drew extensively on General Comments when doing so. ⁹⁷

National judges have also employed findings when interpreting provisions of treaties other than those to which they directly relate. In Bangladesh Legal Aid (2010), for instance, the Bangladesh High Court referred to HRC General Comment No. 7 not only in connection with Article 7 of the ICCPR, but also for the purpose of interpreting customary law and the Torture Convention. ⁹⁸ In a similar vein, domestic courts can also find treaty body findings of interpretive relevance for the construction of domestic laws which were not themselves designed to implement the particular human rights treaties or obligations in question.

C. The Weight Accorded to Findings: Confirmatory and Substantive Approaches

The actual weight that the findings of the monitoring bodies carry in judicial interpretation varies. Some are employed in such a way as to substantively affect the judicial interpretation, whilst others are employed in order to confirm a construction already reached on other grounds.

In a majority of cases examined, domestic courts attribute only confirmatory value to treaty bodies’ findings, as in the case of Bangladesh Legal Aid (2010). ⁹⁹ In the case of Jaftha (2004), the South African Constitutional Court drew on the CESCR's General Comment No. 4 to ‘reinforce’ its conclusions concerning the international concept of adequate housing. ¹⁰⁰

On the other hand, treaty body findings have been used to give new meanings to treaty provisions, constitutional provisions and other domestic law and have brought about material differences to the outcomes. To illustrate, in February 2013 the Colombian Constitutional Court relied upon CESCR General Comment No. 15 when instructing the government to guarantee the core of the right to water. ¹⁰¹ The HRC's General Comment No. 18 seems to have had a material impact in Ts'epe in 2005 before Lesotho's Court of Appeal. ¹⁰² Likewise, the HRC's concluding observations appear to have been one of the key factors influencing the Argentine Supreme Court's interpretation of the ICCPR and relevant provision of the criminal code in the FAL case. ¹⁰³

Similarly, in Cal in 2007 the Belize Supreme Court allowed the CERD's General Recommendation and its country-specific Correspondence to inform its understanding of Belize's international obligations and the interpretation of its constitutional human rights provisions. The judge observed that ‘[t]hese considerations, engaging as they do Belize's international obligation … weighed heavily with me in this case in interpreting the fundamental human rights provisions of the Constitution’. ¹⁰⁴

IV. The Normative bases for judicial engagement

The brief survey of domestic courts’ practices then raises the question of what constitutes a basis of and reasons for judicial engagement with UN human rights treaty monitoring bodies. Whilst there may be circumstances in which courts are obligated to consider the Views and interim measures, in most cases judges invoke these findings not out of the obligation but due to their persuasiveness.

A. Obligations under Domestic Law

Domestic executive organs may be obliged to give effect to Views regarding individual communications. For instance, in Colombia Law 288 of 5 July 1996 provides for the enforcement of awards of compensation made by international bodies, including the HRC, under domestic law. ¹⁰⁵ In the Czech Republic the Ministry of Justice is responsible for coordinating the implementation of the Views of the HRC under Act No. 517/2002 Coll. ¹⁰⁶ Such laws oblige or facilitate executive organs to give effect to the decisions of UN human rights monitoring bodies. Nevertheless, such domestic legislation may have little relevance in obliging or enabling judicial organs to give effect to Views, much less General Comments and the Concluding Observations.

Domestic courts may be able to give effect to Views when there are domestic laws enabling the reopening of a case. ¹⁰⁷ For instance, in Norway a case may be reopened when an international court or the HRC has found the country to be in breach of its obligations. ¹⁰⁸ Relatively few countries, however, seem to have specific domestic legislation enabling courts to give effect to Views. The principle of res judicata is often a hurdle preventing domestic courts from making case-specific responses to Views of the monitoring bodies. In Slovakia an amendment to Act on the Constitutional Court was introduced in 2000 in order to oblige the government to initiate domestic proceedings should the HRC find a violation of the ICCPR. ¹⁰⁹ However, this procedure was subsequently repealed on the basis that it might breach the principle of res judicata. ¹¹⁰

B. Obligations under International Law

1. Findings which reflect binding obligations

Under international law States, and indirectly their courts, may, by virtue of their treaty obligations, be obligated to give effect to the substance of those General Comments, Concluding Observations and Views which simply reflect established treaty obligations. Treaty obligations can be developed through ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’, as provided for in Article 31(3)(b) of the Vienna Convention on the Law of Treaties. ¹¹¹ The practice of treaty monitoring bodies themselves does not constitute ‘subsequent practice’ for the purpose of the Vienna Convention. Nevertheless, in practice, if their observations reflect the views of States, or are received positively or supportively by States, or are acquiesced in, they might be regarded as reflecting an interpretation accepted by States parties through subsequent practice, ¹¹² although caution is necessary. The Hong Kong Court of Appeal, in R v Sin Yau-ming (1991), commented that it would give ‘considerable weight’ to the comments and decisions of the HRC as well as the jurisprudence under the ECHR ‘in so far as they reflect the interpretation of articles in the [ICCPR]’ and are directly related to the relevant domestic legislation. ¹¹³

However, not all Comments, Observations and Views can be regarded as reflecting accepted treaty interpretations. The need for some autonomous source of obligation also makes it difficult to explain why domestic courts sometimes refer to the findings of monitoring bodies of a treaty that the forum State has yet to ratify. A case in point is Jaftha v Schoeman (2004), in which the South African Constitutional Court sought guidance on the meaning of the right to adequate housing from Article 11(1) of the ICESCR and CESCR General Comment No. 4 ¹¹⁴ even though South Africa had only signed and not ratified the Covenant.

2. The binding nature of findings themselves

Judicial reference to treaty bodies’ findings cannot be based upon the binding nature of the findings themselves under international law. At the international level, the HRC's Views and interim measures are generally considered by States as non-binding. ¹¹⁵ This holds true also for General Comments and Recommendations and Concluding Observations.

It is true that this traditionally accepted position is increasingly at odds with the HRC's own position which, as has been seen above, is to stress the normative significance of its Views and findings. ¹¹⁶ Of course, the HRC is not alone in suggesting that treaty bodies’ Views and other findings are authoritative and therefore ought to be respected. The Colombian Constitutional Court in 2004 characterized the CESCR as an ‘authorized interpreter’ of the Covenant. ¹¹⁷ In the Test Trial Fund Clara Wichmann case in 2005 the Dutch court noted that the CEDAW's General Recommendations should be considered when interpreting the Convention. ¹¹⁸ In the case of Cal in 2007 before the Belize Supreme Court, the judge noted that, given Belize's commitments under the Racial Discrimination Convention, the government ‘should take this communication [country-specific Correspondence] seriously and respond accordingly’. ¹¹⁹ In Canadian Foundation for Children the Ontario Superior Court of Justice noted that the CRC ‘is an important source for the interpretation of its principles and standards’. ¹²⁰ Nevertheless, the basis for such, possibly case-specific, statements remains unclear.

3. The obligation to consider

Even if the findings of the monitoring bodies are formally non-binding, and have yet to reflect customary law or agreed treaty interpretations, it can still be argued that there is an international obligation of procedural nature to give serious consideration to the Views of human rights treaty bodies concerning individual complaints. The existence of such an ‘obligation to consider’ is nevertheless controversial. ¹²¹ Even if such a procedural obligation exists, it would likely be limited to documents concerning particular individuals’ rights. The restricted applicability of this procedural duty is in part illustrated by the Jamaican case of Lewis in 2000. ¹²² In this case the Judicial Committee of the Privy Council noted that ‘[w]hen the report of the international human rights bodies is available that should be considered and if the Jamaican Privy Council do [sic] not accept it [then] they should explain why’. ¹²³ The observation by the Privy Council that the judges should consider the report is significant, but seems to be largely conditioned on the specific circumstance that individuals’ critical human rights, such as the right to life, were at stake. In Lewis, the appellants, who had been sentenced to death by the Jamaican courts, made an application to the Inter-American Commission on Human Rights and to the HRC. The Privy Council's observation was based upon the individuals’ right to life under the American Convention on Human Rights as well as the constitutional guarantees regarding fair and proper procedures. Caution must therefore be exercised in extending procedural obligations, such as that enunciated in Lewis, to other contexts, such as monitoring bodies’ Views on human rights complaints other than the right to life, or those bodies’ reports on matters other than individual petitions.

C. Authorization

What international law formally at least offers is the authorization to consider the findings of human rights treaty monitoring bodies. States, and indirectly their courts, may take into account the findings of the monitoring bodies as part of ‘supplementary means of interpretation’ under Article 32 of the Vienna Convention of the Law of Treaties. ¹²⁴

In States with monist traditions, in which the Vienna Convention has domestic validity, Article 32 can serve as a formal legal basis that authorizes the use of non-binding instruments, potentially including the treaty bodies’ findings. For instance, the Japanese Osaka District Court, in 2004, observed that the General Comments of the HRC should be respected to a considerable extent when interpreting the ICCPR, as being comparable to subsequent practice under Article 31(3)(b) of the Vienna Convention on the Law of Treaties or supplementary means of interpretation under Article 32. ¹²⁵ Article 32 of the Vienna Convention can be a means for resolving the ostensible conflict between the courts adherence to binding authority on the one hand, and reference to non-binding instruments on the other.

In dualist States, the Vienna Convention may not have formal domestic validity, yet Article 32 of the Vienna Convention may still be referred to in the context of interpreting treaties (which ultimately inform constitutional or statutory interpretation). Also, in Australia the Victorian Charter of Human Rights and Responsibilities Act authorizes interpretive reference to international and foreign instruments, arguably including findings of the monitoring bodies. Section 32(2) of the Victorian Charter of Human Rights, cited in the Kracke case, ¹²⁶ provides that ‘[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision’. ¹²⁷ The explanatory memorandum, again quoted in Kracke, provides in Section 32(2): ¹²⁸

a court or tribunal may examine international conventions, international customs as evidence of a general practice accepted as law, the general principles of law recognised by civilized nations, and (as subsidiary means) judicial decisions and teachings of the most highly qualified publicists of various nations (see article 38 of the Statute of the International Court of Justice). Decisions of the International Court of Justice, European Court of Justice, Inter-American Court of Human Rights and United Nations treaty monitoring bodies including the Human Rights Committee, will be particularly relevant.

According to this explanatory memorandum Section 32(2) of the Victorian Charter of Human Rights permits consideration of HRC decisions as a subsidiary means of statutory interpretation. Overall, while Article 32 of the Vienna Convention and analogous domestic law provisions provide explicit authorization, the perspective of whether international or domestic law in any way obliges States to consider the findings accounts for a very limited fraction of domestic judicial engagement with UN human rights monitoring bodies.

D. Persuasiveness

A supplementary factor is the persuasiveness of the formally non-binding documents adopted by human rights treaty monitoring bodies. In some of the cases examined, domestic courts have explicitly or implicitly employed the notion of ‘persuasiveness’ as a basis for taking account of monitoring bodies’ findings in their judicial reasoning.

1. Notion of persuasiveness

Persuasiveness—or in a more familiar form, the idea of ‘persuasive authority’ ¹²⁹ —has evolved in order to account for inter-judicial communication. ¹³⁰ This idea could assist in the context of judicial engagement with the monitoring bodies’ findings which lack formal domestic level effect. In the Kracke case the Australian court, when interpreting domestic human rights provisions, consulted not only General Comments, but also a range of comparable foreign and non-binding instruments, including case law from the UK, New Zealand, Canada and South Africa, the jurisprudence of the ECtHR and General Assembly resolutions. ¹³¹ Domestic judges are part of a network of vertical and horizontal cross-referencing of court decisions, and judges’ engagement with the findings of UN human rights monitoring bodies can be understood as an extension of such inter-judicial communication.

The idea of persuasiveness is to be contrasted with that of ‘bindingness’—or ‘binding authority’ in the more common usage—which carries independent obligatory force. A binding authority is authoritative just by virtue of its pedigree, while ‘persuasive authority’ stems from its merit. ¹³² Persuasiveness may potentially be given to any norms (whether domestic or international, whether binding or not) that are helpful in shedding light on the meaning and purpose of a particular domestic obligation. ¹³³ The fact that ‘persuasive authority’ is not determined merely by an instrument's pedigree means that judges are generally accorded wide discretion to select those documents which they find persuasive.

In the cases studied, persuasiveness explicitly or implicitly serves as the basis for judicial engagement with monitoring bodies’ findings. The South African High Court observed that ‘General Comments have authoritative status under international law’. ¹³⁴ The New Zealand Court of Appeal observed that a decision of the HRC must be of ‘considerable persuasive authority’. ¹³⁵ The Dutch Administrative High Court regarded the Views of the HRC as authoritative, and noted that national courts could only deviate from the Views if justified by weighty reasons. ¹³⁶ The Belize Supreme Court in Cal accepted that it may regard the findings of the Inter-American Commission on Human Rights ‘where appropriate and cogent, to be persuasive’, ¹³⁷ inasmuch as Belize was a party to the treaties monitored by the Inter-American Commission. ¹³⁸ Other cases which do not explicitly acknowledge persuasiveness still appear to assume it as providing a basis for judicial engagement. The ILA's Committee on International Human Rights Law and Practice observed that despite their lack of binding force, committee decisions under individual complaint procedures may still have ‘considerable persuasive force’ on decision-makers in domestic legal systems. ¹³⁹

2. Factors constituting persuasiveness: Systematic association between findings and formal law and the impartiality of the bodies

What constitutes persuasiveness is by no means clear-cut, something which highlights the weakness of the notion in terms of its conceptual and political underpinnings. Judges are by no means unequivocal about the factors which render the monitoring bodies’ findings more than merely non-binding documents. The ILA's Committee observed that the persuasiveness of the findings emanates from the mandates of each committee to monitor the implementation of the treaty and to receive complaints, the expertise and reputation of experts, and the legitimacy of the committee and its findings. ¹⁴⁰

One of the broad factors that render the findings persuasive is the systematic connection between, on the one hand, the documentation and findings produced by the monitoring bodies and, on the other hand, the treaty provisions (or substantively comparable domestic law) that domestic judges are called upon to interpret. For example, General Comments issued by the HRC are institutionally connected to the ICCPR which itself empowers the Committee to assist States parties’ compliance and thereby effectively to interpret the treaty provisions. Such an institutional connection is one of the factors that support the persuasiveness of its findings.

In turn, formally non-binding documents will be less persuasive if they are employed for the construction of treaties and domestic law which are not directly related to the documents in question. In Mansouri-Rad (2004), New Zealand's Refugee Status Appeals Authority noted that ‘it is only appropriate that regard be had to the interpretation of those [international human rights] instruments by the “treaty bodies” set up under the instruments’. ¹⁴¹ The Refugee Status Appeals Authority observed that ‘[t]he decisions of the Human Rights Committee can be at least of persuasive authority’. ¹⁴² Interestingly, the Appeals Authority contrasted the decisions of the human rights treaty monitoring bodies with those of the UN Human Rights Commission (now replaced by the UN Human Rights Council) established by the UN's Economic and Social Council. According to the Appeals Authority, ‘[i]t is almost unnecessary to add that we do not see the UN Human Rights Commission as an appropriate point of reference, lying as it does outside the treaty framework earlier described’. ¹⁴³ Thus in Mansouri-Rad, the systematic link between a treaty and its monitoring body made it appropriate to refer to the body's findings in judicial reasoning.

Another variable which supports persuasiveness is the impartiality of the bodies that adopt formally non-binding instruments. Such impartiality was one of the reasons that the Privy Council, in the New Zealand case of Tangiora (1999), found the HRC's Views hard to dismiss despite their lack of binding force. ¹⁴⁴ The Privy Council, drawing on the observation of Tomuschat, observed that a State party may find it hard to reject such findings when they are based on orderly proceedings during which the State party has had a proper opportunity to present its case. The Views of the HRC acquire ‘authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint’. Moreover, the Privy Council suggested that the functions of the Committee are adjudicative, as it makes a definitive and final ruling which is determinative of an issue that has been referred to it. ¹⁴⁵

This does not mean that all documents adopted by the HRC possess the ‘judicial qualities’ of impartiality and objectivity. As suggested in the Tangiora case, ¹⁴⁶ the function of the HRC is akin to an adjudicative body when it adopts ‘Views’ in response to individuals’ communications. By contrast, the HRC operates in a less adjudicatory manner when adopting General Comments, which are designed to assist member States more generally. The method or procedure for adopting General Comments and Recommendations varies depending on the human rights treaty bodies. Certainly, there has been progress in harmonizing working methods. The Chairs of the human rights treaty bodies have affirmed in 2011 that they should adopt common working methods. ¹⁴⁷ In response to the UN General Assembly resolution, the Chairs of the treaty bodies endorsed in 2015 the common methodology for consultation in adopting general comments. ¹⁴⁸ Yet to have common policies does not automatically lead to the harmonization of actual practices developed within each treaty body. ¹⁴⁹ More fundamentally, the impartiality of members themselves is not above question. Whilst members of committees in principle serve in their personal capacity, ¹⁵⁰ close ties with their governments may exist. Since their election may often depend on governmental lobbying, it may be difficult for experts to act entirely independently on all occasions, ¹⁵¹ despite the initiatives, such as the Addis Ababa Guidelines, to ensure independence and impartiality of treaty body members. ¹⁵² As suggested by the Tangiora case, such qualities can be relevant in attributing persuasiveness to the findings of treaty bodies and inducing engagement on the part of domestic courts.

V. Reasons for judicial (non-)engagement

While the bindingness and persuasiveness of international findings may provide a normative basis for judges referring to UN treaty body materials, the variation in patterns of judicial engagement is striking. Such variance cannot be attributed to the international legal status of the findings or their general persuasiveness. There are apparently a number of sociological factors which encourage or discourage the use of such materials by national judges.

A. Variance in Judicial Engagement

Broadly speaking, Canada, the UK, New Zealand, and possibly some other common law countries tend to be less hesitant in employing findings on the basis of their being persuasive. ¹⁵³ The Supreme Court of Canada has frequently used the provisions of human rights treaties and related findings as an aid to interpreting the Canadian Charter of Rights and Freedoms even though the Charter, unlike the South African Constitution, does not expressly direct courts to consider international law. ¹⁵⁴ On the other hand, the 2004 Berlin report prepared by the ILA's Committee on International Human Rights Law and Practice records that it was not able to identify judicial references to such findings in the countries of Francophone Africa, the Arab region, and some other regions. There were no identifiable judicial practices in Bulgaria, Jordan, Egypt, Saudi Arabia, Colombia, Ecuador, Chile, Argentina, Malaysia, Singapore and Brunei. ¹⁵⁵

Such reluctance may also be evident in some other countries. The French Conseil d'Etat emphasized in 2001 that the HRC was a non-judicial organ whose findings were not binding. ¹⁵⁶ In Japan, arguments based on non-binding documents have been largely rejected, unless the courts have found those documents to reflect customary international law or established treaty interpretation. ¹⁵⁷ The Tokyo District Court observed in 2001 that HRC General Comments ‘neither represent the authoritative interpretation of the ICCPR nor have legal binding force’. ¹⁵⁸ Nevertheless, there are still several noteworthy cases in Japan, especially in the lower courts, which drawn on findings of the treaty monitoring bodies for interpretive purposes. ¹⁵⁹ For instance, the Takamatsu High Court of Japan has employed the HRC's Views together with the ECHR and a UN General Assembly resolution. ¹⁶⁰ Yet these materials did not appear in the subsequent appeals decision by the Supreme Court, which ultimately rejected the decision of the Takamatsu High Court. ¹⁶¹ It was in its Judgment of 4 September 2013 that the Japanese Supreme Court, for the first time, referred to the recommendations of human rights treaty bodies, when finding unconstitutional the provision of the Japanese Civil Code which differentiated between a child out of wedlock and a legitimate child for the purpose of inheritance law. ¹⁶² The Japanese Supreme Court referred to the ICCPR and the Convention on the Rights of the Child as having expressed concern at Japanese provisions that discriminated against illegitimate children.

The cases examined are limited to explicit engagement with monitoring bodies’ findings. The lack of express engagement with the outputs of the monitoring bodies does not mean that judges have not taken their findings into account. For instance, the French Constitutional Council in Decision No 2005-524/525 DC in 2005 ‘probably took into account’ ¹⁶³ the opinions expressed by the HRC inter alia in General Comment No. 26 when finding that the Second Optional Protocol to the ICCPR excluded denunciation and so the ratification of the Protocol implied a constitutional revision in France. ¹⁶⁴ What is clear is that there is a great deal of variance in practice regarding the explicit invocation of findings of UN human rights treaty bodies in judicial reasoning.

B. Some Factors Influencing the Variance in Practice

1. Domestic effect of treaties

There are apparently a number of factors that influence the extent to which national courts resort to the findings of the treaty bodies. ¹⁶⁵ While it is not intended to provide a comprehensive account of these factors, it is possible to identify certain elements which influence the domestic reception of the findings. First of all, and as a precondition, judicial engagement with UN human rights treaty monitoring bodies generally requires the direct applicability of human rights treaties or the presence of substantively comparable domestic human rights provisions. ¹⁶⁶ Without these mediums, judicial reference to the treaty bodies’ findings would be necessarily restricted.

For instance, when ratified such treaties as the Torture Convention, the ICCPR, and the Racial Discrimination Convention, the US made declarations concerning their non-self-executing character. ¹⁶⁷ This necessarily limits judicial engagement with the findings of the monitoring bodies established by these conventions, although both the treaties and the findings of the monitoring bodies can still inform the interpretation of substantively comparable constitutional provisions. ¹⁶⁸ In States with dualist traditions human rights treaties (which by themselves do not form part of domestic law) may inform the interpretation of constitutions or statutory human rights acts. The interpretive rules commonly employed by domestic courts, such as consistent interpretation and systemic integration, ¹⁶⁹ facilitate the use of international law, and possibly of related non-binding documents, before the national courts.

2. Familiarity with the findings and other international instruments

Second, as the ILA's Committee suggested in its 2004 Berlin report, ¹⁷⁰ public awareness also influences the degree of judicial engagement with the work of the UN human rights monitoring bodies. If the findings of the treaty bodies are available in local languages, and the public has knowledge of their work, then there is strong incentive for litigant parties to draw on them. In court proceedings, not surprisingly, each party will adduce as much material as possible in support of their arguments. Judges would hear their arguments, perhaps comment on their invocation of the findings, and may find them useful. On a related point, the content of judicial education can also affect the levels of familiarity with human rights treaties and the findings of the monitoring bodies. If one does not need to study international law and international human rights law in order to qualify as a national judge, this may make them less inclined to draw on relatively unfamiliar materials such as international treaties, much less the General Comments and Views, in their judicial reasoning.

3. Separation of powers

Finally, variance in use can also be ascribed to the rigorousness of the separation of powers between the judicial and political branches of the government. Judicial engagement with monitoring bodies’ findings which are formally non-binding may represent a degree of judicial encroachment upon the authority of the legislative and executive bodies which are endowed with greater democratic legitimacy. This is because such engagement would channel international norms into the domestic order without their being mediated by the legislative or executive approval processes. Some courts do indeed refuse to give effect to the treaty bodies’ findings on the grounds that it amounts to judicial intrusion into the realm of authority of the political organs of governance. For example, in the Singarasa case in 2006 the Sri Lanka Supreme Court refused to give effect to the findings of the HRC on the ground that the legislature had not taken measures to give effect to the rights under the ICCPR. ¹⁷¹

Likewise, the Court of Appeal of Singapore in Yong Vui Kong in 2010 acknowledged ‘inherent limits’ when resorting to consistent interpretation; reference to international human rights norms would not be appropriate if it was inconsistent with the express wording of the Singapore Constitution or with the country's constitutional history. ¹⁷² The Singapore court cited Lord Bingham's comments in another case ¹⁷³ that ‘[i]t is open to the people of any country to lay down the rules by which they wish their state to be governed and they are not bound to give effect in their Constitution to norms and standards accepted elsewhere, perhaps in very different societies’. ¹⁷⁴ It would have been necessary for Parliament to first enact new laws or amend the Singapore Constitution for effective to be given to international human rights norms. ¹⁷⁵

From these judgments it can be suggested that the more faithful the judicial organs are to the separation of powers and to the legislative authority of political organs, the less amenable are the courts to the use of formally non-binding international instruments, including the monitoring bodies’ Comments, Observations and Views. For instance, in the UK judges historically enjoy a privileged position and make rules through their own jurisprudence, ¹⁷⁶ something which facilitates judicial reference to formally non-binding international documents.

Overall, while the normative and sociological factors considered in this article are by no means exhaustive, it seems clear that levels of judicial engagement are determined not only by the international characteristics of the Comments and Views. There are also a number of domestic and country-specific factors, including the relationships between the judicial and legislative authorities that contribute towards domestic acceptance of the findings of UN human rights treaty monitoring bodies.

VI. Conclusion

The subject-matter overlap between international and national law has increased the relevance of national courts in determining the raison d’être of international law and monitoring bodies at the domestic level. International human rights treaties primarily regulate how governments ought to exercise authority over individuals and entities within their jurisdiction, while domestic constitutional and administrative laws likewise regulate the governments’ exercise of authority. This content-level overlap has empowered national courts in measuring not only the domestic relevance of human rights treaties but also the opinions of the treaty monitoring bodies.

This analysis of court decisions has revealed that national courts have begun to respond to the expectation of the UN human rights monitoring bodies that domestic organs should take account of their findings. Domestic courts employ General Comments and Recommendations, Concluding Observations, and Views, in order to give meaning to relevant human rights treaties which can further inform their interpretation of constitutional or statutory human rights provisions. Judges are usually not obliged to consider these findings; arguably, courts are merely authorized to do so under international law or their doing so falls within the area of discretion which judges are permitted to exercise under domestic law. Whether or not judges do draw upon specific Comments, Observations, and Views depends in part upon the persuasiveness of these documents. The judicial decisions surveyed suggest that there are some identifiable factors, such as the impartiality of the monitoring bodies, which enhances the persuasiveness of their findings. At the same time, these factors do not help distinguish which of the monitoring bodies’ findings are more persuasive than others. Judges’ decision to invoke specific findings in their judicial reasoning is also presumably influenced by other case-specific and value-laden factors.

The uncertainties associated with the notion of persuasiveness mean that domestic judges can take account of those international findings which they find of use without having to explain why they are not taking account of those which they do not find helpful. Thus judicial engagement is both accommodating and confrontational. Domestic courts not only accept findings, but also interpret them in the manner they find most useful, deliberately avoid using them, and reject them either expressly through their reasoning or implicitly as a result of the decisions which they reach. Therefore, one cannot be certain whether most courts are willing to follow the ICJ's observation in Diallo in 2010 that it ‘should ascribe great weight to the interpretation adopted by this independent body [i.e., the HRC] that was established specifically to supervise the application of that treaty’. ¹⁷⁷ The ICJ itself has also kept its distance from the decisions of treaty bodies. In the Obligation to Prosecute or Extradite (Belgium v Senegal) case in 2012, the ICJ took a rather dismissive attitude toward the CAT's decision which had differed itself from the ICJ in terms of the temporal scope of the obligation to prosecute under Article 7(1) of the Torture Convention. ¹⁷⁸

Both the friendly and the confrontational judicial responses, though contrasting, are in fact treading the same path. As human rights treaties and the findings of the monitoring bodies increasingly bear upon domestic decision-making, there are a growing number of instances in which national courts encounter differences between their understandings of human rights law and those advanced by the treaty monitoring bodies. On such occasions, judges may not always favour the interpretation put forward by the international bodies.

The resulting accommodation and contestation by domestic courts has normative effects at the international level. The references by domestic courts to the findings of the monitoring bodies strengthen the normativity of those findings at the international level and may encourage other courts to follow them, despite their lack of formal legal binding force. The acknowledgement that domestic courts have given to such findings may further serve to strengthen the authority of the treaty monitoring bodies. The contrary is also true; judicial avoidance and contestation may undermine the normativity of the treaty bodies’ findings, discourage other courts from having recourse to them, and lessen the overall influence of the UN human rights treaty monitoring bodies themselves.