6 - Giving Due Consideration

Summary

This chapter analyses normative pathways that guide the deliberative space involving UN human rights treaty-monitoring bodies and domestic courts. Judges vary in terms of their degree of engagement with treaty body findings. This chapter highlights that international law itself provides a set of justifications that sustain varied modes of judicial engagement. One such justification pertains to an obligation to consider the specific findings of treaty-monitoring bodies. Before domestic courts, explicit reference to such an obligation is rare. Yet normative variations of the obligation to consider have guided domestic courts’ engagement to treaty body findings. The duty to consider and its variations may not create robust normative paths. Nevertheless, they arguably pave the way for a sustainable and forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.

6.1 Introduction

Human rights law is one of the fields of law that creates the subject matter overlap between international and domestic law. Human rights treaties purport to regulate the governmental authority exercised over individuals, which is, in parallel, regulated by domestic constitutional and administrative law. This overlap creates the deliberative space between human rights treaty-monitoring bodies and national authorities, including domestic courts. In fact, judicial decisions can be at times ‘entangled’ with the findings of UN human rights treaty-monitoring bodies. Domestic courts take note, discuss, accept or resist decisions, comments or observations of UN human rights treaty-monitoring bodies. The quality of such a deliberative space is crucial for the effectiveness of the treaty-monitoring bodies, whose findings ultimately aim at bringing about change to domestic legal frameworks and practices, including those of the judiciary.

Against this background, this chapter engages in the analysis of pathways that guide the deliberative space involving UN human rights treaty-monitoring bodies and domestic courts. Such pathways can be pragmatic or sociological in nature. For instance, the unavailability of treaty body findings in local languages significantly limits public knowledge about them and the likelihood that litigant parties rely on general comments and other treaty body findings. Interactions can be facilitated if judges periodically receive training regarding the work of the monitoring bodies. At the same time, domestic judges’ interactions with treaty body findings have also been guided by normative pathways. They can originate in both international and national law. In limited circumstances, such pathways exhibit a formalistic character that Views, one of the categories of the documents produced by treaty bodies, have legal binding force. Yet it is usually the case that normative pathways are much less dichotomous.

This chapter examines one of such normative pathways, namely that state parties ought to give due consideration to the findings of UN human rights treaty-monitoring bodies. The legal basis of such a duty to consider remains contested. Furthermore, the duty to consider is necessarily precarious, inasmuch as its effectiveness depends on how precisely consideration is given by judges in a particular case. Nevertheless, the duty to consider – and its normative variations, as will be discussed in this chapter – occasionally appears in the reasoning of domestic courts whose narrative is entangled with treaty interpretation by UN human rights-monitoring bodies.

The chapter starts by outlining the different types of the findings of the monitoring bodies (Section 6.2). Domestic courts’ engagement varies depending on states, courts and judges. The limited research I have conducted¹ demonstrates a great deal of variance with regard to domestic courts’ explicit engagement with the monitoring bodies. Domestic judges may not be aware of the relevant documents; and even if they are, they may reject the judicial relevance of such documents (Section 6.3). At the same time, there are a number of domestic court decisions that have explicitly invoked treaty body findings (Section 6.4). What matters for the sake of this chapter is that judicial engagement can be guided by the duty to consider and its variations (Sections 6.4 and 6.5). These pathways serve as ‘interface norms’ that facilitate ties yet preserve discretion on the part of domestic courts.² Under limited circumstances, the duty to consider may even be understood as entailing an obligation to give effect to Views (Section 6.6). The duty to consider may not be a robust normative path. Yet it can still pave the way for a sustainable and forward-looking deliberative space, by creating the opportunities for learning and self-reflection for domestic courts and the international guardians.

6.2 Measuring the Domestic Relevance of the ‘Jurisprudence’ of the Monitoring Bodies

UN human rights treaty-monitoring bodies are part of the institutional arrangements at the international level that assist states’ implementation of nine core human rights treaties. There are ten bodies tasked with monitoring the implementation of the treaties, namely: (1) Human Rights Committee (HRC), (2) Committee on Economic, Social and Cultural Rights (CESCR), (3) Committee on the Elimination of Racial Discrimination (CERD), (4) Committee on the Elimination of Discrimination against Women (CEDAW), (5) Committee Against Torture (CAT), (6) Subcommittee on Prevention of Torture, (7) Committee on the Rights of the Child (CRC), (8) Committee on Migrant Workers (CMW), (9) Committee on the Rights of Persons with Disabilities (CRPD), and (10) Committee on Enforced Disappearances (CED). These committees have been adjusting their working methods towards better harmonization, particularly in response to the UN General Assembly’s resolution 68/268 of 2014.³

The ten bodies issue a wide range of documents (which are generally termed ‘findings’ in this chapter). They can be categorized into three types:⁴ (1) General Comments and Recommendations, which are addressed to all state parties; (2) Concluding Observations and Concluding Comments, which are addressed to a particular state party; and (3) Views (or Decisions) and Suggestions and Recommendations, which pertain to individual communications or petitions.⁵ There are eight treaty bodies that are competent to receive and consider petitions from individuals.⁶ By mobilizing the limited staff resources, the committees adopted 250 decisions on individual communications per year during 2018–19, for instance.⁷ In some of those decisions, the committees found breaches of treaty obligations. Between 1977 and March 2019, the HRC found violations of the International Covenant on Civil and Political Rights (ICCPR) in 1,157 Views.⁸ The adoption of Views is in addition to thirty-six General Comments adopted by the HRC between 1981 and 2018, accompanied by numerous state-specific observations.

The crux is that these different types of findings are cross-referenced with one another, which internally strengthens each body’s treaty interpretation.⁹ Just to provide one specific example, in its Concluding Observations addressed to the Netherlands in 2016, the CEDAW urged the state party to implement its earlier Views, by further indicating that the state’s non-implementation of the Views is inconsistent with the CEDAW’s General Recommendation No. 33 on women’s access to justice.¹⁰ By cross-referencing its own documents, each treaty body creates what the International Court of Justice (ICJ) termed ‘jurisprudence’ in para. 66 of the Diallo case (2010)¹¹ – although, I must add, the use of such a juridical vocabulary depends on how one appreciates the functions of the treaty-monitoring bodies.

Para. 66 of the Diallo case is crucial in that the ICJ commented on the normative relevance of the HRC’s treaty interpretation. The court observed that the HRC has ‘built up a considerable body of interpretive case law’ through Views and General Comments.¹² Having reiterated the formalistic starting point that the court is ‘in no way obliged’ to follow the interpretation of the HRC, the court continued by saying that it ‘should ascribe great weight to the interpretation’ of the HRC.¹³ The Diallo case was not the first occasion on which the ICJ had resorted to the position of the HRC.¹⁴ Yet the remark of the court in Diallo was noteworthy, in that the court elucidated the normative ‘weight’ to be given to the HRC’s interpretation. This does not mean that the ICJ is consistent in terms of its willingness to substantively engage with UN human rights treaty-monitoring bodies. In the Obligation to Prosecute or Extradite (Belgium v. Senegal) case (2012), the ICJ took a rather dismissive attitude towards the CAT’s treaty interpretation.¹⁵

Methodologically, it is hard to assess the extent to which treaty body findings alter domestic legal practices. The international bodies’ interpretation can influence legal discourse indirectly and over a long period of time. That said, one form of assessment is to measure the level of compliance. Some treaty-monitoring bodies indicate the level of satisfactory follow-up by states parties to the outcomes of individual communications. For example, the CAT’s report of May 2017 shows that 42 per cent of its communications (55 out of 131), in which the CAT found violations, resulted in satisfactory or partially satisfactory outcomes.¹⁶

Yet this chapter’s focus is not on assessing general rates of compliance. Instead, the chapter analyses the explicit reference to treaty body findings in judicial reasoning. The cases I examine are therefore inclusive of, but not limited to, the case-specific responses to Views. This wider coverage is appropriate and necessary, precisely because the chapter’s focus is on the judiciary, as opposed to other branches of the government. As I further explain in Section 6.3, domestic courts play a relatively limited role in providing case-specific responses to Views. The principle of res judicata often prevents judges from reopening cases at the domestic level. National courts may be able to give effect to Views if there are any relevant pieces of domestic law that allow judges to reopen a case.¹⁷ Illustrative in this regard is a Norwegian example. By the Act of 15 June 2001 No. 63 which amended the Criminal Procedure and the Civil Procedure Acts, Norway allowed the reopening of cases following the findings of the monitoring body.¹⁸ While the Norwegian initiatives have been welcomed by the HRC,¹⁹ few countries seem to have followed the same path that systematically allows the reopening of proceedings. This means that the case-specific responses to Views primarily depend on the willingness of the executive and legislative branches of the government.²⁰

6.3 Judicial Non-engagement

6.3.1 Domestic Courts’ Practices

As noted in Section 6.2, while the monitoring bodies adopt a number of general and country-specific findings, their practical relevance ultimately relies upon domestic acceptance. While it is methodologically challenging to have an overview of the practices of national courts’ engagement with the monitoring bodies, the analysis of judicial decisions I have conducted²¹ provides some ideas about the patterns of engagement. To begin with, the pronouncement of the monitoring bodies has not been used as an independent and free-standing basis for the final decisions of domestic courts. Namely, Views, and much less General Comments and Concluding Observations, do not serve as the basis on which domestic courts decide the wrongfulness of acts or the legality of law.

In light of this, attempts to construe Views as an autonomous legal basis for judicial decisions have met with rejection.²² Illustrative in this regard is the Irish Supreme Court’s decision in Kavanagh v. Governor of Mountjoy Prison (2002),²³ forming a part of the case-specific response to the HRC’s Views in which Ireland was found in breach of Article 26 of the ICCPR on equality before the law.²⁴ While the Irish Supreme Court’s rejection was based on the constitutional ground that justice ought to be administered by properly constituted courts,²⁵ the court also commented on the absence of international legal grounds. According to the Irish court, ‘[n]either the Covenant nor the Protocol at any point purports to give any binding effect to the views expressed by the Committee’ which, as the Supreme Court reiterated, ‘does not formulate any form of judgment or declare any entitlement to relief’.²⁶

In a similar vein, another noteworthy case is Wilson v. Ermita (2016) before the Supreme Court of the Philippines.²⁷ In 1998, Wilson, a British national, was convicted of the crime of rape and sentenced to death. Before his conviction was set aside by the Supreme Court in 1999,²⁸ Wilson submitted the communication to the HRC, which eventually rendered its Views in 2003.²⁹ According to the HRC, the conditions under which Wilson was arrested, detained and imprisoned infringed several provisions of the ICCPR, including Article 7 on the prohibition of torture, or other cruel, inhuman or degrading treatment or punishment.³⁰ The HRC observed that the Philippines should provide compensation for Wilson.³¹ He then filed a petition for mandamus before the Supreme Court of the Philippines, arguing that the government is obliged to enforce the Views as part of its duties under international law.³² The Supreme Court dismissed Wilson’s claim. While the court’s rejection was based primarily on the lack of domestic effect of treaties,³³ the Supreme Court made remarks on the characteristics of Views. According to the court, nowhere in the ICCPR does it state that Views formed part of the treaty.³⁴

The court’s conclusion in Wilson v. Ermita is nothing new. Noteworthy still, however, is that the Supreme Court of the Philippines invoked the HRC’s General Comment No. 33 in the course of denying the applicability of Views to case-specific judicial responses. In General Comment No. 33 (advanced unedited version of November 2008), the HRC regarded its Views as exhibiting ‘some important characteristics of a judicial decision’.³⁵ The Supreme Court quoted this phrase, observing that the HRC’s Views ‘only displays “important characteristics of a judicial decision”’.³⁶ According to the court, the Views are thus ‘mere recommendations to guide the State it is issued against’.³⁷ While the Supreme Court of the Philippines at least engaged with the narrative of General Comment No. 33, the court’s use of the finding was rather ironic. Judges used it in order to dismiss, as opposed to augment, the judicial relevance of the Views of the HRC.

These examples again remind us of the structurally limited role of the judiciary in providing case-specific follow-up.³⁸ Yet even outside case-specific circumstances, some domestic courts have much more ‘distanced relations’³⁹ with UN treaty-monitoring bodies and have taken a dismissive attitude towards the relevance of their treaty interpretation.⁴⁰ In some countries, judicial narrative accommodates little or no reference to treaty body findings. While the International Law Association’s (ILA) Committee on International Human Rights Law and Practice (1997–2008) conducted extensive studies on judicial practices, the study could not specifically identify judicial references to the monitoring bodies in, among others, the countries of Francophone Africa or the Arab region. According to the 2004 Berlin report of the ILA Committee, there were no identifiable judicial practices in Bulgaria, Jordan, Egypt, Saudi Arabia, Colombia, Ecuador, Chile, Argentina, Malaysia, Singapore or Brunei.⁴¹ The absence of explicit reference is also evident in French courts. A study of French courts’ practices suggests that not only judges, but also the litigants themselves rarely refer to the monitoring bodies’ findings.⁴²

6.3.2 International Legal Justification for Non-engagement

There are, no doubt, country-specific backgrounds that sustain and justify no or very limited judicial engagement with the findings of the monitoring bodies.⁴³ Judges’ strong loyalty to the separation of powers, for instance, may sustain distanced relations with formally non-binding international documents.⁴⁴ What should be remembered, however, is that non-engagement can be explained and justified, not only by domestic specificities, but also by international law. A regularly invoked ground in this regard is the formalistic narrative that treaty body findings lack legal binding force. As a matter of formal status, it is hard to deny that Views themselves are not binding under international law.⁴⁵ States generally consider that the HRC’s Views, as well as interim measures, are non-binding under international law.⁴⁶ The lack of binding force is even more evident with regard to General Comments and Concluding Observations.

The legal status of the findings themselves does not speak of the status of the content of the committees’ findings. States, and indirectly their courts, are obliged to give effect to the substance of the findings of the treaty-monitoring bodies, if it reflects established treaty obligations. The content of General Comments and Views may reflect ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.⁴⁷ While, in principle, ‘subsequent practice’ is not equated with the institutional practices of the monitoring bodies themselves, the monitoring bodies’ findings can facilitate an interpretation accepted by states parties which may support or acquiesce to the observations of the monitoring bodies,⁴⁸ even though caution should be exercised.

Despite the content-based obligation on the part of states parties, the rule of treaty interpretation is so flexible that domestic courts can readily argue that the monitoring bodies’ interpretation does not reflect ‘subsequent practice’. The flexibility is preserved by the International Law Commission (ILC), which adopted, in 2018, a set of draft conclusions on ‘subsequent agreements and subsequent practice in relation to the interpretation of treaties’.⁴⁹ In the draft conclusions, the ILC reiterated that a pronouncement of ‘expert treaty bodies’, such as UN human rights treaty-monitoring bodies,⁵⁰ ‘may’ give rise to, or refer to, a ‘subsequent agreement or subsequent practice by parties’ under Article 31(3) of the Vienna Convention on the Law of Treaties.⁵¹ The draft conclusions, however, warned that ‘[s]ilence by a party shall not be presumed to constitute subsequent practice’ under Article 31(3)(b) of the Vienna Convention.⁵² As the ILC acknowledges, ‘it cannot usually be expected that States parties take a position with respect to every pronouncement by an expert treaty body, be it addressed to another State or to all States generally’.⁵³ While this caution against the misinterpretation of silence by states parties makes pragmatic sense, the ILC’s work did not elaborate upon possible indicators with which to assess whether the pronouncement of UN human rights treaty-monitoring bodies reflects established treaty interpretation. Overall, the ILC’s work preserved the flexibility – and associated uncertainty – inherent in Article 31(3)(b) of the Vienna Convention on the Law of Treaties, which, in the context of the theme of this chapter, effectively leaves ample space for domestic courts to reject the obligatory nature of the specific content of the findings.

6.4 Judicial Engagement

6.4.1 Domestic Courts’ Practices

While the lack of legally binding force may serve as a justification for non-engagement, some other domestic courts have shown greater willingness to refer explicitly to treaty body findings. General Comments, Concluding Observations and Views can be invoked to interpret the terms of relevant human rights treaties, which may ultimately be used to inform the construction of domestic (constitutional) provisions regarding fundamental rights. Admittedly, judges tend to be less hesitant in referring to treaty body findings in such countries as Canada, the UK, New Zealand and possibly some other common law countries.⁵⁴ Yet judicial proximity to treaty body findings is by no means limited to jurisdictions with common law traditions.

There are abundant examples of judicial interpretive engagement.⁵⁵ Among many others, for instance, the Israeli Supreme Court in Kav Laoved v. Interior Ministry (2011), in denying the constitutionality of the country’s work permit procedure designed for female migrant workers, consulted the CEDAW’s General Recommendations 21 (on equality in marriage and family relations) and 26 (on women migrant workers), as well as the CERD’s General Recommendation 30 (on discrimination against non-citizens).⁵⁶ Likewise, the Israeli Supreme Court in Adam v. Knesset (2014) invoked the Views of the HRC in order to interpret the scope of arbitrary arrest and detention under the ICCPR, which served ultimately to decide upon the constitutionality of domestic legislation.⁵⁷

In a similar vein, the Federal Court of Australia in Iliafi v. The Church of Jesus Christ and the Latter-Day Saints Australia (2014) resorted to several findings of the monitoring bodies: General Recommendation No. 20 of the CERD,⁵⁸ the HRC’s General Comments Nos. 22 (on the right to freedom of thought, conscience and religion) and 23 (on the rights of minorities),⁵⁹ and the jurisprudence of the HRC formulated through its Views.⁶⁰ These documents were mentioned by the Australian court in order to interpret the Racial Discrimination Convention and the ICCPR,⁶¹ and, ultimately, to construe the Racial Discrimination Act 1975 of Australia.⁶² Interestingly, the Federal Court of Australia cited para. 66 of the ICJ’s decision in Diallo, as well as Article 38(1)(d) of the ICJ Statute, in consulting the CERD’s General Recommendation No. 20.⁶³ Yet the court did not specify whether it intended to ascribe, as the ICJ did in paragraph 66 of Diallo, ‘great weight’ to the interpretation of the monitoring bodies.⁶⁴

While there are abundant examples of judicial reference, the extent of substantive engagement varies depending on courts and judges. Illustrative in this regard is the comparison between UK and Canadian courts in a series of decisions concerning the interpretation of Article 14(1) of the Torture Convention.⁶⁵ Both UK and Canadian courts disagreed with the CAT’s interpretation of the provision that a civil remedy ought to be made available for all acts of torture, including those committed outside the forum state,⁶⁶ by limiting the scope of state immunity.⁶⁷

While both UK and Canadian courts disagreed with the CAT’s treaty interpretation, there were differences in terms of the extent to which courts substantively engaged with the CAT’s position. In the House of Lords, judges rather summarily dismissed the relevance the CAT in Jones v. Saudi Arabia (2006).⁶⁸ Lord Bingham noted that ‘[w]hatever its value in influencing the trend of international thinking, the legal authority of the Committee’s recommendation is slight’.⁶⁹ In a similar vein, Lord Hoffmann found ‘no value’ in the Committee’s position.⁷⁰ The disagreement of UK judges in Jones was referred to by the Canadian Supreme Court in Kazemi (Estate) v. Iran (2014).⁷¹ The Canadian court, however, while disagreeing with the CAT’s interpretation, took a few more steps to provide substantive explanations as to why judges did not agree with the CAT’s interpretation.

In Kazemi, the Canadian Supreme Court admitted that ‘the Committee’s comments may be helpful for purposes of interpretation’,⁷² by referring to its earlier decision in Suresh (2002) where the Supreme Court had consulted the CAT’s position.⁷³ Yet the majority of the Canadian Supreme Court noted that the Committee’s comments, ‘despite their importance’, ‘should not be given greater weight than the pronouncements of states parties and judicial authorities’.⁷⁴ The court observed that the CAT’s comments ‘do not override adjudicative interpretations’, such as those seen in Jones.⁷⁵ ‘At best’, according to the highest court of Canada, the CAT’s comments ‘form part of a dialogue within the international community where no consensus has yet developed’ on treaty interpretation.⁷⁶ The majority’s treatment of the CAT’s remarks is contrasted with the narrative of Justice Abella in dissent. She observed that the CAT’s ‘expertise lends support to the weight of its interpretation’,⁷⁷ referring to the fact that the Committee had made critical remarks on Canadian legal practices.⁷⁸ The narrative of the Canadian court was noteworthy in that the court explained how much weight it should give to the CAT’s treaty interpretation. While judges in the majority substantively engaged with the CAT’s position, the Supreme Court, at least in this specific case, regarded it as merely one of the opinions that the court may take into account.

6.4.2 Normative Pathway: Authorization to Consider

Domestic courts’ discretionary reference to treaty body findings is no doubt conditioned by domestic sociological and legal contexts. At the same time, it must be once again noted that international law also explains and justifies domestic courts’ discretionary engagement. Namely, states, and indirectly their courts, may consider the findings of UN human rights treaty-monitoring bodies as part of ‘supplementary means of interpretation’ under Article 32 of the Vienna Convention on the Law of Treaties.⁷⁹

In fact, Article 32 of the Vienna Convention on the Law of Treaties has been mentioned by domestic courts in consulting treaty body findings. For example, in Minister for Immigration and Citizenship v. Anochie (2012)⁸⁰ before the Federal Court of Australia, the judge consulted the HRC’s Views and General Comments Nos. 15 (on the position of aliens) and 31 (on the nature of the general obligation)⁸¹ in the process of interpreting Australia’s non-refoulement obligations. The Federal Court explicitly elaborated upon the question of what materials the court may consult in interpreting the ICCPR.⁸² The judge accepted, ‘upon reflection’, that ‘the Committee’s interpretation of the ICCPR is admissible’ in court for the interpretation of the treaty.⁸³ The Federal Court suggested that its recourse to the HRC’s interpretation was justified by Article 40(4) of the ICCPR and Article 1 of the Optional Protocol.⁸⁴ Article 40(4) serves as a legal basis for the HRC to issue General Comments,⁸⁵ while Article 1 of the Optional Protocol empowers the Committee to receive and consider individual communications.⁸⁶ On this basis, according to the Federal Court, the Committee’s Views and General Comments form part of ‘supplementary means of interpretation’ (under Article 32 of the Vienna Convention on the Law of Treaties).⁸⁷ Equally, the Views and General Comments serve as ‘subsidiary means for the determination of rules of law’ (under Article 38(1)(d) of the Statute of the International Court of Justice).⁸⁸

The characterization of treaty body findings as part of supplementary means leaves states (and their courts) to decide whether to consider a particular finding of the committees and how much weight states give to the committees’ interpretation. In the aforementioned Anochie, the Australian court noted that, given that the members of the HRC were supposed to be ‘persons of high moral character and recognized competence in the field of human rights’,⁸⁹ the HRC’s output may form part of the ‘teachings of the most highly qualified publicists’ under Article 38(1)(d) of the ICJ Statute.⁹⁰ On this basis, the Federal Court quoted para. 66 of the ICJ’s judgement in Diallo, in which the ICJ found that it ‘should ascribe great weight’ to the interpretation of the Committee.⁹¹

6.5 Beyond Discretionary Judicial Engagement

6.5.1 Domestic Courts’ Practices

As noted in Section 6.4, states, and indirectly their courts, are authorized under international law to consider the findings of UN human rights treaty-monitoring bodies. At the same time, the survey of domestic court decisions⁹² indicates the existence of normative expectations beyond mere discretionary consideration. Some courts referred to a normative expectation to consider, both in and outside the context of case-specific responses to Views on individual communications.

For instance, in the Jamaican case of Lewis (2000),⁹³ the Judicial Committee of the Privy Council observed that the HRC’s Views should be considered in case-specific contexts. The Lewis case involved appellants who had been sentenced to death by the Jamaican courts and had petitioned the HRC. According to the Privy Council, ‘[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’.⁹⁴ This observation is significant, in that the Privy Council found it necessary, not merely to consider Views, but also to provide explanation in case of disagreement. The Dutch Administrative High Court in its decision of July 2006 seems to have given an even stronger assertion in favour of Views. The Court regarded the Views of the HRC as non-binding, yet still ‘authoritative’, and noted that national courts could only deviate from the Views if justified by ‘compelling reasons’.⁹⁵

These instances of judicial respect for Views do not alter the fact that domestic courts have a limited role in taking case-specific follow-up measures.⁹⁶ In this sense, it is much more relevant to see how domestic courts navigate their pathways to the monitoring bodies outside case-specific contexts. Some judges were willing to indicate the existence of normative expectations – if not a strict obligation – for domestic courts to engage with the monitoring bodies’ interpretation when the courts interpret relevant treaty provisions. For instance, the Colombian Constitutional Court in 2004 characterized the CESCR as an ‘authorized interpreter’ of the Covenant.⁹⁷ In the Test Trial Fund Clara Wichmann case of 2005, the Dutch court noted that the CEDAW is empowered to issue General Recommendations and that such Recommendations should be taken into account in the context of interpreting the Convention.⁹⁸ In 2007, the Belize Supreme Court in the case of Cal noted that, given Belize’s commitments under the Racial Discrimination Convention, the government ‘should take this communication [country-specific Correspondence] seriously and respond accordingly’.⁹⁹

Another noteworthy example is the German Federal Constitutional Court’s engagement with the CRPD’s Concluding Observations and General Comments in the Order of 26 July 2016.¹⁰⁰ The case involved the provision of medical treatment to a woman against her natural will in circumstances where she suffered from mental and physical illnesses and was deemed unable to provide consent. The Federal Constitutional Court obliged the legislature to enact laws to allow coercive medical treatment in such cases. In holding that coercive treatment was compatible with the Convention on the Rights of Persons with Disabilities, the German court effectively disagreed with the CRPD’s General Comment No. 1, Concluding Observations on Germany, and Guidelines on Article 14, in which the CRPD had criticized the practices of custodianship and forced treatment for failing to respect disabled persons’ autonomy and will.¹⁰¹ According to the Constitutional Court, these CRPD documents do not address the critical scenario involving persons who cannot form a free will.¹⁰² While the German Federal Constitutional Court took a critical look at the CRPD’s observations, the court substantively engaged with the Committee’s position. Furthermore, the court notably observed that a national court, although it is not obliged to follow the CRPD,¹⁰³ should deal with the CRPD’s opinions ‘in an argumentative way and in good faith’¹⁰⁴ – as the German court seems to have done in this specific instance.

6.5.2 Normative Pathway: An Obligation to Consider and Its Variations

The aforementioned judicial narratives – such as those in Test Trial Fund Clara Wichmann in the Netherlands, Cal in Belize and the Order of 26 July 2016 in Germany – are nuanced. By no means do they elucidate an obligation to consider or give due consideration to certain types of findings. Yet the courts’ nuanced position ought to be understood in light of some of the limitations extant at the national level for domestic courts vis-à-vis legislative and executive bodies.¹⁰⁵ Normative expectations expressed by judges cannot be separate from a contested obligation to consider, incumbent on states parties themselves. In discussing such an obligation, it is necessary to distinguish different types of treaty body findings.

6.5.2.1 Case-Specific Responses to Views

With regard to the case-specific responses to Views, it is hard to deny the existence, under international law, of such an obligation to consider. In fact, some treaties explicitly provide such an obligation. With regard to the CEDAW, Article 7(4) of the Optional Protocol obliges a state party to ‘give due consideration to the views of the Committee’ and to submit within six months the state’s follow-up action.¹⁰⁶ These dual obligations (to give due consideration and to provide information on follow-up action) are also explicitly laid down in regard to the Views of the CESCR¹⁰⁷ and the CRC.¹⁰⁸

The language is less explicit when it comes to the HRC. Yet the ICCPR’s Optional Protocol, adopted in 1966, at least obliges a state party to submit information in response to the Views.¹⁰⁹ On top of the explicit requirement, there is an obligation to cooperate with a committee, which is applicable to all the monitoring bodies, including the HRC. Such an obligation is based on the general obligation to perform a treaty in good faith, under Article 26 of the Vienna Convention on the Law of Treaties,¹¹⁰ accompanied by states parties’ recognition of the competence of the committees under relevant human rights treaties. While the meaning of ‘good faith’ is no doubt contextual,¹¹¹ the good faith obligation has been understood as an obligation to cooperate with the committees, as the HRC remarked in General Comment No. 33.¹¹² Cooperation does not amount to require compliance; yet a state party may be acting in bad faith towards its treaty commitment if frequent non-compliance is combined with the failure to attempt to seriously engage with Views.¹¹³

It is readily possible to find statements by states parties that they owe an obligation to take into account the Views addressed to them.¹¹⁴ Iceland, for instance, expressed its position in a series of actions following the HRC’s Views in Haraldsson et al. v. Iceland in October 2007 regarding the fisheries management system.¹¹⁵ According to the Icelandic government, Iceland ‘elected to become a party’ to the Optional Protocol to the ICCPR, ‘thereby recognising the competence of the Human Rights Committee to decide whether there has been a violation of the provisions of the Covenant or not’.¹¹⁶ On this basis, Iceland noted that it is ‘therefore required by international law to address the conclusions of the Committee’.¹¹⁷ Not surprisingly, the government still preserved the space for discretion, adding that the Views in question were not detailed enough. According to Iceland, the Views ‘do not include a summarized conclusion in the form of an adjudication, but a general discussion’ without ‘detailed guidance as to the precise measures required’.¹¹⁸ In short, Iceland is acknowledging an obligation to consider and respond to Views, while, at the same time, characterizing them as ‘a general discussion’.¹¹⁹

There are also some influential academic writings that support the existence of the obligation to consider with regard to states parties’ case-specific responses to Views. Tomuschat articulated that ‘States Parties cannot simply ignore’ the Views of the HRC, despite the fact that they lack legally binding force.¹²⁰ States parties ‘have to consider’ the Views ‘in good faith (bona fide)’.¹²¹ Tomuschat observes that states’ lack of reaction ‘would appear to amount to a violation of the obligations under the ICCPR’.¹²² By quoting Tomuschat’s remarks, the Venice Commission reiterated that ‘member states are under the obligation to take the HRC’s final views into consideration in good faith’.¹²³

A main point of contestation remains the extent to which the obligation to consider in good faith requires states parties, and indirectly their courts, to favour the monitoring bodies’ treaty interpretation. According to Tomuschat, states parties have to ‘carefully examine’ the Views addressed to them, and that ‘there exists a presumption in favour of substantive correctness of such views’.¹²⁴ In case of disagreement, a state party ‘must present detailed observations specifying its counter-arguments’.¹²⁵ An observation of a similar nature to the one by Tomuschat was relied upon by the Privy Council, in the New Zealand case of Tangiora in 1999, which found the HRC’s Views hard to dismiss despite the lack of binding force.¹²⁶ According to the Privy Council, the Views of the HRC acquire ‘authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint’.¹²⁷ 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.¹²⁸ Despite these statements, however, the basis of the presumption of substantive correctness remains unclear.

6.5.2.2 Outside Case-Specific Responses

It has been further argued that the obligation to consider is not limited to states’ case-specific follow-up to the Views addressed to them. In the commentary to its draft conclusions adopted in 2018, the ILC acknowledge that ‘State parties may have an obligation, under a duty to cooperate under certain treaties, to take into account and to react to a pronouncement of an expert treaty body’¹²⁹ where the pronouncement is ‘specifically addressed to them or to individual communications regarding their own conduct’.¹³⁰ The ILC’s commentary signals that the dual obligations to consider and react may be applicable, not only to Views, but also to Concluding Observations addressed to a specific state party. The 2016 Final Report of the ILA International Human Rights Law Committee may have even gone beyond the ILC’s suggestion. According to the Final Report, the ‘jurisprudence’ developed by human rights bodies ‘constitutes res interpretata within the treaty system accepted by the state’.¹³¹ On this basis, the ILA’s Final Report observed that domestic courts implement the good faith obligation by ‘giving serious consideration’ to the decisions of human rights bodies.¹³² The ILA’s Final Report indicated that the treaty bodies’ ‘jurisprudence’ – and not necessarily limited to Views in case-specific follow-up – ought to be considered seriously.

It seems plausible to argue that states parties’ obligation to cooperate with the committees, based on the obligation to perform a treaty in good faith,¹³³ is applicable to Concluding Observations as they are addressed to specific states. One cannot be certain, however, whether this obligation is applicable to General Comments. Further contested is whether the presumption of substantive correctness applies to findings outside case-specific follow-up to Views. In para. 66 of Diallo, the ICJ was prepared to accord ‘great weight’ to the HRC’s ‘interpretation’ or ‘jurisprudence’ in general.¹³⁴ Interestingly, the ICJ’s justification for doing so was not only because the Committee is the ‘independent body that was established specifically to supervise the application of that treaty [i.e. the ICCPR]’.¹³⁵ The ICJ ascribed great weight to the HRC’s interpretation, also because of the wider interests at stake in achieving ‘the necessary clarity and the essential consistency of international law, as well as legal security’ necessary for the rights holders and duty bearers.¹³⁶ The reasoning of the ICJ shows that the degree of normative weight to be given to treaty body findings relies not only on one’s understanding of the characteristics of the monitoring bodies, but also the wider role that one wishes to ascribe to the bodies within the international legal order.

6.6 Engagement and Acceptance

6.6.1 Domestic Courts’ Practices

In contrast with the nuanced engagement of domestic courts with UN human rights treaty-monitoring bodies, the Spanish Supreme Court in its judgement of July 2018 (Judgment No. 1263/2018) has taken a different and dichotomous path.¹³⁷ In this exceptional yet significant case, the Spanish highest court established the binding character of the Views of the CEDAW at the domestic level. The Supreme Court’s decision came after many years of legal battles by the appellant, González Carreño.¹³⁸ Having been subject to physical and psychological violence by her partner, González Carreño filed a number of complaints in order to bring the abuses to the attention of the Spanish authorities.¹³⁹ While local courts took some measures to protect the appellant, they did not fully take into account the risks that her partner could pose, not only to the appellant, but also to her daughter, Andrea.¹⁴⁰ In May 2002, a Spanish local court allowed the partner, with respect to whom the appellant had obtained an order of marital separation, to visit their daughter Andrea without supervision.¹⁴¹ In April 2003, during the scheduled visit, the daughter was shot by her father who eventually killed himself.

After the tragic incident, González Carreño went through a series of domestic court proceedings, trying to prove the pecuniary liability of the state which failed to protect her and her late daughter. From April 2004 to October 2010, her liability claims met rejection four times before Spanish courts.¹⁴² Her constitutional claim was likewise rejected by the Constitutional Court in April 2011.¹⁴³ Having exhausted domestic remedies, on 19 September 2012, González Carreño brought her petition to the CEDAW. The Committee rendered its Views on 16 July 2014, finding the Spanish government in violation of her Conventional rights.¹⁴⁴ Having found a violation of the state’s obligations under the Convention,¹⁴⁵ the Committee recommended Spain to provide compensation and conduct an exhaustive and impartial investigation.¹⁴⁶ At the domestic level, however, the CEDAW’s recommendations in July 2014 did not result in any changes to the situation of the appellant. A year later, in July 2015, the CEDAW still expressed its concern about the ‘lack of follow-up to the Committee’s views’ on the part of the state party regarding González Carreño.¹⁴⁷ Meanwhile, she launched a series of new administrative and judicial proceedings, ultimately before the Supreme Court, requesting the government to give effect to the CEDAW’s Views.¹⁴⁸

In its judgement of 17 July 2018, the Spanish Supreme Court regarded the Views of the CEDAW as binding at the domestic level, ordering the government to pay €600,000 for moral damages suffered by the appellant.¹⁴⁹ The Supreme Court reached such a conclusion on the basis of both international and domestic laws. With regard to the international legal basis, the Spanish court held that the Views of the CEDAW have a ‘binding/obligatory’ character.¹⁵⁰ The court ascribed such a character to Views, despite its acknowledgement that the CEDAW Convention does not oblige states parties to adopt any specific procedures in order to give effect to Views.¹⁵¹ The court derived the ‘binding/obligatory’ character on the basis of Article 24 of the CEDAW Convention and Articles 7(4) and 1 of the Optional Protocol.¹⁵²

The Supreme Court’s reasoning was further supported by domestic law. The court reiterated that the CEDAW Convention, on which the Committee and its Views are based, forms part of the domestic legal order under Article 96 of the Spanish Constitution.¹⁵³ Pursuant to Article 10(2) of the Constitution, fundamental rights shall be interpreted in accordance with human rights treaties ratified by Spain.¹⁵⁴ An important aspect of the court’s reasoning was the manner in which the court invoked Article 9(3) of the Spanish Constitution. The provision guarantees ‘the principle of legality and the normative hierarchy’, according to which international obligations relating to the execution of the decisions of the CEDAW form part of the Spanish internal order and enjoy a hierarchical position above ordinary domestic law.¹⁵⁵ On this basis, the Supreme Court observed that the Convention and the Views ‘can and should be a decisive element’ in proving the possible infringement of the fundamental rights of the appellant.¹⁵⁶ While the Supreme Court emphasized the particularities of the appellant’s case, the court took the position that the CEDAW’s Views must be considered as a ‘valid basis’ for bringing a claim concerning the pecuniary liability of the state.¹⁵⁷ Otherwise, as articulated by the Supreme Court, the ‘absence of a specific procedure for executing’ the Views of the Committee constitutes ‘in itself a breach of a legal and constitutional mandate by Spain’.¹⁵⁸

The Spanish Supreme Court’s reasoning pertains only to the CEDAW’s Views on individual communications, and not to other types of findings. Yet it would be good to reiterate once again that each monitoring body engages with its own previous findings. In the CEDAW’s Views in Angela González Carreño v. Spain, the Committee’s reasoning built on its General Recommendation No. 19 (1992),¹⁵⁹ in which the CEDAW had made it clear that states ought to act with due diligence to prevent violations involving the acts of private persons.¹⁶⁰ In Angela González Carreño v. Spain, the Committee found the violations of the Convention, ‘read jointly with … general recommendation No. 19 of the Committee’.¹⁶¹ In other words, by according legal binding effect to Views, the Spanish Supreme Court in the judgement of July 2018 augmented the normative relevance of other CEDAW findings at the domestic level.

6.6.2 Normative Pathway: An Obligation to Comply

The Spanish Supreme Court’s identification of the binding character of the Views of the CEDAW resembles the draft version of the HRC’s General Comment No. 33 concerning the general obligations of states parties. In an early draft of what became the HRC’s General Comment No. 33, the HRC characterized its role as an ‘authentic interpreter’ of the Covenant¹⁶² and regarded its Views as exhibiting ‘most of the characteristics of a judicial decision’.¹⁶³ Also, in the draft version, the HRC translated the obligation to cooperate with the Committee as entailing ‘an obligation to respect the views of the Committee in the given case’.¹⁶⁴ The HRC is not the only body that attempted to put forward an imperative tone. Within the CAT, one of its members observed that, ‘[w]hile the Committee’s decisions were not strictly mandatory, States parties had an obligation to comply with them in good faith’, which also justifies the CAT’s follow-up mechanism.¹⁶⁵

The imperative vocabularies used in the draft version of General Comment No. 33 met with criticisms from several states parties.¹⁶⁶ In the end, the wording of the final version of General Comment No. 33 was revised, including the critical phrase ‘authentic interpreter’.¹⁶⁷ The draft version of General Comment No. 33 was an attempt to creatively translate a procedural duty to cooperate with the Committee, based on the good faith obligation, into the substantive obligation to respect the Views of the HRC.¹⁶⁸ Such an attempt was not successful in 2008, at least in the context of the HRC.

In the judgement of July 2018, the Spanish Supreme Court by no means characterized the CEDAW as an authentic interpreter. In fact, the Spanish Constitutional Court reiterated in 2002 that the HRC was not a judicial organ and that the Views of the HRC could not represent the ‘authentic interpretation’ of the ICCPR.¹⁶⁹ The crux, however, is that the Spanish Supreme Court’s reasoning in 2018 was in part based on the state party’s obligation to take Views seriously. The Spanish court referred to not only Article 24 of the Convention, according to which states parties ‘undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention’.¹⁷⁰ The Court also relied on Article 7(4) of the Optional Protocol, according to which the state party has dual obligations. Namely, the party ‘shall give due consideration to the views of the Committee, together with its recommendations’ and ‘shall submit to the Committee, within six months, a written response’.¹⁷¹ As noted in Section 6.5.2.1, these dual obligations are enunciated for the CESCR and the CRC as well.¹⁷² Overall, the reasoning of the Spanish highest court demonstrates the breadth of what can be offered through the obligation to consider. After the lengthy administrative and judicial proceedings involving the victim of the state’s neglect, the obligation to consider has reached the point where no further deliberation may be welcome.

6.7 Conclusion

The shortcomings of human rights protection at the domestic level have sustained the need for institutional mechanisms at the international level that monitor and assist states’ implementation of human rights treaties. The ten human rights treaty-monitoring bodies, within their significantly limited resources, actively adopt general and specific findings. Each treaty-monitoring body generates and reiterates its own interpretation of relevant treaty obligations by cross-referencing previous findings. Despite the accumulation of instruments adopted, the effectiveness of treaty body findings ultimately relies on the degree to which their treaty interpretation becomes entangled with the practice of states parties, including their judiciary.

As illustrated by some examples discussed in this chapter, the treaty interpretation built by UN human rights treaty-monitoring bodies has been intertwined with the discourse of domestic court decisions. Various courts have shown their willingness to take into account General Comments, Concluding Observations and Views in the course of interpreting applicable human rights treaties and relevant domestic legal provisions. Judges’ proximity to the international monitoring bodies varies, depending on sociological contexts in which judges have been situated. If UN treaty-monitoring bodies are not integrated in judges’ legal training, it may be unrealistic to expect them to see the relevance of treaty body findings.

At the same time, a connecting point between UN treaty-monitoring bodies and domestic courts can also be normative, at least in part. One such normative pathway which generates ‘discursive entanglement’¹⁷³ is the obligation to consider. As illustrated in the present chapter, there are a number of variations surrounding such an obligation, from mere encouragement to take into account to an obligation to implement. While normative expectations may be limited to certain types of treaty body findings, the monitoring bodies regularly refer back to General Comments in drafting Concluding Observations or Views, reminding a state party of the monitoring bodies’ earlier remarks on which specific observations are built. In other words, the consideration of Views would substantively involve a state party’s reflection of General Comments or Concluding Observations.

Pathways built around the obligation to consider are not single routes. There are multiple normative variations: ranging from a cursory look, to substantive and reasoned engagement, to legally obliged acceptance. Due to the fact that there are multiple possibilities, judges’ willingness to substantively engage with the treaty body’s interpretation can be altered, for instance, by the initiatives to better ensure independence and impartiality of UN treaty-monitoring bodies.¹⁷⁴ Substantive engagement on the part of domestic courts creates further opportunities for the treaty bodies to tailor their approaches to states parties. Deliberative space involving domestic courts and the monitoring bodies may be multifaceted and changeable, in that it allows various degrees of entanglement on the part of domestic courts. Yet it is precisely because of its precariousness that there arises the need for constant attempts to augment the quality of engagement, both on the part of domestic courts and UN treaty-monitoring bodies.