Part V - Human Rights

13 Institutional Overlap and Comparative Effectiveness Compliance with Torture-Related Decisions of the European Court of Human Rights, the Human Rights Committee and the Committee against Torture in Europe

Andreas von Staden

13.1 Introduction

The international human rights regime consists of a multifaceted web of regional and global treaties, institutions, and compliance monitoring mechanisms.¹ While some elements complement each other, others create overlap and redundancy in terms of protected rights and of the institutions and mechanisms created to monitor compliance with them. Many core civil and political rights are covered by general conventions at both the regional and the global levels and are fleshed out further by additional group- or subject-specific treaties. In addition to monitoring mechanisms such as State reporting and inquiry procedures, the three regional human rights regimes in Europe, the Americas, and Africa as well as the nine core UN human rights treaties all provide for individual complaints/communications procedures (ICPs) that enable aggrieved individuals to have the merits of alleged human rights violations decided by independent institutions. One dimension along which these institutions differ is their institutional design. The three main regional human rights conventions feature full-fledged courts (in addition to human rights commissions in the African and inter-American human rights systems) that are staffed with professional judges and whose judgments are legally binding, whereas the committees established by the UN human rights treaties, while taking some design cues from judicial institutions, are composed of part-time experts and issue legally non-binding pronouncements that are called “views,” “opinions,” or “decisions.”

A frequent assumption in the human rights domain (also elsewhere) is that courts and legally binding judgments will yield better rights protection by way of better compliance than non- or quasi-judicial institutions whose output lacks such legal status. Pierre-Henri Teitgen, one of the chief designers of the European Convention on Human Rights (ECHR), put the sentiment thus when arguing against the inclusion in the ECHR’s monitoring machinery of solely a commission with only recommendatory powers: “If … we really wish to have collective protection in Europe of rights and fundamental freedoms, it is necessary to go beyond a simple Recommendation or the mere publication of a Report. We must refer the matter to the only force which, in these countries, has a final authority, that is justice; there must be a Court and Judges.”² Conversely, in the context of the UN human rights treaty bodies, the lack of legally binding status of their pronouncements has been repeatedly adduced as one reason for the compliance problems encountered.³ The suggestion is that legally binding court judgments generally have greater purchase with respect to inducing compliance than committee decisions that come without such legal status.

In this chapter I argue that the significance of legally binding or non-binding status for compliance is conditional on a number of contextual political and institutional factors, among them regime type, expected costs of compliance and non-compliance, and whether violations are isolated or occur as a result of State policy.⁴ To explore my expectations empirically, I take advantage of the existence of significant jurisdictional overlap regarding individual complaints between the European Court of Human Rights (ECtHR), the UN Human Rights Committee (HRC), and the UN Committee against Torture (CAT) with respect to many European States. Because State responses to adverse decisions⁵ can be expected to be affected inter alia by the specific issues and rights involved, I focus on compliance with adverse findings concerning one particular right: the core physical integrity right of freedom from torture and from inhuman or degrading treatment or punishment.⁶ The analysis provides indicative evidence that compliance with so-called conditional violations – violations that have not yet occurred, but might with some probability if a State were to implement its planned course of action – concerning the non-refoulement norm is as high for treaty body decisions as it is for ECtHR judgments. When it comes to remedying actual past or ongoing violations, however, the ECtHR performs better overall, but with significant differences between countries with different democratic credentials. The implication is that the ostensibly institutionally weaker treaty body arrangements perform well when the political and material stakes for the respondent State are comparatively low, but when those stakes increase, a stronger institutional design performs better (if still far from perfectly). If respondent States are insufficiently or only weakly democratic, however, compliance is equally low for both types of institutions. While application numbers reveal a preference among petitioners for a judicial assessment of their grievances, the work of the treaty bodies can be consequential under certain circumstances, especially with respect to preventing violations.

13.2 Right to Freedom from Torture: Institutional Overlap

Few human rights are as widely affirmed in international instruments as the right to be free from torture and from other unduly harsh forms of treatment or punishment. The Universal Declaration of Human Rights (1948) set the precedent when it affirmed that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). The three regional human rights conventions in Europe,⁷ the Americas,⁸ and Africa⁹ followed suit, as did the Arab League,¹⁰ the Organisation of Islamic Cooperation,¹¹ ASEAN,¹² and the European Union,¹³ with some regions adding further subject-specific treaties.¹⁴ At the UN level, five of the nine core human rights treaties include provisions outlawing torture: the UN Convention against Torture (UNCAT),¹⁵ the International Covenant on Civil and Political Rights (ICCPR),¹⁶ and the conventions on the rights of children,¹⁷ of persons with disabilities,¹⁸ and of migrant workers and their families.¹⁹ The prohibition of torture is recognized as customary international law and widely considered to be ius cogens.²⁰ The Statute of the International Criminal Court includes torture as a crime against humanity and a war crime.²¹

As of January 1, 2022, all forty-seven countries then subject to the ECHR/ECtHR²² had ratified ICCPR, UNCAT, and the Convention on the Rights of the Child, all but one had ratified the Convention on the Rights of Persons with Disabilities, while only four were party to the Migrant Workers Convention. The first four treaties have active ICPs that could in some instances be used to address the same alleged violations of the prohibition of torture and of related offences.²⁴ Twenty-one ECHR parties have accepted all four active ICPs while two countries have accepted only one. All but three have accepted the ICCPR’s ICP and thirty-nine have accepted UNCAT’s.²⁵

Figure 13.1 depicts ICP acceptance under the four relevant conventions. While it shows the present state of overlap, it should be noted that there have been (sometimes extended) periods of time during which countries have been subject to only a single individual complaints mechanism. One reason has to do with temporal availability: the ECtHR was set up in 1959, but the HRC’s and CAT’s ICP competences became operational only in 1976 and 1987, respectively, and those of the other two committees later still, in 2008 (Rights of Persons with Disabilities) and 2014 (Rights of the Child). Eastern and Central European countries only began to accept ICPs near the end of the Cold War and until that time were not subject to any of them. Even when available, States differ significantly in terms of the time between accepting the first and second of these ICPs (which are optional in the case of the treaty bodies and were so under the ECHR until 1998), ranging from less than six months for Azerbaijan, Poland, and Bulgaria to over thirty-eight years for Belgium and Germany.

Figure 13.1 Acceptance of ICPs of relevant UN human rights treaties by ECHR parties²³

Only the HRC and CAT have produced quantitatively meaningful output against ECtHR parties so far.²⁶ Figure 13.2 shows which States have received adverse decisions related to the prohibition of torture and from which body. Twenty States have received torture-related judgments only from the ECtHR, while two, Norway and Denmark, were until the end of 2019 – the cut-off date of the dataset used for this research – subject to adverse decisions only from the HRC and CAT. Eight countries have been subject to adverse decisions involving the prohibition of torture from all three bodies while six small States (Andorra, Liechtenstein, Monaco, Iceland, Luxembourg, and San Marino) have so far never been found responsible for having violated Article 3 ECHR, Article 7 ICCPR, or any UNCAT provision. In terms of the scope of the relevant treaty provisions, it is to be noted that the first two articles are single-paragraph provisions whereas UNCAT spells out rights and obligations at greater length over several articles. While the provisions and the jurisprudence based on them are not identical, there is considerable substantive overlap in terms of rights and obligations covered as a result of treaty interpretation and reading ECHR/ICCPR provisions in conjunction with other articles.²⁷

Figure 13.2 Adverse torture-related decisions by respondent State and issuing institution

Why applicants turn to the treaty bodies when they also have access to the ECtHR is worth investigating; some reasons that have been suggested in the literature have to do with the narrowing of access to the ECtHR, the (expected) shorter time to a decision, applicant-friendlier rules of evidence and different interpretive takes on certain aspects related to the prohibition of torture.²⁸ The question to be explored further in the following, however, is how States respond to the signals received from these two types of institutions in terms of complying, or not complying, with them and what causal factors likely play a role.

13.3 Theoretical Expectations

This section addresses from a theoretical point of view the causal factors that likely affect whether States will comply with ECtHR judgments and treaty body decisions and how such factors may play out differently with respect to the two types of decisions. I discuss the following factors: regime type and rule of law, costs of compliance and non-compliance, and systematic as opposed to isolated infringements.

13.3.1 Regime Type and Rule of Law

It is a fairly consistent finding of research on international human rights law that compliance is strongest among liberal democracies,²⁹ that is, States that share the values embodied in human rights and recognize them as legitimate constraints on governmental action. Liberal democracies also typically adhere to the rule of law and as such are well practised in responding to, and abiding by, the decisions of properly established monitoring and dispute settlement institutions. While all members of the Council of Europe, the ECtHR’s parent institution, are nominally rule-of-law countries (a condition of membership)³⁰ and committed to “genuine democracy,”³¹ there is variance in the strength of their rule-of-law and democratic credentials that can be expected to affect the extent of their compliance with adverse judgments and decisions. We should generally expect countries with higher scores on democracy indicators to have better compliance rates than those whose scores are lower.

To the extent that sincere commitment to human rights is the driving force behind the effects of (liberal) democracy on compliance with adverse human rights decisions, there should be no systematic difference in terms of its compliance-enhancing role with respect to ECtHR judgments and treaty body views, respectively. That commitment itself is ultimately socio-political (and not legal) in nature and there is nothing in the recognition that State action should be constrained by, and assessed in terms of conformance with, human rights norms and should give rise to remedial action in case of violations that would make it conditional on the legal status of a pronouncement. States frequently take action in the human rights and other domains in response to demands and recommendations that are legally non-binding (but may have non-legally binding quality).³² There is no reason to expect that sufficiently well-reasoned decisions from the treaty bodies should be received and treated differently than ECtHR judgments solely because of their different institutional sources and legal status.

Commitment to the rule of law, on the other hand, can cut both ways when it comes to compliance with legally non-binding decisions. On the one hand, the rule of law has been linked, since A. V. Dicey gave currency to the phrase, to the possibility of resolving disputes and to obtaining redress through recourse to the courts in cases involving both civil and public law.³³ While the theoretical bond between the rule of law and “access to justice” may be weaker than often asserted, it appears that “the assumption that this connection is so obvious as to need no explication” is widespread.³⁴ Having a mechanism for the resolution of disputes in place in turn generates legitimate expectations of compliance on the part of its users.³⁵ On the other hand, the rule of law privileges the law as a specific institution over other, non-legal norms, standards, and commitments, hence the name. To allow legally non-binding decisions to trump legally binding legislation, judicial decisions or executive determinations would jar with this understanding of law as having higher normative status than non-law.

How decisions with different legal status are treated domestically differs between countries. In some States, the judicial branch in particular has emphasized that treaty body views have a subordinate and suggestive, rather than determinative role to play.³⁶ The Supreme Court of Ireland, for example, addressing the consequences of HRC views, stated that “[t]he notion that ‘views’ of a Committee, even of admittedly distinguished experts on international human rights, though not necessarily lawyers, could prevail against the concluded decision of a properly constituted court is patently unacceptable.”³⁷ Other high courts have argued similarly, noting that treaty body views are not “judicial decisions” and therefore “cannot constitute the authentic interpretation of the Covenant,”³⁸ and do not legally bind the respondent State and its courts.³⁹ As a consequence, while, “domestic courts should address the view of such treaty bodies[,] they do not … have to endorse it.”⁴⁰

The difference in comparison to the treatment of ECtHR judgments is, however, not categorical as these judgments are typically not accorded binding effect domestically either, at least not formally, although it appears that courts tend to give greater weight to findings and arguments by the ECtHR in comparison with pronouncements by the treaty bodies.⁴¹ The German Constitutional Court, for example, has stipulated that the effect of ECtHR judgments within the domestic legal order is not unconditional. While State authorities are under an obligation to “take into account” Strasbourg’s jurisprudence in their decision-making, not only the failure to do so, but also “the ‘enforcement’ of such a decision in a schematic way, in violation of prior-ranking law, may … violate fundamental rights in conjunction with the principle of the rule of law.”⁴² At the same time, while relevant treaty body views “should” be addressed, for ECtHR judgments there is a “duty” to take them into account; they “must” be considered.⁴³

Elsewhere, the difference in legal status between judgments and views is diminishing or has not been a major issue to begin with. The Spanish Supreme Court’s 2018 judgment declaring the views of the Committee on the Elimination of Discrimination against Women (CEDAW) to be binding on Spain is a 180-degree turn from the 2002 Spanish Constitutional Court’s decision previously referenced⁴⁴ and aligns the legal status of court judgments and treaty body views.⁴⁵ In Norway, the Supreme Court in 2008 noted that “the UN Human Rights Committee’s interpretation of the International Covenant must be accorded considerable weight as a source of law”⁴⁶ and in a recent decision concerning rights of Sami reindeer herders, the court relied heavily on the “case law” and other statements of the HRC on the scope of ethnic groups’ right to enjoy their own culture as protected by Article 27 ICCPR without making an issue of their legal status.⁴⁷

National positions on the consequences of the different legal status of ECtHR judgments and treaty body views in domestic proceedings are thus not uniform. While domestic courts, qua institutional identity, may be particularly concerned about issues of legal status, the same does not necessarily hold true for other governmental actors that are involved in giving effect to adverse human rights decisions. An expectation that in cases of conflict between legally binding and legally non-binding decisions, relevant actors in rule-of-law countries will, ceteris paribus, accord precedence to the former more often than the other way around, may appear plausible. At the same time, the different institutional actors and issue areas involved, distinct principled approaches to the implications of differences in legal status as well as areas of discretion and choice in political and legal decision-making make this a probabilistic prediction, and not one where we should expect near-consistent behaviour, one way or the other, simply as a function of legal status.

13.3.2 (Expected) Costs of Compliance and Non-Compliance

In addition to normative factors the decision whether, and how, to comply with an adverse decision is also typically affected by the expected material, political, and/or sovereignty costs of compliance and of non-compliance. When the costs of the measures necessary to bring a State into compliance with the requirements of an adverse decision are low, States will be more likely to implement them voluntarily than when they are high, especially when the likely political costs of non-compliance are minor. In an effort to minimize costs, States in some cases also adopt some, but not all of the remedial measures required, resulting in “partial compliance.”⁴⁸ Existing research supports the expectation that States remain rational actors that will seek to maximize the relationship between benefits and costs of their chosen course of action and often deal with different types of remedies differently. In the context of the Inter-American and European human rights systems, States have been found to comply to greater extent with financial reparation obligations than those that require general measures such as legislative action⁴⁹ and generally appear intent on minimizing the domestic impact of adverse findings.⁵⁰ Similarly, in the case of the Court of Justice of the European Union, a routine response by States is to “contain compliance” by remedying only the violation in the decided case but refraining from drawing more general implications from it.⁵¹

General measures to remove systemic sources of repeat violations – such as changes in legislation, reform of administrative practices, systematic training of security personnel, or practical measures such as improving prison infrastructure – are typically the costliest, in material terms and/or with respect to their sovereignty costs, whereas the costs of individual measures, limited to the individual applicant, are in most cases lower. Where financial compensation is the only individual measure to be adopted, it is commonly the least costly remedial measure (except in instances of highly politicized cases or where compensation is exceptionally high). Most amounts are relatively small and do not constitute a significant financial burden, at least not for developed countries, and no additional sovereignty costs are implicated through necessary changes of substantive decisions or policies. Conditional non-refoulement violations have been implied to be particularly easy to remedy,⁵² presumably because States primarily simply have to refrain from doing what they had planned to do. Of course, compliance with such cases is not entirely without costs – residence permits need to be issued and subsistence payments made, plus there are sovereignty costs as a result of an international expert body enjoining a State from implementing its national authorities’ decisions in a domain usually viewed as a core part of State sovereignty – but none of these are beyond those that are incurred in the ordinary course of managing a State’s immigration and asylum system. Compliance with decisions finding conditional violations involving the threat of torture⁵³ also avoids the reputational cost of being identified as a violator of a core physical integrity right and instead may generate for the complying State positive reputational capital as a State disposed to prevent grave human rights violations when able to do so.

The impact of the magnitude of the expected costs of adopting effective remedial measures when deciding whether and how to comply with adverse decisions involving the right to freedom from torture should in principle apply to ECtHR judgments and treaty body views alike. These costs arise out of the type of violation and the types of measures necessary to remedy it and their magnitude should not as such differ according to whether they follow from a judgment or a view.

The expected costs of non-compliance, however, can be expected to differ, for two reasons. First, in the case of a treaty body, the monitoring of compliance with its views is undertaken by the same treaty body that issued the decision. During the follow-up procedure the treaty bodies have no additional enforcement capabilities at their disposal other than the pre-existing power of publicizing non-conforming conduct by the respondent State in their annual and follow-up reports. In the case of the ECtHR, by contrast, supervision of the execution of the court’s judgments is done by the Committee of Ministers, a political body composed of State representatives. The Committee also has no material enforcement powers other than the power of publicizing and criticizing non-compliance and the “nuclear” option of ending a country’s membership in the Council of Europe and hence the Convention (which happened in the case of Russia, if for different reasons,⁵⁴ and in general tends to be rather counterproductive from the vantage point of monitoring and protecting human rights). Naming and shaming by one’s peers is, however, likely more consequential than when done by the treaty bodies. Interview evidence from a study on the relative efficacy of the UN Human Rights Council’s Universal Periodic Review (UPR) compared with the treaty bodies’ State reporting procedure suggests that States are more sensitive to criticism from other governments than from experts without governmental authority and powers.⁵⁵ The involvement of political actors in the UPR is seen as being able to generate more political pressure than is the case for the treaty bodies. As a result of such pressure, the UPR “is perceived [by stakeholders] to be more likely to lead to actual compliance with the undertaken commitments.”⁵⁶ The same logic arguably applies, mutatis mutandis, here as well.

Second, audience costs imposed by the larger public are likewise less likely in the case of non-compliance with treaty body decisions than they are with respect to non-compliance with ECtHR judgments, for the simple reason that the treaty bodies and their work are less known to larger publics and receive much less publicity in the media and public discourse compared to the ECtHR. In the majority of cases, knowledge about treaty body decisions is confined to experts and the applicants; as a result, political mobilization around the failure to comply with a given view is theoretically unlikely and empirically rarely seen (with occasional exceptions, e.g., when the view in question addresses an issue that is already politically salient domestically).⁵⁷ More generally, while most enforcement mechanisms available in the human rights domain – agenda setting, naming and shaming, peer pressure, electoral politics, mobilization, and lobbying – are not dependent on a decision’s legal status,⁵⁸ the latter may affect their intensity by being interpreted by relevant audiences as signals of different normative valence and authoritativeness. If Teitgen’s suggestion above is correct, then the normative signals sent by courts and their judgments may be expected to be seen by States as stronger than those of non-judicial monitoring and dispute settlement bodies. Kal Raustiala captures this effect when he notes that “the factors that push states to comply with [legally binding obligations] often apply, albeit more weakly, to [legally non-binding ones] as well.”⁵⁹

13.3.3 Isolated versus Systematic Violations

Occasional violations of physical integrity rights can and do occur even in established and otherwise well-functioning democracies, either inadvertently, through negligence, or because individual actors either intentionally commit such acts or are under the belief that their conduct does not infringe the particular rights at issue. When such violations occur in an isolated fashion, we should expect principally rights-abiding States to be willing and able to address and remedy the violations in question. The situation is different in contexts where there are patterns of recurrent violations that are either condoned or intentionally pursued as State policy. In such systemic cases, both the willingness and/or the ability to effectively end violations, prevent their recurrence, and remedy those that have already occurred, will be missing or be severely compromised. The frequency of substantively related complaints and of adverse decisions over extended periods of time is typically indicative of such systemic problems, and their implementation is impeded by having to take place in the same political and institutional environment that gave rise to the violations in the first place.

The existence of State-condoned or State-authorized systemic or repeat violations militates against the execution of adverse judgments and treaty body views alike. Because it requires changing an existing preference for the status quo, bringing about compliance in such cases typically requires more than just persuasive authority, but also some tweaking of the respondent State’s cost-benefit calculations through the offer of incentives and/or the threat of sanctions. It is in this respect that the above-mentioned differences in the institutional arrangements for supervising the execution of judgments and views can be expected to be consequential, if only to an extent, in that the intergovernmental arrangement for supervising the execution of ECtHR judgments may generate some such incentives and sanctions, for example, through linking compliance to cooperation in other areas in which the respondent State has an interest. The treaty bodies, by contrast, have no such access to political incentives/sanctions that they could wield to enforce compliance against a recalcitrant State.

13.4 State of Compliance with Torture-Related Decisions

This section presents the state of compliance with ECtHR, HRC, and CAT decisions involving violations of the prohibition of torture that have been rendered until the end of 2019. Since I am interested especially in the comparative performance of the institutionally weaker UN human rights treaty bodies, only the twenty-one States that have received at least one relevant adverse HRC or CAT decision are included in the dataset, leaving out for the time being the twenty States subject only to adverse ECtHR judgments. Compliance is coded in accordance with the assessment of the body supervising the implementation of the decisions. In the case of the ECtHR, the Council of Europe’s Committee of Ministers is charged with the supervision of the execution of the ECtHR’s judgments (Article 46(2) ECHR). Monitoring whether States have paid the financial compensation awarded and taken individual and/or general measures to provide reparation in the applicant’s case and prevent a recurrence of the violation,⁶⁰ the Committee adopts a final resolution ending supervision when it is satisfied that all measures necessary for compliance have been adopted.⁶¹

HRC and CAT themselves conduct second-order compliance monitoring, having created the roles of rapporteur for follow-up of views in 1990⁶² and 2002,⁶³ respectively. While the committees do not, for the most part,⁶⁴ use the term “compliance” but refer to “satisfactory implementation” or “satisfactory resolution,” the terms of the CAT rapporteur for follow-up on decisions note the mandate to “monitor” and “encourage compliance” by examining whether respondent States have adopted “measures … pursuant to the Committee’s decision.”⁶⁵ In the case of the HRC the follow-up rapporteur is similarly charged with “ascertaining the measures taken by States parties to give effect to the Committee’s Views.”⁶⁶ The committees’ practice shows that the standard for “satisfactory implementation” is in principle one of substantive compliance so that their assessments can be taken as reasonable indicators for this.

13.4.1 State of Compliance: ECtHR

The ECtHR dataset comprises 1,521 judgments involving Article 3 ECHR that the ECtHR rendered against nineteen countries between 1990 and 2019. Fourteen of these are judgments recognizing friendly settlements or solutions with an award of costs and expenses.⁶⁷ Of those on the merits, fourteen involve conditional violations whereas 1,493 find past or ongoing violations of Article 3 ECHR, alone or together with infringements of other ECHR provisions and, in fourteen instances, jointly with conditional violations.⁶⁸ As of December 31, 2021, the Committee of Ministers had adopted final resolutions indicating sufficient compliance with respect to 71.4 percent of non-refoulement judgments and 100 percent of friendly settlements/solutions (see Table 13.1). Judgments declaring past or ongoing violations, by contrast, have been complied with at a rate of about only 36.4 percent. Since these are the most frequent type of judgment, overall compliance is, at 37.3 percent, equally low.

Table 13.1 Compliance status of ECtHR judgments by finding/violation type (as of December 31, 2021)

Type of finding/violation	Final resolution adopted	Supervision pending	Sum
Conditional non-refoulement violation(s)	10	4	14
Past/ongoing violation(s)	544	949†	1,493
Recognition of friendly settlement/solution	14	0	14
Total	568	953	1,521

^† Includes 14 judgments that find past/ongoing as well as conditional violations.

Source: Author’s dataset based on HUDOC (hudoc.echr.coe.int/) and HUDOC Exec (hudoc.exec.coe.int/) databases

Judgments related to Article 3 ECHR are unevenly distributed (see Figure 13.3). Russia by far dominates the dataset with 856 observations,⁶⁹ followed by Ukraine (215), Greece (116), and Bulgaria (91); the remaining countries account for considerably fewer judgments. With a high case count and low national compliance rate of 19.2 percent, Russia drives down the overall compliance rate; without Russia, this rate increases to 54.9 percent.

Figure 13.3 ECtHR judgments involving violations of Article 3 ECHR (–2019), by country

13.4.2 State of Compliance: HRC and CAT

Table 13.2 shows the compliance status for HRC’s and CAT’s torture-related decisions, including data from their latest available follow-up reports of 2020.⁷⁰ Until the end of 2019, the HRC had issued 242 adverse views against 33 different ECHR parties, 75 of which involved violations of Article 7 ICCPR, by itself or in combination with other provisions. Of these, a good third concerned conditional non-refoulement violations while the remaining views addressed actual violations. The rate of (documented) compliance is low, at 18.6 percent, and is better for conditional violations (37 percent) than for actual ones (8.3 percent). CAT has found violations of UNCAT against 18 ECHR parties⁷¹ in 92 decisions. CAT has assessed 88.5 percent of the 61 conditional violations as satisfactorily resolved, but only 25.8 percent of the decisions identifying past or ongoing violations. CAT’s overall compliance rate is 67.4 percent. Combined, the compliance rate across the two bodies is 45.5 percent. Unlike supervision in the ECHR/ECtHR system, however, not all treaty body decisions are systematically covered by the follow-up procedures and 30 decisions do not make any appearance in the follow-up reports, their implementation/compliance status thus being unknown.

Table 13.2 Follow-up assessments of HRC views and CAT decisions against ECHR parties

	Satisfactory resolution	All other assessments*	No information	Sum
Adverse HRC views (Art. 7 ICCPR)	14	39	22	75
thereof:
Cond. non-refoulement violations	10	4	13	27
Past/ongoing violations	4	35	9	48
Adverse CAT decisions	62	22	8	92
thereof:
Cond. non-refoulement violations	54	5	2	61
Past/ongoing violations	8†	17††	6	31
Total HRC and CAT	76	61	30	167

^* Includes e.g., findings of “follow-up ongoing,” “lack of implementation” and closed follow-up due to applicants having gone missing.

^† Includes five decisions with a follow-up assessment of “partially satisfactory resolution.”

^†† Includes one decision that found both a conditional and an actual violation.

Source: Author’s dataset based on HRC and CAT annual and follow-up reports

As in the case of ECtHR judgments, adverse findings by the treaty bodies are unevenly distributed (see Figure 13.4). The 3 countries that top the list are unusual suspects for violations of physical integrity rights: Denmark (32 decisions), Sweden (28), and Switzerland (26). The reason behind this counterintuitive finding is the fact that all but 6 of their combined 86 adverse decisions concern conditional violations of the non-refoulement norm.⁷²

Figure 13.4 Torture-related HRC views and CAT decisions against ECHR parties (–2019) by country

13.4.3 Discussion

The numbers show that a clear majority of applicants with access to the ECtHR and one or both of the treaty bodies prefer a determination of alleged torture-related violations by the former, rather than the latter. The number of adverse decisions is about nine times higher for the ECtHR than for the treaty bodies (and still about 4.4 times higher when excluding outlier Russia from both datasets). While this imbalance also holds for most States individually, seven States have received more adverse treaty body views than ECtHR judgments and two (Denmark and Norway) have received only adverse views, but no torture-related ECtHR judgments (see Table 13.4 in the appendix for individual country data).

The relationship between democracy and compliance with ECtHR judgments, while not determinative, is suggestive. The four countries with double-digit numbers of judgments against them and the lowest compliance rates also have the lowest average Polity IV regime scores (Azerbaijan, Russia, Ukraine)⁷³ or a relatively low liberal democracy score (Hungary)⁷⁴ compared with other countries in the dataset (averaged across the time period covered by the decisions against them). Conversely, respondent States with low judgment counts and high compliance rates comprise many countries with the highest Polity IV regime type score (“10”), which indicates perfect democracy (e.g., Ireland, Finland, Austria, and Switzerland). With respect to compliance with treaty body views, the patterns are not as clear-cut. While Azerbaijan, Russia, and Hungary appear not to have complied with any decision against them, this also holds true for several countries with higher regime type/democracy scores, such as Spain and Germany. That said, with case counts in the single digits, it is not possible to determine any patterns as the reasons for non-compliance may be unique to the individual case and in some cases the coding of non-compliance is due to the absence of follow-up information.

It is notable that the three countries that have complied with the highest numbers of adverse treaty body decisions (Denmark, Sweden, and Switzerland) are all consistently in the highest percentile ranks with respect to the World Bank’s rule of law indicator,⁷⁵ so the expectation that commitment to the rule of law might cut against compliance with non-binding treaty body views cannot be generally confirmed. To the contrary, all three countries accord treaty body views special weight, especially in immigration and expulsion proceedings, even if they do not necessarily share the committees’ ratio decidendi. In Sweden, legislation expressly provides that “[if] an international body that is competent to examine complaints from individuals has found that a refusal-of-entry or expulsion order in a particular case is contrary to a Swedish commitment under a convention, a residence permit shall be granted to the person covered by the order, unless there are exceptional grounds against granting a residence permit.”⁷⁶ The Danish Refugee Appeals Board also regularly reopens asylum cases in light of adverse treaty body decisions while in Switzerland CAT decisions can constitute “new evidence” that may result in a reassessment of an asylum seeker’s application.⁷⁷ So at least in the specific area of non-refoulement-related cases, the lack of legally binding status does not significantly impede the treaty body views’ domestic implementation.

In both institutional contexts, compliance rates differ between conditional and actual violations. With regard to the former, rates are comparably high, at 71.5 percent (ECtHR) and 72.7 percent (HRC/CAT); the rate is highest for CAT alone (88.5 percent). For actual violations, by contrast, compliance rates drop to 36.4 percent and 15.2 percent, respectively (without Russia, rates increase to 56.8 percent and 26.5 percent). In either case, the rate of compliance with ECtHR judgments finding actual past or ongoing violations is more than twice as high as the rate of compliance with comparable treaty body views. This is in line with the argument made above that conditional violations should be more straightforward and cheaper to comply with than actual violations which also carry the added moral and political opprobrium of having to recognize a violation, rather than being able to prevent one. When compliance costs increase, however, the institutionally stronger ECtHR system performs better than the treaty bodies in inducing compliance, suggesting that under these conditions differences in legal status, follow-up arrangements and mobilization are consequential.

That said, a high incidence of non-compliance often goes hand in hand with widespread, systemic patterns of violations that imply at best government indifference to violations committed in particular by the police and military, and at worst deliberate policy, neither of which is conducive to bringing about compliance. Many of the judgments and views against Russia deal with violations of this sort, for example, those concerning violations stemming from the wars in Chechnya and their aftermaths⁷⁸ and with police brutality in different parts of the country.⁷⁹ When, in addition, a State that is being subjected to peer pressure and publicly named and shamed does not care too much about the reputation it has among those using such means, then the institutionally stronger ECtHR supervisory mechanism also reaches the limits of what it can accomplish.

13.5 Conclusion

The existence of jurisdictional overlap in the human rights domain results in a growing body of decisions coming from different institutions that address the same or related rights with respect to the same States. This raises, among other things, the question of their comparative effectiveness in resolving disputes and providing remedies to victims of human rights violations. This chapter has compared rates of compliance with adverse decisions concerning the right to be free from torture and inhuman and degrading treatment or punishment issued by three institutions with ICP jurisdiction over European States as one indicator of such effectiveness.⁸⁰ While a reliable identification of the causal factors affecting compliance and non-compliance and their relative importance in different institutional contexts requires research methods that can deal with sizable numbers of cases and variables, such as multivariate regression analysis or qualitative comparative analysis (QCA), the present text has highlighted select factors expected to be consequential with respect to furthering or inhibiting compliance with ECtHR judgments, treaty body views, or both, and taken a first look at the distribution of compliance and non-compliance across different types of decisions and countries. The empirical evidence tentatively suggests that the UN human rights treaty bodies can induce compliance equally as well as regional courts when their decisions concern conditional violations and are addressed to liberal democracies, but that the ECtHR performs comparatively better when it comes to findings of actual past and/or ongoing violations. However, when a State lacks the aspiration to adhere to the values embodied in human rights norms and in independent monitoring, both institutional settings as they currently exist are incapable of nudging such a State toward compliance with adverse decisions. Further research will need to engage in more fine-grained analysis to assess causal pathways in greater detail, but it seems clear that the presence or absence of a particular legal status of the output of individual complaints procedures is, by itself, determinative neither of compliance nor of non-compliance.

14 The UK’s Compliance with the ICCPR and ECHR: A Tale of Two Treaties

Samuel White

14.1 Introduction

Despite the proliferation of international regimes in recent decades, compliance with treaty obligations remains a topic of much debate.¹ The field of human rights law has seen exponential growth with new treaties aimed at protecting broad categories of rights,² the rights of particular groups,³ or rights within a specific geographic space.⁴ With this range of protected rights has come an array of compliance mechanisms, some successful and others less so.

Scholars have sought to examine and measure the effectiveness of these mechanisms, to understand what works and what does not, as well as to understand why States bind themselves to these instruments. Many scholars look at this from a macro perspective, examining global compliance with particular rights, or using international measures to compare or rank States’ compliance. Examples in this field include Hathaway,⁵ Simmons,⁶ and Landman and Carvalho.⁷ Such works provide an important indication of levels of compliance and the differing success of various treaties in protecting the rights they secure, but they tell us very little about how particular countries experience compliance with their human rights obligations.

This chapter, therefore, examines the question of compliance with human rights treaties at a micro level, looking at the United Kingdom’s (UK) experience with the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The former is an important global treaty with a comparatively weak oversight model, the latter a regional example which is arguably one of the most successful human rights treaties in existence.⁸ In order to carry out this examination, this chapter provides an overview of each treaty’s compliance mechanism before looking at the impact each has had on the protection of human rights in the UK.

The UK has been selected as the basis of this analysis as it was heavily involved in drafting both instruments, and, whilst it has historically had a good record in relation to both, it is currently experiencing a period of significant debate around the future of its human rights protections, making questions about the protections offered by treaties timely.⁹ It is hoped that the lessons learned in the context of the UK, ICCPR, and ECHR will nevertheless be relevant beyond just these contexts and will contribute to the wider debate on human rights treaty compliance. The ICCPR and ECHR have been chosen as they protect similar but not wholly overlapping sets of rights.¹⁰ Whilst the fact that the UK is party to both may mean that the use of these instruments has developed somewhat differently than might be the case in a State which is party to just one, the selection of these instruments allows for a direct contrast of two comparable instruments in a single jurisdiction.

This analysis demonstrates the problems with the trade-off that takes place between designing treaties to which States will be willing to bind themselves, on the one hand, and designing treaties which are possessed of strong and effective compliance mechanisms, on the other. Building on the UK experience, this chapter concludes that strong compliance mechanisms appear central to ensuring the effectiveness of human rights treaties.

14.2 The International Covenant on Civil and Political Rights

The ICCPR has been called ‘probably the most important human rights treaty in the world’ in recognition of its global coverage and wide range of protected rights.¹¹ Despite its importance, however, it serves as an excellent exemplar of the trade-offs required to secure broad global adoption of a human rights treaty. Indeed, the content, compliance mechanisms, and delayed entry into force of the ICCPR all serve to illustrate its difficult beginnings.

It had initially been intended by the United Nations (UN) that there would be a single treaty to protect both the civil and political rights and the economic and social rights contained in the Universal Declaration of Human Rights (UDHR).¹² Disagreement however meant that this was not to be, and the result was the creation of both the ICCPR and International Covenant on Economic Social and Cultural Rights (ICESCR).¹³ The aim of both was to translate the UDHR into a treaty, binding on all States parties which would be ‘backed up by international supervision and enforcement’.¹⁴ There was further discord between States when it came to drafting the ICCPR and in particular its compliance mechanism.¹⁵ One delegate to the drafting committee described the drafting of this mechanism as ‘the most difficult and controversial aspect’ of the whole process.¹⁶ It is perhaps unsurprising then that proposals for compliance mechanisms which included ‘an International Court of Human Rights empowered to settle disputes concerning the Covenant’ were not adopted.¹⁷

Whilst it may not enjoy the quasi-judicial functions some envisaged,¹⁸ compliance with the ICCPR is overseen by the Human Rights Committee (HRC). The HRC is comprised of eighteen individuals who ‘are independent members who do not represent their national states or any other entity’.¹⁹ It has ‘responsibility for monitoring [the ICCPR’s] implementation’,²⁰ a responsibility it discharges in three main ways: ‘the examination of States’ reports, the decision of individual communications, and the writing of General Comments.’²¹

The system of States parties’ reports to the HRC is governed by Article 40 of the ICCPR. These reports provide information on how States parties ‘give effect to the rights recognized in the Covenant and on the progress made in the enjoyment of those rights’.²² The reports also ‘indicate the factors and difficulties … affecting the implementation of the [ICCPR]’.²³ This allows the HRC to focus on issues highlighted by States parties in their self-reporting to inform dialogue between the HRC and States parties.²⁴ Processes exist to allow the HRC to request further reports where necessary or to raise the absence of a report with individual States, but, importantly, the HRC does not have any power to force States parties to accede to such requests.²⁵

The second compliance mechanism is individual communication to the HRC, provided for in the First Optional Protocol to the ICCPR.²⁶ Parties to the Protocol recognise ‘the competence of the [HRC] to receive and consider communications from individuals’.²⁷ The HRC is not empowered to issue judgments, rather its decisions are referred to as ‘views’.²⁸ These are non-binding in nature and lack the legal force of judgments; domestic courts have frequently rejected any assertion that these views are binding.²⁹ Nonetheless, the HRC has made apparent its opinion that States parties ought to comply with these views and act to remedy any violation.³⁰ However rates of compliance with the HRC’s views are low. One study put the compliance rate at around 12 per cent, described as ‘a low figure by any measure’.³¹ There are 116 States parties to the Optional Protocol (from a total of 170 States parties to the ICCPR), but this does not include the UK.³² The UK has noted that it ‘remains to be convinced of the added practical value to people in the United Kingdom of rights of individual petition to the United Nations’.³³

The final mechanism at the disposal of the HRC is the issuing of General Comments. These have evolved to allow for the HRC to comment on matters which are relevant to States parties to the ICCPR, such as the interpretation of specific treaty provisions or the wider obligations of States parties. To date, thirty-seven have been issued.³⁴ Whilst these General Comments are not of themselves related to enforcement of the ICCPR, they ‘have proven to be a valuable jurisprudential resource’ when interpreting the ICCPR.³⁵ These are not discussed in any greater detail here as they are general in nature and are not directed at individual States’ compliance.

As this shows, although there are mechanisms in place to drive compliance with the ICCPR these are limited by the fact that they are non-enforceable: they require States parties to act on the HRC’s dicta, albeit with a treaty obligation to uphold and protect the rights secured by the ICCPR. Particularly for individuals within States, such as the UK, which have not accepted the right to individual petition to the HRC, there is no means by which they can bring complaints against a State. Indeed, in the UK, individuals can do nothing directly to enforce their rights under the ICCPR.

Academic commentary on the effectiveness of UN treaty bodies suggests more widely that there are concerns with the level of compliance they generate. Looking at the perception of the effectiveness of the wider UN human rights treaty body system, one study noted a widespread view ‘that [UN human rights] treaty bodies are only to some extent able to generate public pressure, or even not at all’.³⁶ This negative outlook is further reinforced by Krommendijk’s assessment of the effectiveness of treaty body recommendations, which concluded that, in the countries he surveyed, such recommendations ‘largely remained ineffective … [and] have either been rejected by governments or they have been so vague and broad that they simply did not elicit any follow-up measures’.³⁷ Against this backdrop, the UN has itself noted in respect of treaty bodies that ‘While there have been many cases which could be considered as “success stories”, it is clear that a large number of States fail to apply the remedies as recommended.’³⁸ The analysis which led to this pronouncement included an examination of compliance with the HRC’s views, therefore it seems reasonable to suggest that the general trends seen in relation to the treaty bodies extend to the HRC.

14.3 The UK and the International Covenant on Civil and Political Rights

Although the UK played a significant role in the drafting of the ICCPR,³⁹ no steps have been taken to translate the protections afforded by the ICCPR into UK domestic law.⁴⁰ It is hard to point to any direct impact that treaty membership has had on UK legislation. In the 1980s, ‘the United Kingdom Government’s representative to the UN Human Rights Committee was unable to identify even one case in which the British Courts had made reference to the Covenant’.⁴¹ A decade later, Klug, Starmer, and Weir noted that ‘The United Kingdom ratified the [ICCPR] in May 1976, but has since done nothing substantial to give effect to ratification or even publicly to recognise it.’⁴²

The ICCPR obliges States parties to give effect to the treaty in their own laws,⁴³ but how this happens is a matter for States themselves.⁴⁴ In the UK, despite suggestions to the contrary from the HRC, successive governments have been ‘content to assume … no changes [to UK domestic law] were necessary because the rights and freedoms recognised in the Covenant are inherent in the United Kingdom’s legal system and are protected by it and by Parliament’.⁴⁵

The lack of mandatory oversight of individual cases by a judicial or quasi-judicial treaty body has been suggested as a reason for the UK’s lack of engagement with and knowledge of the ICCPR. It has meant that ‘the HRC has had no opportunity to give a ruling upon United Kingdom compliance with its obligations under the ICCPR in the context of individual communications’.⁴⁶ This in turn has deprived the UK courts of an opportunity to engage more directly with the HRC’s decision-making. Although the HRC is not a court and so dialogue in the sense seen with international courts may not occur, Sandholtz has noted that in States which accept the right to individual petition, views of the HRC relating to that State are ‘available to activists, advocates and courts … to support the expansion of rights’ and courts have been willing to engage with the HRC’s views as they would other courts’ judgments.⁴⁷

The periodic reporting structure does not appear to have spurred UK lawmakers into action when it comes to the protection of the rights contained within the ICCPR. Klug, Starmer, and Weir assert that:

From the UK’s very first report … the [HRC has] been sceptical about the ability of arrangements here to protect human rights in the absence of either constitional [sic] guarantees of such rights or the incorporation of the Covenant in domestic law … scepticism increased when [the HRC] found that the 1979 report failed to refer to the legislative texts and judicial decisions which the government claimed gave protection to the rights and freedoms provided for in the Covenant.⁴⁸

This scepticism has not met with any concerted action on the part of the UK’s executive or legislature, despite the HRC going so far as to question whether ‘the United Kingdom was in fact in a position to “ensure” that the Covenant’s provisions were given proper effect’.⁴⁹ Whilst this situation may have developed to some extent since the HRC said this in 1984, the Committee has continued to raise concerns even after the UK legislated for the protection of some rights more formally in the UK via the Human Rights Act 1998 (HRA).⁵⁰

Given the reticence of the UK to address in any depth its compliance with the ICCPR, and the lack of action to enhance compliance by means of domestic law, it is hard to point to any concrete difference made by the ICCPR to the protection of individual rights in the UK.⁵¹ This lack of change brought about by the ICCPR within the UK is confirmed by an examination of the comments of the HRC in response to the UK’s periodic reporting which consistently highlight concerns.⁵² McGoldrick and Parker suggest that the ICCPR has had some limited impact in the UK,⁵³ but the idea that the ICCPR plays any great role is hard to square with the observations of the HRC, or with research by the author and that carried out some time ago by Klug, Starmer, and Weir.⁵⁴ Even McGoldrick and Parker themselves went on to note that ‘the Covenant is yet to make a marked impact on the consciousness of the British public or on much of the government’.⁵⁵

This general apathy towards the ICCPR in the UK is further demonstrated in the lack of reference to the treaty in domestic judgments. Thus, there were only six references in reported judgments in England and Wales which mentioned the ICCPR prior to the passage of the HRA.⁵⁶ These six cases themselves, moreover, highlight the unwillingness of the courts to engage with the ICCPR in any depth, even when it is directly mentioned. Of the six, the case which addressed the ICCPR in the most detail related to section 133 of the Criminal Justice Act 1988.⁵⁷ The rest did not engage with the ICCPR beyond an initial mention or observation,⁵⁸ and one rejected outright the use of the ICCPR.⁵⁹

The marked lack of engagement with the ICCPR by the UK courts prior to 1998 did not radically improve thereafter with the passage of the HRA and the creation of a greater culture of human rights literacy. In the years after 1998 the number of references to the ICCPR by the courts increased significantly. Nonetheless, these increased references did not generate any significant shift in the quality of the UK’s compliance with the ICCPR.⁶⁰ Indeed, in the majority of cases, the ICCPR was only mentioned briefly and in passing and did not see the courts engaging in any depth with the protections offered. As Figure 14.1, below, shows, despite an increase in references by courts to the ICCPR there is no clear trend in use in the first twenty years after the HRA.

Figure 14.1 Number of cases per year in the higher courts of England and Wales making reference to the ICCPR.

An examination of the HRC’s two sets of concluding observations since 1998 provides examples of the areas of concern. The 2008 document noted twenty-three separate issues for concern in relation to the UK’s compliance with the ICCPR.⁶¹ These included areas such as the detention without charge of terror suspects for extended periods under the Terrorism Act 2006,⁶² the control order regime restricting individual liberties without due process under the Prevention of Terrorism Act 2005,⁶³ and delayed access to lawyers for those detained under the Terrorism Act 2000.⁶⁴ Such concerns, and the others listed, suggest that there are areas in which the protections afforded to individuals under UK law fall short of those offered by the ICCPR. This is despite the fact that the HRA translates the ECHR rights into UK law; the HRC has noted that a range of ‘Covenant rights are not included among the provisions of the [ECHR] which has [sic] been incorporated into the domestic legal order through the [HRA]’,⁶⁵ meaning there can be no challenge under the HRA.

In 2015 the HRC again raised concerns about the UK’s compliance with the ICCPR. In its concluding observations the HRC elaborated further misgivings about the lack of direct applicability of the ICCPR in the UK.⁶⁶ The HRC additionally noted concerns about ‘the lack of a comprehensive mechanism for reviewing existing gaps and inconsistencies between the domestic human rights legal framework and the rights as set forth in the Covenant’.⁶⁷ The long list of other issues suggests that although concerns had shifted slightly from those of the previous reporting cycle, there remained serious reservations on the part of the HRC about the UK’s general level of compliance with its treaty obligations. Thus, for example, the HRC again highlighted counter-terrorism powers under the Terrorism Act 2000,⁶⁸ the power to deprive persons of citizenship, potentially rendering those persons stateless,⁶⁹ and the use of closed material procedures under the Justice and Security Act 2013 in civil cases where issues of national security are raised.⁷⁰

These two sets of concluding observations serve to highlight the range of issues of concern to the HRC in respect of the UK’s compliance with the ICCPR. It is clear from the HRC’s observations that it believes that the current framework of legal protection for human rights is not sufficient to protect all those rights guaranteed under the ICCPR. As this chapter goes on to argue, this is at least partially attributable to the inability of those in the UK directly to approach the HRC by means of individual petition, combined with the lack of strong enforcement powers on the part of the HRC. It also serves to show that the UK’s self-assurance of compliance with the ICCPR is misplaced.

14.4 The European Convention on Human Rights

In common with the ICCPR, the UK had an important role in the development of the ECHR.⁷¹ However, the UK’s motives may at times have been questionable; Bates asserts that the main driver for the UK’s entry into the ECHR system may have been ‘political, “face-saving” considerations’.⁷² There was opposition in the UK to the idea of individual petition with concern that it ‘might be used as a weapon of political agitation’.⁷³ Nevertheless, although sometimes fraught, the ECHR’s drafting process did not present the same levels of difficulty as had the ICCPR.⁷⁴

The ECHR’s system of protection has developed over time.⁷⁵ The early system of enforcement was complex and stemmed, at least in part, from the difficulties in securing agreement for the establishment of a judicial enforcement mechanism, to which various States, including the UK, had been opposed.⁷⁶ Some felt that the ‘machinery set up for enforcing the [ECHR] should not be purely judicial but should be able and competent to give due weight to political as well as legal considerations’.⁷⁷ However, as time went on, this system was overhauled, and the original process was replaced by Protocol 11 which substituted this approach to decision-making with a permanent European Court of Human Rights (ECtHR), with the new system taking effect on 1 November 1998.

The process has since been reformed again by Protocol 14 of 2004 which Bates summarises as aiming ‘to maximise economy of procedure at Strasbourg’.⁷⁸ Judgments of the ECtHR do not provide detail on the action which member States must take to address violations, where these are found: such action is at the discretion of the member State itself.⁷⁹ Where a case is ‘exceptional’ a reference may be made to the Grand Chamber of seventeen judges for judgment.⁸⁰ A decision of the ECtHR is binding on member States.⁸¹ Any judgment of the Grand Chamber is final, whilst other judgments become final where the parties indicate that they do not wish to refer the judgment to the Grand Chamber, where three months have elapsed since the judgment, or where the Grand Chamber rejects a request to refer the judgment.⁸²

Article 46 of the ECHR, as amended by Protocol 14, charges the Committee of Ministers, a body comprised of the foreign ministers of each member State, with overseeing the enforcement of the ECtHR’s judgments. Under Protocol 14, the Committee of Ministers may now refer a member State to the ECtHR for non-compliance.⁸³ In addition to the Committee of Ministers and the ECtHR, the Parliamentary Assembly of the Council of Europe also plays a role in enforcement; its recommendations, resolutions, and opinions inform the work of the Committee of Ministers.⁸⁴ The ECtHR enjoys good levels of compliance with its judgments and the system as a whole has been described as ‘astoundingly successful’,⁸⁵ suggesting that this mix of mandatory judicial oversight (the ECtHR) combined with political supervision (the Committee of Ministers) is highly effective. Indeed, as will be argued, the relative strength of the combination of mandatory judicial oversight and individual petition is closely linked with the UK’s high level of compliance with the ECHR.

14.5 The UK and the European Convention on Human Rights

Although the ICCPR has not resulted in any significant changes to the human rights landscape in the UK, the same is not true of the ECHR. Even before the ECHR was a part of the UK’s domestic law, Lord Bingham asserted that it had played a role in ‘the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law’.⁸⁶ Examining these areas, it seems fair to assert that prior to the reception of the rights protected by the ECHR into UK law by way of the HRA, the ECHR’s impact was already significant. Summarising the use of international human rights treaties in England and Wales prior to the HRA, Hunt suggests that ‘During … the mid-1970s, domestic judges … not only [displayed] a willingness to interpret domestic law in the light of international human rights instruments, but often considered themselves under an obligation to do so.’⁸⁷ However, as Hunt’s own analysis illustrates this willingness seems to have been almost exclusively focused on the ECHR.

Much of this development was driven by discourse between the UK courts and the ECtHR. The overall number of violations by the UK remained comparatively low during this period, but there was sufficient opportunity for the ECtHR to rule on matters of UK law, giving the UK courts the chance to engage with Strasbourg’s judgments to develop their own reasoning. The judgments of the ECtHR directly impacted the UK’s own relationship with the ECHR system. Thus, whilst Masterman notes that ‘to think that [ECtHR] jurisprudence could be followed or applied in the manner of precedents would be a mistake’,⁸⁸ Beloff and Mountfield show that UK courts set some store by the ECtHR’s rulings when making decisions.⁸⁹ For example, the UK courts relied directly on jurisprudence of the ECtHR in relation to freedom of expression.⁹⁰ It is therefore evident that the domestic courts were willing to look to the work of the ECtHR as part of their decision-making process, suggesting that the courts saw the benefit of dialogue with the ECtHR for the protection of human rights in the UK. This dialogue would not have been possible without the right of individual petition; a right entirely absent in the case of the protections offered by the ICCPR.

The HRA and the translation of the ECHR rights into UK domestic law marked a significant shift in the protection of human rights in the UK. Arguably, the effectiveness, in both legal and political terms of the ECtHR in identifying breaches of individual rights in the UK was a major factor in the decision to move the primary responsibility for the protection of individual rights into the domestic sphere by enacting the HRA. Indeed, concern that traditional methods of human rights protection in the UK were ineffective was ‘reinforced by a perception that the European Court of Human Rights was finding the United Kingdom in violation of the [ECHR] with disquieting frequency’.⁹¹

The nature of the ECHR’s enforcement system also appears to have been one of the reasons behind the decision to enact the HRA. The government of the day noted:

The European Convention is not the only international human rights agreement to which the United Kingdom and other like-minded countries are party, but … it has become one of the premier agreements defining standards of behaviour across Europe. It was also for many years unique because of the system which it put in place for people from signatory countries to take complaints to Strasbourg and for those complaints to be judicially determined. These arrangements are by now well tried and tested … They therefore afford an excellent basis for the Human Rights Bill which we are now introducing.⁹²

Since the HRA entered into force there have been increasingly few applications from the UK to the ECtHR and ‘the UK has among the lowest number of applications per year allocated for a decision. It also has a lower percentage of these applications declared admissible than most and loses proportionately fewer of the cases brought against it than most’.⁹³

Whilst the biggest driver in the UK’s increased compliance in the last two decades is undoubtedly the HRA and its translation of the ECHR rights into domestic law, a number of points should be made. First, the fact that the courts of the UK are now required to view human rights questions through the lens of the rights protected by the ECHR means that there is increased opportunity for proceedings in the national courts to address complaints under the ECHR. This in turn also allows the national courts to develop their dialogue with the ECtHR.⁹⁴ Thus, judgments of the ECtHR continue to play an important role in the protection of the Convention rights within the UK. Second, the political importance and power of enforceable judgments of the ECtHR should not be underestimated. As the row between the UK Parliament and the ECtHR on prisoner voting showed, it is very hard to face down the legal and political pressure of an adverse ruling by the Court even where political red lines have been drawn.⁹⁵

It is clear, therefore, that the design of the enforcement mechanism of the ECHR plays an important role in the high level of compliance that the UK enjoys. The UK has developed its domestic human rights protections to reflect those envisaged under the ECHR, and the nature of the ECtHR’s judgments has allowed the domestic courts to engage with their counterparts in the ECtHR on questions of law. Moreover, the success of the ECHR system, coupled with the political impact of adverse judgments of the ECtHR, was a major factor in the decision to enact the HRA and bring the rights contained in the ECHR ‘home’ into UK domestic law.⁹⁶

14.6 Analysis

As Heyns and Viljoen have noted, ‘The success or failure of any international human rights system should be evaluated in accordance with its impact on human rights practices on the domestic … level.’⁹⁷ With this in mind, the wide gulf between the impact of ICCPR and ECHR in the UK suggests that the ECHR has been a much greater success.

Whilst the UK’s track record at the ECtHR has improved over the past decades, an improvement which has accelerated significantly since 1998, there was already a movement towards use of the ECHR in domestic courts long before this was envisaged by domestic law. In 1998 when the HRA translated ECHR rights into UK domestic law, UK judges were empowered more overtly to have regard to the dicta of the ECtHR in their own decision-making.⁹⁸ More recently still, the UK’s Supreme Court has demonstrated its willingness to keep British jurisprudence pegged to the ECtHR’s interpretation of the ECHR,⁹⁹ further highlighting the continuing relevance of the ECtHR as a point of reference for domestic courts. Commentators and judges have pointed to the relatively broad impact of the ECHR on a range of areas, including in ‘the interpretation of ambiguous statutory provisions, guiding the exercise of discretions [and] bearing on the development of the common law’.¹⁰⁰

By contrast, the UK’s compliance with the ICCPR receives little attention from the UK courts or from Parliament and this has not dramatically improved over the course of the UK’s involvement with the treaty.¹⁰¹ Whilst there may be a number of reasons at play for this vast disparity, given the ECtHR’s role in driving compliance with the ECHR it is impossible to underplay the importance of mandatory judicial oversight of treaty bodies in ensuring that States comply with their treaty obligations. As the majority of interaction between the UK and HRC takes place quietly by means of periodic reporting and concluding observations and receives little publicity, public awareness and ownership of the rights protected by the ICCPR are almost non-existent.¹⁰² Moreover, the nature of periodic reports and concluding observations means that the UK courts are unlikely to engage with these in developing their own jurisprudence, preferring instead the surer ground offered by decisions of an international court.

Examining the UK experience, it seems fair to conclude that strong judicial or quasi-judicial compliance mechanisms are essential in ensuring the effectiveness of human rights treaties. However, it is acknowledged that this may deter States from becoming party to such conventions. Hathaway, drawing together empirical research on the effect of international human rights law, highlights the apparent trade-off between States’ participation in and the effectiveness of human rights treaties.¹⁰³ States are more likely to participate in treaty systems with weaker compliance models. As Hathaway notes, ‘Where enforcement is stronger, all else being equal fewer countries should be expected to commit. However, those fewer adherents will be more likely to comply with the treaty than they would be if the treaty were less strongly enforced.’¹⁰⁴

This raises an important question: are the gains of greater compliance significant enough to justify the loss of engagement? In ‘Do Human Rights Treaties Make a Difference?’ Hathaway presents some concerning findings in relation to States’ willingness to engage with human rights treaties: in some cases, membership of such treaty systems was shown to correlate with poorer performance in terms of compliance with the protected rights.¹⁰⁵ This suggests that the dichotomy might be starker than first presented. On the one hand strong compliance systems provide protection for human rights but may discourage States from becoming party to a treaty because of the risks associated with breaching treaty obligations. However, on the other hand, weaker systems allow States cynically to tether themselves to such structures to gain from the wider political and economic benefits they may bring without raising human rights standards in any meaningful way.¹⁰⁶ Simmons is rather more optimistic about the positive changes brought about by instruments, such as the ICCPR, believing that they can effectively empower domestic actors to bring about change.¹⁰⁷ Nevertheless, she acknowledges that such treaties cannot ‘solve all problems’.¹⁰⁸ Whilst there is not enough space to explore this in greater depth here, it is a question which merits further research, particularly in the context of increasing antagonism to global institutions, such as the UN.

In any event, the UK’s experience with the ICCPR and ECHR serves to underline the difference which a strong compliance mechanism (and a State’s active engagement) can make to the domestic effectiveness and relevance of a human rights treaty. Given the broad range of rights protected by the ICCPR, the lack of engagement with the ICCPR and its compliance machinery represents a missed opportunity for the further development of human rights in the UK. If the pattern witnessed here is mirrored with respect to other human rights instruments in the UK, as well as in other States more broadly, it should give pause for thought about the way in which human rights are protected, and what can be done to strengthen the oversight of these protections within existing frameworks.¹⁰⁹

14.7 Conclusion

This chapter has illustrated the differing outcomes brought about by differing models of compliance mechanism in human rights treaties. Using the UK’s experience with the ECHR and ICCPR as a lens, it has argued that the former – characterised by a strong, judicial compliance mechanism – can be linked with better human rights outcomes. By contrast, the ICCPR, with its weaker, reporting-based compliance monitoring and opt-in right of individual petition, has not had the same impact.

Building on the UK experience it seems reasonable to conclude that strong compliance mechanisms in which all States parties are expected to participate are important in ensuring the effectiveness of human rights treaties. Whilst these findings relate to the UK, there is no reason to believe that the lessons learned in this context cannot be applied more widely to contribute to the debate on how human rights are best protected. A regime of human rights protection centred on strong compliance monitoring may deter States from becoming party to a human rights treaty, yet the benefits for individuals’ rights protection may be enough to outweigh this.

This chapter does not seek to argue that the vast advances in rights protection since 1945 have not dramatically improved the attainment of human rights. Rather, it aims to help to safeguard the gains achieved and to allow these to be further built upon to ensure that rights protection is strengthened, and that human rights courts and treaty bodies are in a better position to ensure that the rights they steward are respected, protected, and fulfilled.

15 Exploring the Role of Decisions by Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies in Advancing Anti-Trafficking Efforts

Noemi Magugliani and Jean-Pierre Gauci

15.1 Introduction

In the last two decades, the international community has increasingly turned its attention towards the phenomenon of trafficking in human beings. Since the adoption of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), as well as subsequent regional conventions,¹ many States have progressively sought to align their domestic legislation with the standards required by international law. Although the majority of States have adopted legislation criminalising trafficking in human beings,² and many have also passed legislation aimed at protecting trafficked persons, States’ compliance with international and domestic standards has often been questioned.

This chapter explores proceedings before judicial, quasi-judicial and specialised non-judicial bodies³ as determinants of advances in anti-trafficking efforts. In this context, ‘determinants’ are understood as factors shaping governments’ anti-trafficking efforts and influencing compliance with and implementation of international standards. This contribution outlines how the role of such proceedings is perceived by anti-trafficking stakeholders, and, critically, the various ways in which proceedings influence anti-trafficking efforts. Importantly, the chapter explores how proceedings before judicial, quasi-judicial and specialised non-judicial bodies interact with other determinants in influencing anti-trafficking efforts at the domestic level.

While there is significant analysis of States’ anti-trafficking efforts, it is necessary, in our view, to shift the focus of inquiry towards the determinants of anti-trafficking efforts in trying to understand why States adopt, or comply with, protective and progressive legislation to tackle human trafficking. While some determinants are readily identifiable (e.g., the presence of political will, the ratification of international instruments and pressure by monitoring mechanisms or external donors), others have not yet been sufficiently explored, such as the decisions of judicial, quasi-judicial and specialised non-judicial bodies. The complex, non-linear and often hidden interactions between different factors have equally not been adequately addressed. Decisions of international and regional courts and quasi-judicial bodies are relevant determinants of States’ anti-trafficking efforts, as identified by, inter alia, the Organization for Security and Co-operation in Europe (OSCE).⁴

This chapter builds on existing literature on the role of regional courts in shaping changes in anti-trafficking action,⁵ taking a step beyond the existing focus on judicial bodies and on the European Court of Human Rights (ECtHR) in particular. We have identified 19 individual communications to the United Nations Treaty Bodies,⁶ 342 communications of the United Nations Special Rapporteur on Trafficking in Persons,⁷ 12 judgments of the ECtHR,⁸ and 2 judgments of the Inter-American Court of Human Rights (IACtHR)⁹ that tackle issues related to the implementation of anti-trafficking legislation.¹⁰ Deploying a comparative approach, this chapter evaluates four case studies (Argentina, Brazil, Cyprus and the United Kingdom) in order to assess the role of judicial, quasi-judicial and specialised non-judicial bodies, including supervisory bodies, in effecting change at the domestic level. The chapter draws on a large-scale research project exploring the determinants of anti-trafficking efforts globally.¹¹ The project assesses the links and sequencing of specific factors that have yielded improved political will and capacity in national governments to address trafficking in persons and which have led to sustained and comprehensive anti-trafficking efforts. It explores findings from literature reviews, expert interviews, a global survey and a series of fourteen case studies (of which the above are four).

15.2 Decisions by Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies as Determinants of Anti-Trafficking Efforts

Research on human trafficking and anti-trafficking efforts highlights a broad range of factors which influence governments’ anti-trafficking responses. These encompass factors instrumental in, for example, bringing about compliance and implementation of international standards, as well as causing governments to improve, hinder or regress efforts. Determinants of anti-trafficking efforts do not work in isolation. However, there is no single framework or sequencing; rather, the processes through which anti-trafficking laws, policies and measures emerge and co-exist are particular, varied and, crucially, contextual and inter-dependent.

A number of determinants have been discussed in the literature over the last two decades, including political will, international standards and mechanisms, structural conditions, the role of civil society organisations and funding and resource allocation. Although literature may be lacking on the role of the jurisprudence of regional and international courts and bodies due to the limited number of cases in the past two decades, regional and international bodies as well as some scholars have highlighted how decisions by international courts, tribunals and quasi-judicial bodies can be a decisive factor in the implementation of international standards, and in influencing national anti-trafficking responses.¹²

Crucially, decisions by domestic courts can trigger legislative change and oblige legislative compliance with international standards. For example, the general reports of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) identify specific domestic jurisprudence which has triggered legislative change and pushed governments to adopt the advised change. They highlight, inter alia, Hussein v Labour Court,¹³ which triggered legislative changes in Ireland through the enactment of the Employment Permits (Amendment) Act 2014 on 27 July 2014, and NN v Secretary of State for the Home Department,¹⁴ where a United Kingdom Home Office policy was found to be unlawful and incompatible with the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and which resulted in the introduction of a new process and guidance to assess the support needs of survivors beyond the previous exit timescales. More recently, and beyond the European context, in the case of LVCO v AG,¹⁵ the Colombian Constitutional Court ordered structural measures to improve protection of trafficked persons at the national level, including: designing a protocol to identify trafficked persons; training public servants with functions related to human trafficking; and protecting the human rights of trafficked persons as soon as signs of trafficking are detected, independently of what occurs in criminal proceedings.

The OSCE has further noted that the reasoning and findings of domestic courts, for example, can be instrumental ‘to ensure consistency of judicial practice and correct understanding and interpretation of anti-trafficking legislation’.¹⁶ Interpretation and clarifications by higher courts also play an important role, especially when they are binding on lower courts.¹⁷ Such decisions also reinforce international legal obligations and encourage harmonisation and co-operation across different judicial interpretations.

With respect to the role of regional courts, an evaluation by Duffy found that courts reinforce ‘duties to prevent, regulate, investigate, cooperate, criminalize and punish’.¹⁸ Her analysis focusses on decisions by the ECtHR, the African Commission on Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States, the Inter-American Commission on Human Rights (IACmHR) and the IACtHR. According to Duffy, these decisions can shed light on the shortfalls of legal frameworks and State policies, and they can be instrumental in clarifying and underlining States’ positive obligations.¹⁹ Duffy highlights four key examples:

In some cases, such as CN v. UK or Fazenda Brasil Verde, the litigation has led to legislative changes to enhance criminal law and jurisdiction over these offences. Many other cases, however, including Mani, or Periera v. Brazil, reveal something quite different, which is laws that exist on paper but are not understood or given effect in practice, for varying reasons including the lack of capacity and knowledge of prosecutors or judges themselves, the insensitive and ineffective handling of investigations or direct corruption and collusion of state agents.²⁰

The sustained impact of strategic litigation before regional courts is further explored by Milano, with specific reference to the ECtHR. Milano recognises the influence of the ECtHR’s landmark case Rantsev v Cyprus and Russia, ²¹ although she is critical of the Court’s ruling in LE v Greece, ²² which, she argues, failed to meet the expectations set out in Rantsev and therefore represents a regression.²³

The role of decisions of regional courts has also been highlighted in a series of expert interviews conducted as part of the research that informed this chapter. A member of the secretariat of the ECAT emphasised how the ECtHR has triggered positive changes through the judgments of, inter alia, Rantsev v Cyprus and Russia,²⁴ Chowdury and others v Greece²⁵ and Siliadin v France,²⁶ causing changes in national laws and the adoption of action plans.²⁷ The same reasoning could be applied in the future to the more recent cases of VCL and AN v the United Kingdom²⁸ and Zoletic and others v Azerbaijan.²⁹ Other participants in the research project also noted that judicial reviews have the potential to trigger direct change in obliging the enforcement of international or regional legal obligations.³⁰ A similar observation was made with respect to strategic litigation, which interviewees argued can be an influential tool in creating legal and policy changes.³¹ With regards to the influence of UN Special Procedures, including UN Special Rapporteurs, the system of country visits and subsequent reports and recommendations have been deemed influential when rapporteurs focus on a specific policy area. Governments are responsive because country visits take place in the context of broader discussions and engagements about legislative change and improvements. Concerns of reputation and international relations are at play, but what is important to enable such influence is trust and dialogue. While there is minimal influence from governments who do not engage and co-operate with country visits, where there is a dialogue and a receptiveness to visits, changes are likely to follow.³²

More broadly, judicial and quasi-judicial decisions can be decisive in identifying gaps in national legislation and outlining where the law needs to be improved.³³ However, the impact of litigation, and more broadly of decisions, depends on whether there is a system of precedent, or whether or not such decisions are binding. It has been noted, for example, that in Southeast Asia, court decisions are rarely written, published or translated, reducing the influence that precedent-setting may have in the region (even if influential within the specific country).³⁴ A similar issue was raised in the context of our research in Guyana.³⁵ In addition, integral to the influence of judicial and quasi-judicial decisions are judges’, or more broadly, decision-makers’, own understanding and awareness of trafficking in persons and anti-trafficking law.³⁶ Examples have emerged of judges having a lack of awareness and understanding of how international legal instruments ratified by their country apply,³⁷ as well as a lack of understanding around specific provisions (with the non-punishment principle being a key example).³⁸ Moreover, sight should not be lost of the fact that social and cultural contexts may influence judges and decision-makers. For example, it has been suggested that in Brazil judges and decision-makers do not always see ‘the gravity of the situation’ because of an underlying and embedded ‘culture of exploitation’,³⁹ a reality that would seem to normalise certain behaviours that fall within the scope of the trafficking definition. These socio-cultural contextual factors, alongside the limits to judges’ understandings and the difficulties of ensuring victim co-operation in prosecutions, limit the impact of courts and judges.⁴⁰

Indeed, judicial and quasi-judicial decisions do not operate in a vacuum; their influence is determined by several other factors beyond understanding of the law and social and cultural contexts. Other determinant factors identified are, for example, a State’s political situation and political will to act in the aftermath of a judicial or quasi-judicial decision.⁴¹ For example, it has been noted that the rule of law in the United Kingdom facilitates a role for court decisions, which are often based on the ECAT, in enforcing regional obligations domestically.⁴² In contrast, in Moldova and Cambodia (amongst other countries), it has been noted that the courts have minimal impact due to corruption, thus limiting their ability to trigger policy or legislative change.⁴³

Against this background, however, it is relevant to note that the impact of judicial and quasi-judicial decisions, as well as of specialised non-judicial bodies’ observations, can be amplified when decisions are used as levers and accountability tools by, inter alia, civil society and the media. This is demonstrated, for example, by the cases of fishermen from Indonesia being trafficked to New Zealand on Korean boats where ‘fishing companies were bringing these migrant labourers into New Zealand under a very specific provision of the Fisheries Act’.⁴⁴ International Law Aid and the International Transport Workers’ Federation, as well as other non-governmental organisations (NGOs), joined forces in pressuring the New Zealand Government to change specific provisions of the Fisheries Act 1996 – pressure that resulted in a ministerial inquiry. In parallel, the Supreme Court in New Zealand also heard cases in relation to wage claims. Together, these factors brought about significant changes in practice.⁴⁵

15.3 The Role of Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies in Argentina, Brazil, Cyprus and the United Kingdom

For the purpose of this chapter, we have selected four case studies (Argentina, Brazil, Cyprus and the United Kingdom) from amongst the fourteen undertaken as part of the broader project on determinants of anti-trafficking efforts.⁴⁶ These four were selected because they represent different levels of engagement of judicial, quasi-judicial and specialised non-judicial bodies across two distinct geographical areas. These are four exploratory, or hypothesis-generating, case studies, selected according to three baseline criteria: the presence of engagement of judicial, quasi-judicial or specialised non-judicial bodies; the availability of proof of such engagement; and the presence of different qualitative levels of engagement of such bodies.⁴⁷

15.3.1 Argentina

As recognised by the United Nations Office on Drugs and Crime in its Global Report on Trafficking in Persons of 2018, Argentina reported the highest numbers of prosecution and convictions of trafficking and trafficking-related offences in the South American region.⁴⁸ By July 2020, Argentina had reported a total of 405 decisions on human trafficking and exploitation, of which 282 were convictions for human trafficking, 62 were convictions for exploitation and 61 were acquittals. ⁴⁹ Argentina was one of the countries that promoted the adoption of the Palermo Protocol, driven by its political will to fight human trafficking in minors and by its strategic motivations of dealing with human trafficking as a form of transnational organised crime.⁵⁰ Argentina ratified the Palermo Protocol in August 2002 through Law 25.632,⁵¹ and in 2008 it enshrined the crime of human trafficking in domestic law through Law 26.364.⁵²

In the Argentinian context, the influence of judicial cases as determinants for public policies and legislation on anti-trafficking has always been critical. Indeed, judicial cases influenced the enactment of all three of the main anti-trafficking laws, namely Law 26.364 (2008) creating the crime of human trafficking; Law 26.842 (2012)⁵³ modifying Law 26.364, including eliminating the ‘means’ element from the crime; and Law 27.508 (2019),⁵⁴ creating a fund to assist and compensate trafficked persons.

At the time of the first landmark case involving Marita Verón, Argentina did not have any criminal provision punishing human trafficking. Marita Verón was kidnapped and subjected to sexual exploitation in 2002. Through the establishment of the NGO Fundación María de los Ángeles, Marita’s mother advocated for the case of her daughter and for the recognition of human trafficking in Argentina. Although the defendants were at first acquitted in 2012, the acquittal was met with widespread outrage, and on appeal the Supreme Court of Tucumán convicted ten out of the thirteen suspects (seven men and six women). The case of Marita Verón exposed the inadequacy of the Argentinian legal framework, the absence of legal provisions enabling an effective investigation into her disappearance, and difficulties in the prosecution of her alleged traffickers. Though the trial did not start until 2012, the legislators – taking into account the events of this particular case – were prompted to recognise the need to adopt provisions criminalising trafficking in persons, which led to the adoption of Law 26.364. When the first instance Court acquitted the thirteen defendants in 2012, extraordinary legislative debates were summoned, and Law 26.842 was adopted in December 2012. Amongst the modifications introduced, the law eliminated the ‘means’ element from the definition of the crime of human trafficking – which is now only considered to be an aggravated circumstance. According to the legislative debates, it is evident that the poor decision rendered in the case of Marita Verón was one of the main determinants for the enactment of Law 26.842.

A second landmark case, Montoya, highlighted the lack of provisions with respect to adequate redress for trafficked persons. In this case the claimant, who had been trafficked for the purpose of sexual exploitation, acted as a querellante (complainant) in the trial against the traffickers, seeking civil damages. She also sued the municipal State for lack of prevention and for the facilitation of the exploitation. The tribunal sentenced three individuals to up to seven years in prison, and most notably it ruled in favour of the querellante in the civil damage case, ordering the municipality to pay 780,000 pesos (ca. €7,000). As in the case of Marita Verón, the Montoya case exposed gaps in the domestic anti-trafficking legal framework. Following the judgment, the Federal Council for the Fight against Human Trafficking and Exploitation and for the Protection and Assistance of Victims⁵⁵ proposed the creation of a fund to allow for the compensation of trafficked persons. In 2019, Law 27.508 was enacted, establishing a trust fund comprised of traffickers’ seized assets. Notably, Law 27.508 also introduced a requirement for criminal courts to award trafficked persons restitution at the time of the traffickers’ conviction and provided for the possibility of filing civil suits to receive additional restitution. In the year of its enactment, criminal courts applied Law 27.508 in seven cases, granting restitution to trafficked persons.

In 2010, the United Nations Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, conducted a country visit to Argentina at the invitation of the government.⁵⁶ The Special Rapporteur welcomed the adoption of Law 26.364 and the creation of dedicated offices within the executive to provide trafficked persons with assistance and to investigate trafficking in persons, but also observed a number of challenges. In particular, she noted the weak co-ordination of anti-trafficking activities, and the lack of identification and referral mechanisms for trafficked persons. The Special Rapporteur called on the Argentinian Government to, inter alia, establish:

… a federal central agency to enhance coordination, not only among federal offices and units that have already been set up to combat trafficking in persons and assist victims, but also between them and authorities at the provincial and municipal levels [and to consider establishing] a special fund for the compensation of trafficked persons.⁵⁷

UN Treaty Bodies have also raised concerns, over the years, with particular reference to the implementation of existing legislation. The Committee on the Elimination of Discrimination Against Women, in its 2016 Concluding Observations on the Seventh Periodic Report of Argentina, recommended that the State party ‘[e]stablish a referral and identification mechanism, increase funding for shelters and provide counselling, rehabilitation services and psychosocial assistance for women and girls who are victims of trafficking and exploitation of prostitution’.⁵⁸ In 2018, the Committee on Economic, Social and Cultural Rights (CESCR) made similar recommendations in the context of exploitation beyond forced prostitution, and with respect to trafficked persons regardless of biological sex. The CESCR noted that ‘most of the State party’s mechanisms for combating trafficking in women are geared towards emergency care and there are no programmes of sustained medium- or long-term assistance for victims’.⁵⁹ The Committee recommended ‘that the State party strengthen public policies for the prevention and punishment of trafficking in persons [and] that the principle of exemption from criminal liability be respected and that, accordingly, victims of trafficking in persons not be detained or prosecuted’.⁶⁰ Similar recommendations were also made as recently as 2020 by the Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families (CMW). In its Concluding Observations on the Second Periodic Report of Argentina, the CMW recommended that Argentina ‘[a]llocate sufficient resources in each province for the provision of psychological, legal and medical assistance to victims, in addition to shelters or specialized care centres for child, adolescent and women victims of trafficking in persons’.⁶¹

While the Special Rapporteur’s recommendation to establish a federal central agency to enhance anti-trafficking co-ordination was addressed in 2012 through Law 26.842, a special fund was only created in 2019, following the judgment in the Montoya case, and the recommendations from UN Treaty Bodies have had limited impact, including in terms of pressure, in effecting change. The Argentinian case study highlights the role of judicial decisions in improving anti-trafficking efforts – including where a ‘negative’ judicial decision is reached – and it reflects both the cumulative effect of various determinants and the broader context and timescales within which determinants must be considered.

15.3.2 Brazil

Over the past two decades, Brazil has seen notable shifts in developing trafficking policy, legislation and initiatives. Brazil ratified the Palermo Protocol in 2004, through Decree n. 5.017. Upon coming into force, a series of anti-trafficking efforts were undertaken domestically. For example, in March 2005, Law n. 11.106 amended the Brazilian Criminal Code, specifically Article 231, which criminalised the ‘traffic of women’, and changed it to the offence of ‘traffic[king] in persons for sexual exploitation’.⁶² In addition, internal traffic in persons for sexual exploitation was criminalised under Article 231-A. Similarly, in 2006, Decree n. 5.948 was enacted, which approved the National Policy to Combat Trafficking in Persons and established an inter-ministerial working group to draft a proposal for a national plan.⁶³ The first National Plan for Combating Human Trafficking was then approved by Decree n. 6.347 in 2008.⁶⁴

While decisions of judicial, quasi-judicial and non-judicial bodies have not been identified as key determinants of anti-trafficking efforts broadly in the Brazilian context, interviewees have highlighted the role played by such decisions in a particular sphere – that of trafficking for the purpose of forced labour. Labour trafficking is widely recognised as an issue in Brazil, so there is a pre-existing, well-developed legislative background for protecting workers’ conditions,⁶⁵ in addition to an established network to tackle modern slavery (or ‘work analogous to slavery’, as described by Article 149 of the Brazilian Criminal Code).⁶⁶ The underlying motivation for labour protection is rooted in Brazil’s history and links with slavery,⁶⁷ and supplemented by external factors, including the IACmHR decision in José Pereira v Brazil.⁶⁸ As part of the amicable settlement agreement through which the government of Brazil accepted responsibility for the wrongdoings in this case, Brazil was called upon to, inter alia, pay financial compensation for the damages suffered by the claimant; commit to prosecute and punish the individuals responsible; and institute preventive measures, including legislative amendments, and measures to monitor and repress slave labour in Brazil. With regard to compensatory measures, the Brazilian State forwarded a bill to the National Congress which, adopted as a matter of urgency following a symbolic vote, allowed the claimant to be compensated. Through the case, it became apparent that there was a need for amendments in domestic legislation to provide a more precise definition of forced labour, which was prioritised and finally introduced through Law 10.803/2003, with the José Pereira case acting as a catalyst for this process.

Caso Trabalhadores da Fazenda Brasil Verde v Brazil,⁶⁹ a landmark judgment of the IACtHR, also dealt with practices of forced labour and debt bondage, but in a different context – a cattle ranch located in the municipality of Sapucaia, in the south of the state of Pará. Although the Brazilian Government made efforts to address slave labour during the 2000s, largely in response to key recommendations from the IACmHR in the José Pereira case, the anti-trafficking legal and policy framework in Brazil was – and remains – not fully compliant with the Palermo Protocol, nor the American Convention on Human Rights (ACHR). In 2016, the IACtHR ruled in this case that Brazil had violated the right not to be subjected to slavery, forced labour and human trafficking (Articles 6(1) and 6(2) of the ACHR), among several other rights. The Court further ruled that the Brazilian government had to investigate the case, pay reparations to victims and stop applying the statute of limitations to cases that fell under the definition of slavery in international law. The decision was referred to in the context of two significant changes in anti-trafficking efforts. With respect to the duty to prosecute, following the IACtHR judgment, the Brazilian Government created a task force of prosecutors to identify and investigate situations of trafficking. With respect to the non-pecuniary measures ordered by the Court, an amendment to the Constitution was introduced in April 2017 to establish that the submission of a person to a condition analogous to slavery constitutes an imprescriptible crime. Although the owners of the cattle ranch filed a motion to dismiss in the Federal Court for the First Region, arguing that the statute of limitations had expired, in 2018 the Federal Court ruled that the statute of limitations did not apply, upholding the 2016 ruling by the IACtHR.

However, while important, the case of Fazenda Brasil Verde cannot be directly or conclusively linked with any substantive legislative anti-trafficking development in Brazil. Indeed, Law n. 13.344 (2016) was enacted in the same month as the IACtHR’s decision, and only gave the judgment a ‘symbolic weight’. There has also been very limited engagement of UN Treaty Bodies with respect to anti-trafficking efforts in Brazil. A rare instance has been the 2015 Concluding Observations on the Combined Second to Fourth Periodic Reports of Brazil by the Committee on the Rights of the Child (CRC). The CRC affirmed that it was ‘deeply concerned about the trafficking in children, particularly girls, for the purposes of sexual exploitation and forced labour’ and that it was ‘particularly concerned about the high vulnerability of indigenous children to trafficking for the purposes of domestic labour, slave labour and sexual exploitation’.⁷⁰ Building on a recommendation issued by the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences,⁷¹ the CRC recommended that the State party ‘amend its Penal Code with a view to criminalizing all forms of trafficking, including for the purpose of economic exploitation’, and that it ‘[e]stablish specialized shelters with adequate human, technical and financial resources’.⁷² Yet, it appears that the determinants that influenced the 2016 legislative process pre-dated the result in the case of Fazenda Brasil Verde, and were not directly related to the recommendations of UN Treaty Bodies – in contrast with the impact the IACtHR had on anti-modern slavery efforts in Brazil through the case of José Pereira, which was identified as a key determinant by several in-country expert interviewees. The Brazilian case study highlights how the relevance and effectiveness (level of influence) of a determinant can vary across the range of anti-trafficking efforts, including in distinct areas of anti-trafficking law and policy. Regional judicial and quasi-judicial decisions have been significant in Brazil in influencing actions against trafficking for the purpose of forced labour, arguably compensating for a lack of interest and engagement with the phenomenon on the part of law-makers and domestic courts, but less significant in actions against other forms of trafficking (although some changes achieved through decisions on forced labour have had an impact across all types of exploitation, including the establishment of a task force of specialised prosecutors).

15.3.3 Republic of Cyprus

The Republic of Cyprus (RoC) enacted anti-trafficking legislation criminalising all major trafficking offences in 2014 through Law 60(I)/2014,⁷³ which transposes European Council Directives 2011/36/EU and 2004/81/EC. The 2014 legislation includes provisions on victim protection and the establishment of a national co-ordinator for anti-trafficking efforts and a multidisciplinary co-ordination group to provide more holistic insights into the State’s and civil society’s anti-trafficking initiatives and co-operation. Law 60(I)/2014 was amended in 2019,⁷⁴ to increase the maximum sentences for the crime of trafficking in persons. According to interviewees in the RoC, it was international pressure, including in the form of regional courts’ case law (ECtHR), that led to the 2014 legislative changes. Increasingly, they also argued, international standards are being used to draw attention to and demand better implementation of the law.

In Rantsev v Cyprus and Russia,⁷⁵ in assessing Cyprus’ positive obligation to put in place an appropriate legislative and administrative framework, the ECtHR noted the applicant’s complaint as to the inadequacy of Cypriot trafficking legislation but did not consider that the circumstances of the case gave rise to any concern in this regard. According to the Court, Cyprus’ domestic anti-trafficking legislation reflected the provisions of the Palermo Protocol, prohibited trafficking and sexual exploitation, with consent providing no defence to the offence, and provided for a duty to protect trafficked persons, inter alia, through the appointment of a guardian.⁷⁶ The Court, however, noted, ‘as regards the general legal and administrative framework and the adequacy of Cypriot immigration policy, a number of weaknesses’,⁷⁷ finding that ‘the regime of artiste visas in Cyprus did not afford to Ms Rantseva practical and effective protection against trafficking and exploitation’.⁷⁸ The ECtHR’s reference to ‘artiste visas’ relates to the existence at the time of a visa system that allowed women to come to the country and work as dancers in cabarets – although it was widely acknowledged that many of these women were forced into prostitution. Rantsev, which was specifically concerned with trafficking for sexual exploitation purposes, has not only sensitised the RoC authorities to this type of trafficking and its victims (almost always women),⁷⁹ but also international organisations and local NGOs are more likely to place emphasis on this issue because of the RoC’s history with it.

The ECtHR’s finding was instrumental in abolishing the artiste visa. When the law changed, cabarets stopped being financially viable and most of them closed, which provides an example of how one anti-trafficking determinant (international standards) contributed to another (economic conditions) in a way that had a positive impact on anti-trafficking efforts. The standards communicated to the RoC, including in the form of a decision of the ECtHR, pressured the RoC to change the existing legislative framework and to undertake more consistent and genuine efforts to address human trafficking. The impact of international pressure – which also continued to be exerted in the form of international reporting from the United States Department of State, GRETA and UN Treaty Bodies⁸⁰ – on the enactment and monitoring of anti-trafficking legislation was acknowledged in interviews by key stakeholders working for the government. Yet this only appears to have had a superficial or transient effect: the decrease in sexual exploitation in clubs and cabarets has been followed by an increase in prostitution and sexual exploitation in private houses and flats.⁸¹

While there are no individual complaints before UN Treaty Bodies with respect to the RoC and trafficking, the 2017 Law on Societies and Institutions,⁸² regulating, inter alia, the operations of civil society organisations, was subject to scrutiny through UN Special Procedures. In March 2021, several mandates, including the mandate of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, addressed with concern the information received on the deteriorating environment for civil society organisations in Cyprus in the context of a 2020 amendment to the Law on Associations and Foundations and Other Related Issues. In particular, the letter was concerned with the alleged deregistration of Action for Support, Equality and Antiracism (KISA) from the Register of Associations and Foundations on 14 December 2020.⁸³ KISA is an NGO that, inter alia, provides support to migrants, asylum seekers and trafficked persons. In addressing the government of Cyprus, the Special Rapporteurs drew attention to the Palermo Protocol, ratified by the RoC in 2003, which obliges State Parties to refrain from acts which would defeat or undermine the Protocol’s objectives and purposes, including to prevent and combat trafficking in persons, to ensure assistance to trafficked persons and to provide effective remedies.

The Cypriot case study highlights the significant influence of regional judicial decisions in improving anti-trafficking efforts. Yet it also highlights that without a meaningful and holistic follow-up and without political will among State actors, the change(s) derived from such judicial decisions might be formalistic or superficial changes that conceal a reality of continued exploitation and weak responses in practice.

15.3.4 United Kingdom

Over the last decade, the United Kingdom’s anti-trafficking response has undergone considerable development and progression. Dedicated statutes have been enacted: the Modern Slavery Act 2015 (‘MSA 2015’)⁸⁴ in England and Wales, the Human Trafficking and Exploitation (Scotland) Act 2015⁸⁵ and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.⁸⁶ These statutes have, inter alia, created the role of the Independent Anti-Slavery Commissioner⁸⁷ and introduced new provisions designed to tackle labour exploitation in supply chains,⁸⁸ to place the principle of non-prosecution of trafficked persons on a statutory footing⁸⁹ and to better support child victims through the appointment of Independent Child Trafficking Guardians.⁹⁰ These measures are supported by statutory and non-statutory guidance.⁹¹ Central and devolved governments have also produced modern slavery strategies⁹² and published annual reports.⁹³

The ratification of international and regional legal frameworks, combined with the sustained efforts of civil society organisations and survivor networks and the role of regional and domestic courts in holding the government to account, have placed significant pressure on the United Kingdom’s government to develop its anti-trafficking domestic law and policy. The adoption of the National Referral Mechanism (NRM) in 2009, for example, was a result of the obligations flowing from the ECAT. The ECAT was also instrumental in the ECtHR’s analysis in the case of CN v United Kingdom,⁹⁴ where the core of the claim was whether the absence, at the time of the events, of a specific prohibition on servitude and forced labour was at the basis of the failure to properly investigate the applicant’s complaints. Indeed, although domestic authorities did investigate the applicant’s complaints, it was submitted that the investigation was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the European Convention on Human Rights (ECHR).⁹⁵ The ECtHR found, similar to Siliadin v France,⁹⁶ that the offences existing at the time of the events (trafficking, false imprisonment, kidnapping, grievous bodily harm, assault, battery, blackmail and harassment) were ‘inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention’.⁹⁷ In other words, according to the Court, ‘the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention’.⁹⁸ Although section 71 of the Coroners and Justice Act 2009 was enacted on 6 April 2010,⁹⁹ hence before the decision of the ECtHR in 2012, the 2013 Draft Modern Slavery Bill ECHR Memorandum confirms that the ‘offence in section 71 was enacted to addresses the criticisms of the United Kingdom in the [ECtHR’s] CN v UK’.¹⁰⁰ This is a situation where the filing of the case, highlighting deficiency in the law and policy, was enough to engage positive change.

Section 71 of the Coroners and Justice Act 2009 is not the only development in anti-trafficking efforts heavily influenced by decisions (and processes) of courts, tribunals or non-judicial bodies in the United Kingdom. Lawyers and the courts, in applying regional legal frameworks to enforce victim’s rights enshrined in ECAT, ultimately compelled government action in several other instances. Domestic courts have also played an important role in shaping law and policy. The following are non-exhaustive examples of significant case law: Atamewan v Secretary of State for the Home Department led to amended guidance ensuring the proper identification of historic victims of trafficking;¹⁰¹ L v Children’s Commissioner for England resulted in new Crown Prosecution Service guidance on the non-punishment of victims provisions in ECAT and the EU Directive;¹⁰² Hounga v Allen enabled some employment law rights to be applicable to irregular migrants insofar as the Supreme Court held that the doctrine of illegality arising from the employment of an ‘illegal migrant’ did not defeat a claim of employment discrimination brought by the same trafficked migrant worker;¹⁰³ in Benkharbouche and Janah the Supreme Court found the application of State immunity to employment claims brought by members of embassy staff in the United Kingdom to be incompatible with Article 6 of the ECHR, and led to the disapplication of those provisions to claims founded in EU law;¹⁰⁴ in PK (Ghana) v Secretary of State for the Home Department, the Court declared the government’s policy guidance relating to the grant of discretionary leave for victims of trafficking to be unlawful for failure to give effect to the objectives of Article 14(1)(a) of the ECAT, and emphasised that new guidance should make clear that a renewal residence permit should be issued to a trafficked person where their stay is necessary, through a test that is simply one of necessity – meaning that there is no additional requirement for the individual to show compelling circumstances;¹⁰⁵ in K and AM v Secretary of State for the Home Department the Court found the reduction of 42 per cent in subsistence rates for trafficked persons to be unlawful, and an employment contract change which took effect on 1 March 2018 was quashed;¹⁰⁶ and the case of NN v Secretary of State for the Home Department resulted in the introduction of a new process and guidance to assess the support needs of survivors beyond the previous NRM exit timescales.¹⁰⁷

As in the case of the RoC, while there are no individual complaints before UN Treaty Bodies, the UN Special Procedures have engaged with the UK Government on a number of occasions with respect to anti-trafficking efforts.¹⁰⁸ In May 2021, for example, the Special Rapporteurs on Contemporary Forms of Slavery, on Human Rights of Migrants and on Trafficking in Persons addressed concerns around changes to the overseas domestic worker visa and the Immigration Act.¹⁰⁹ Under the amended Immigration Rules, all migrant domestic workers were granted the option to change employer, but only for the remaining term of their six-month visa, which was non-renewable. Migrant domestic workers found to be trafficked were granted the possibility of applying for limited leave to remain in the United Kingdom for up to two years, with permission to work as domestic workers. In its response to the letter, the government acknowledged that ‘the UK gives careful considerations to all recommendations by human rights bodies’ and that, on the basis of such recommendations, ‘officials in the Home Office are in the process of developing proposals to reform the [tied visa] route from next year’.¹¹⁰

UN Special Procedures also engaged in March 2021 with the alleged role of Omegle, a live video-chat website based in the United States, in facilitating self-generated and live video-streamed sexual activities and material online that depicts or otherwise represents children appearing to engage in sexually explicit conduct.¹¹¹ In June 2021, the government provided its response, mentioning the intention ‘to introduce legislation on tackling online harms, including child sexual abuse’ and the publication of draft legislation in May 2021 (currently under parliamentary discussion).¹¹²

It is also worth mentioning that in January 2021 several mandates issued a letter to, inter alia, the UK Government with respect to the situation of the Al-Hol and Roj camps located in north-east Syria.¹¹³ The letter called on States to be particularly mindful of ‘the potential for coercion, co-opting, grooming, trafficking, enslavement and sexual exploitation when examining [womens’ and girls’] agency, or lack thereof’ in the context of their association with terrorist groups. The letter further emphasised the positive obligation on States to identify trafficked persons, as ‘a failure to identify a trafficked person correctly is likely to result in a further denial of that person’s right’. Although the government only partially agreed with the assertions made by the Special Rapporteurs, its response provided justifications of existing practices and policies that allow for a better understanding of, and arguably provide for better counter-argumentation against, such practices and policies. The engagement by the government with these assertions also reflects the weight given to the same by the government and their potential for influencing government discussions.

The UK case study provides, amongst the four case studies presented in this chapter, the most complex and comprehensive picture of how judicial, quasi-judicial and specialised non-judicial bodies influence anti-trafficking efforts, alone or in conjunction with one another. Decisions of judicial bodies tend to result in tangible changes in anti-trafficking efforts while the engagement of specialised non-judicial bodies has been instrumental in opening and fostering dialogue with State actors on activities or developments – in policy and in law – considered at risk, or as producing risks, of trafficking and exploitation.

15.4 Conclusion

In all four case studies, decisions of judicial bodies – either domestic or regional – have played a significant role in advancing anti-trafficking efforts and protecting trafficked persons’ rights. The jurisprudence of regional human rights courts has influenced both government actions and domestic courts’ interpretation of anti-trafficking law, as well as human rights law provisions relevant to anti-trafficking efforts. They have resulted in the introduction of new measures, the withdrawal of existing measures and more human rights-conformant interpretations of existing legislation. Quasi-judicial human rights bodies, including the UN Treaty Bodies, are not yet consistently engaged in human trafficking cases and – in their non-judicial role, do not consistently engage with anti-trafficking concerns during periodic reviews. Yet the potential of their impact on the improvement of anti-trafficking efforts should not be ignored. Indeed, quasi-judicial bodies can be viewed as contributors to international lawmaking – influencing the interpretation, clarification and refinement of State duties and responsibilities.¹¹⁴ While courts and quasi-judicial human rights bodies tend, by their very nature, to be reactive in nature, and the burden of initiating proceedings remains with individuals whose rights have been violated, specialised non-judicial bodies, including UN Special Procedures and Treaty Bodies in their reporting function, are, and can be, more proactive in nature. The engagement of the UN Special Rapporteurs, both in terms of country visits and thematic reports as well as through letters, has increased sharply in recent years. While responses from governments to communications of Special Rapporteurs might be circumstantial and may be labelled ‘empty promises’, our research has shown that the engagement that governments need to show – and for which they could be held accountable, at least in terms of international reputation – is a meaningful element in the development of anti-trafficking efforts.¹¹⁵

The analysis of decisions and observations in different contexts has shown the inter-dependence of judicial, quasi-judicial and specialised non-judicial bodies, which rely on each other – insofar as interpretation and standards are concerned – to safeguard the rights of trafficked persons and steer governments to comply with their international, regional and domestic obligations. It has also shown that the variety in the type of external pressure applied – for example, binding judgments and ‘soft’ pressure – can be used strategically to promote change and to ensure that change is sustainable. Because determinants of anti-trafficking efforts, understood as the factors shaping government responses, do not work in isolation, but rather are part of a broader process, it would be wrong to assume that decisions and observations of judicial, quasi-judicial and specialised non-judicial bodies can in isolation yield the improved political will and capacity in national governments to address trafficking in persons. Yet, as demonstrated by the cases of Argentina, Brazil, the RoC and the United Kingdom, they are external points of pressure which can contribute to positive change.

16 The Growing Importance of Human Rights Treaty Bodies in Environmental Dispute Resolution

Alexander Solntsev

16.1 Introduction

This chapter evaluates the strengths and weaknesses of UN human rights treaty bodies (HRTB) in ensuring compliance with States’ international environmental legal obligations and in resolving environmental disputes. The chapter begins with a discussion of the evolution of the “environmentalization” of international human rights law and goes on to analyze the standard functions of the HRTB as human rights treaty compliance mechanisms. Against this backdrop, the chapter considers HRTBs’ contribution to ensuring compliance with States’ climate-related human rights obligations, as a new trend in the greening of international human rights law and an area in which HRTB are now at the forefront of international compliance procedures. The chapter analyses HRTBs’ concluding observations, general comments, and statements and specific cases dealt with by the Human Rights Committee¹ and the Committee on the Rights of the Child.² HRTBs’ contribution to helping bring about States’ compliance with international environmental legal obligations is then compared with other means of dispute resolution and compliance procedures, primarily non-compliance procedures under Multilateral Environmental Agreement (MEAs), demonstrating the positive aspects of the HRTB (the presence of a follow-up procedure, the coverage of a large number of States parties, the absence of the need to approve the decision by the Conference of the Parties), and the negative ones (the lack of legal force for the decisions).

16.2 The Greening of Human Rights

Looking at the HRTB is important for a number of reasons. These include the absence of an International Environmental Court.³ International courts’ practice in environmental disputes is still in a state of evolution (for example, the unreasonably low level of compensation for environmental damage in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua));⁴ the procedural limitations of courts (for example, individuals cannot file a claim with the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS)); the lack of effective enforcement mechanisms (Japan did not comply with the ICJ’s decision on Whaling in the Antarctic⁵ and subsequently withdrew from the International Convention for the Regulation of Whaling);⁶ and the limited practice of regional human rights courts (including in Asia, where more than 4.5 billion people do not have a regional court or human rights commission that would accept complaints from individuals or NGOs).⁷ It should be clarified that, in general, regional human rights courts (the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights) contribute to the resolution of environmental disputes. For the purposes of this chapter, I mention their practices (especially since there are currently several cases pending before the European Court of Human Rights (ECtHR)), but I do not analyze them in detail, as they do not relate to HRTB and require separate in-depth scientific research. For all these reasons, it may be helpful to evaluate the extent to which HRTB can help address compliance with international environmental law. Human rights treaty bodies offer certain mechanisms for monitoring the implementation of the main international human rights treaties, which are widely ratified.⁸

Increasingly, human rights are linked to environmental protection and the issue of combating climate change.⁹ Historically, this evolved in the following way. At the 1992 Conference on Environment and Development in Rio de Janeiro,¹⁰ the world community recognized the problems of environmental harm. The following year, the Vienna Conference on Human Rights was held, following which the UN General Assembly established the Office of the UN High Commissioner for Human Rights. However, to the great regret of environmental lawyers, the Vienna Declaration and Plan of Action¹¹ had only one paragraph devoted to the protection of human rights in the context of environmental protection, and only in the narrow sense in relation to dumping of toxic and dangerous products and waste: “The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. The World Conference on Human Rights recognizes that illicit dumping of toxic and dangerous substances and waste potentially constitutes a serious threat to the human rights to life and health of everyone … .”¹²

In the almost thirty years since, a great deal has changed in this area, both at the universal and regional level of human rights protection. In recent years, a number of events have taken place in the field of environmental protection through the human rights system: two important HRC resolutions¹³ and a draft additional protocol to the European Convention on Human Rights (ECHR) on the right to a healthy environment¹⁴ were adopted, the 2018 Regional Agreement on Access to Information, Participation and Justice in Environmental Matters in Latin America and the Caribbean (the Escazú Agreement)¹⁵ was adopted and entered into force in 2021; the UN Committee on the Rights of the Child in June 2021 launched discussion on the preparation of the General Comment on Children’s Rights and the Environment with Special Focus on Climate Change;¹⁶ and in September 2019 the HRTBs issued a joint statement on human rights and climate change.¹⁷ And finally, for the first time in the history of the UN, the UN General Assembly in its Resolution 76/300 of 28 July 2022, recognized the human right to a clean, healthy, and sustainable environment.¹⁸ The General Assembly affirmed that the promotion of the human right to a clean, healthy, and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law. It also recognized that the exercise of human rights, including the rights to seek, receive, and impart information, to participate effectively in the conduct of government and public affairs, and to an effective remedy, is vital to the protection of a clean, healthy, and sustainable environment.

On the one hand, international human rights law provides a limited approach to protecting the environment. By and large, the purpose of this branch of international law is to protect a particular person (or group of persons), whereas in international environmental law the goal is to protect the environment as a common good.¹⁹ On the other hand, the cumulative effect in synergy with other international mechanisms may help to protect the environment as a whole. The environmental developments in international human rights law addressed earlier will greatly enhance this cumulative effect. These developments will mean that HRTBs play an increasingly important role in helping bring about compliance with international environmental law.

16.3 Human Rights Treaty Bodies as Compliance Bodies

Human rights treaty bodies, as examples of compliance procedures, are an opportunity to issue policy-relevant recommendations addressing specifically the shortcomings of governments’ environmental or climate policies from a human rights perspective.

It is important to keep in mind that human rights law at the international level has a wide range of protection and enforcement instruments that can be used to protect environmental human rights: HRTB, Universal Periodic Reports (UPR), Human Rights Council, Special Procedures. In this chapter, I will study the role of HRTB. When I talk about HRTB as compliance mechanisms, I should think systematically and understand that there are various forms of their activity.

Human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. As of now, ten treaty bodies have been established: the Committee on the Elimination of Racial Discrimination (CERD);²⁰ the Committee on Economic, Social and Cultural Rights (CESCR);²¹ the Human Rights Committee (CCPR);²² the Committee on the Elimination of Discrimination against Women (CEDAW);²³ the Committee against Torture (CAT);²⁴ the Committee on the Rights of the Child (CRC);²⁵ the Committee on Migrant Workers (CMW);²⁶ the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT);²⁷ the Committee on the Rights of Persons with Disabilities (CRPD);²⁸ and the Committee on Enforced Disappearances (CED).²⁹

It is important to emphasize that the uniqueness lies in the fact that not a single international treaty under which HRTB were established contains provisions aimed at protecting the environment. Therefore, all environmental issues are derived through a broad interpretation of the texts of international treaties. The only exception is the 1980 Convention on the Rights of the Child, where Article 24(2(c)) states that:

States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: … To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution … .³⁰

The treaty bodies perform a number of functions aimed at monitoring how the treaties are being implemented by their State parties. All treaty bodies, with the exception of the Subcommittee on Prevention of Torture, are mandated to receive and consider periodic reports submitted by State parties detailing how they are applying the treaty provisions nationally. The examination of a report culminates in the adoption of “concluding observations” intended to give the reporting State practical advice and encouragement on further steps to implement the rights contained in the treaty. In its concluding observations, a treaty body will acknowledge the positive steps taken by the State, but also identify areas of concern, where more needs to be done to give full effect to the treaty’s provisions. The treaty bodies seek to make their recommendations as concrete and practicable as possible. In addition, each of the treaty bodies publishes its interpretation of the provisions of its respective human rights treaty in the form of “general comments” or “general recommendations.” These cover a wide range of subjects, from the comprehensive interpretation of substantive provisions (the right to water or the right to adequate food), to general guidance on the information that should be submitted in State reports relating to specific articles of the treaties. Most treaty bodies may consider complaints or communications from individuals (or group of individuals, or entity) alleging that their rights have been violated by a State party, provided that State has opted into this procedure. Human rights treaty bodies may also consider interstate complaints and their views or decisions. Although these procedures are “quasi-judicial,” the decisions cannot be enforced directly by the committees. In many cases, however, State parties have implemented the committees’ recommendations and granted a remedy to the complainants. Some HRTB may also conduct inquiries if they receive reliable information containing well-founded indications of serious, grave, or systematic violations of the conventions in a State party.³¹

Moreover, if the State does not comply with the recommendations, it will be reminded of this as part of the follow-up. It is worth emphasizing separately that the follow-up procedure is extremely important for compliance in the field of international environmental law. Environmental disputes are predominantly of a continuing nature, and it is important to monitor the extent to which the measures taken by the State helped to correct the situation and establish the possibility of taking more precise appropriate measures to resolve the environmental dispute. Thus, follow-up makes it possible to resolve environmental disputes in a continuous process of dialogue. This is something that is often lacking in international courts and is also missing under MEA non-compliance procedures. All HRTB request State parties to provide information in their periodic reports on the implementation of the recommendations contained in previous concluding observations. It is important to note that all available sources of information (other HRTB, Special Procedures, the Universal Periodic Review, the United Nations system, regional human rights mechanisms, national human rights institutions (NHRIs), and NGOs) are considered for the follow-up assessment of a State party. It is a very open and transparent procedure. It should be noted that the details and timing of the follow-up procedure vary from committee to committee.³² Follow-up covers individual communications: (1) compliance (measures taken are satisfactory or largely satisfactory); (2) partial compliance (measures taken are partially satisfactory, but additional information or action is required); (3) non-compliance (reply received but measures taken are not satisfactory or do not implement the views or are irrelevant to the views); (4) no reply (no cooperation or no reply received). Moreover, as previously noted, the UN has a whole system of human rights bodies, and the implementation of concluding observations and HRTB opinions can also be called upon through the UPR procedure, which is an additional compliance control mechanism.

There are many examples of environmental issues under the national reports/concluding observations procedure. For example, CESCR recommended that Argentina

reconsider the large-scale exploitation of non-conventional fossil fuels through hydraulic fracturing in the Vaca Muerta region, in order to ensure compliance with its obligations under the Covenant, in the light of the Paris Agreement commitments. It also encourages the State party to promote alternative and renewable energy sources, reduce greenhouse gas emissions and set national targets with time-bound benchmarks.³³

Or in 2020 the Committee recommended Norway

intensify its efforts to achieve its nationally determined contribution under the Paris Agreement to reduce emissions by at least 50 per cent and towards 55 per cent compared to 1990 levels by 2030, and to promote alternative and renewable energy sources. It also recommends that the State party reconsider its decision to increase oil and natural gas exploitation and take its human rights obligations as a primary consideration in its natural resource exploitation and export policies.³⁴

For example, in its concluding observations, the Human Rights Committee recommended Cabo Verde

(a) strengthen its public policies and strategies aimed at mitigating the impact of natural disasters and climate change on the population and reducing the vulnerability of communities, including for those whose livelihood is dependent on climatic conditions, such as farmers; (b) improve the structural safety of houses and infrastructure; and (c) regularly update its contingency and relocation plans, in consultation with the communities concerned.³⁵

Quasi-judicial functions are manifested at the time of consideration of complaints (individual, collective, interstate). If earlier HRTB considered complaints in the format of an individual/group of individuals against the State, recently there has been an increase in interstate complaints. In the fifty-year history of the treaty bodies, only three interstate or State-to-State complaints have been registered (admissibility accepted on its merits) by the treaty bodies, all of them in 2018 by the CERD.³⁶ As a comparison, interstate complaints under MEA non-compliance procedures are also rare. But it is important to understand that this is generally possible in conditions where the jurisdiction of international courts is very limited.

There were several decisions on environmental complaints in HRTB. Unfortunately, few studies are available on the analysis of these decisions.³⁷ For example, in 2013, the UN Independent Expert on Human Rights and the Environment, John Knox, prepared reports on the protection of environmental rights in five HRTB: CESCR, HRC, CERD, CEDAW, and CRC.³⁸ This chapter will highlight four recent HRTB decisions: three on climate (very interesting legal provisions were presented that might be cited by other international courts in the future³⁹), and one on pesticides – a positive outcome with a wide range of measures.

The Human Rights Committee in 2019 issued an opinion in the case of the use of agrochemicals and pesticides (Portillo Cáceres et al. v Paraguay, 2019).⁴⁰ A farming family in Paraguay petitioned the HRC claiming the mass use of agrotoxins by nearby large agrobusinesses had poisoned many local residents and led to the death of their relative, Ruben Portillo Cáceres. The HRC found violations of the family members’ rights to life; to privacy, family, and home; and to an effective remedy, noting that the State had failed to adequately enforce environmental regulations and did not properly redress the resulting harms. In connection with this decision, important strategic questions arise in the context of comparison with other international legal compliance procedures: (1) in what other international body can the collective environmental rights of people be protected; (2) what other international body can deal with banned pesticides (non-compliance procedures under Article 17 of the Stockholm Convention concerned only interstate cases); and (3) in what other international body can such an effective remedy be obtained systemically?⁴¹

It should also be emphasized here that HRTB are more independent than non-compliance procedures under MEAs, since there is no need to wait for the final approval of all decisions by the Meetings of State Parties of the human rights treaty (while decisions adopted by the non-compliance committees under some MEAs should be approved within the CoP/MoP, for example under the Aarhus Convention).⁴²

It should be noted that sometimes HRTB are at the forefront of developing environmental human rights among various international courts and compliance procedures. It may be noted that the CESCR recognized the right to water (under the International Covenant on Economic, Social and Cultural Rights) in 2002 (General Comment No 15).⁴³ And since that time, the Committee has had the opportunity to ask States about the protection of the right to water in the framework of periodic reports. Only in 2010, after eight years, did the United Nations General Assembly (UNGA) vote to adopt Resolution A/64/292, formally recognizing “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” As human rights have expanded in scope and influence, the UNGA’s 2010 Resolution has proclaimed international political recognition of this distinct right.

HRTB have become active in the field of combating climate change. They request relevant information from States when considering periodic reports (for example, information related to what measures States are taking to protect rights affected by climate change), and if they are not satisfied with the information provided, they make relevant concluding observations (some examples have already been mentioned). In addition, HRTB approve special statements: (1) In October 2018, the CESCR adopted a statement on “Climate Change and the International Covenant on Economic, Social and Cultural Rights”;⁴⁴ (2) In September 2019, the five HRTB (CEDAW, CESCR, CMW, CRC, and CRPD) issued a joint statement on human rights and climate change.⁴⁵

The field of action against climate change is also expanded by interpreting the legal content of human rights in general comments. Regarding the last point, it should be noted that four HRTB have already done this:

• the CESCR: General Comment No 15 (2002) on the Right to Water (Articles 11 and 12 of the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR, Covenant));⁴⁶

• the CRC: General Comment No 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Article 24 of the Covenant),⁴⁷ and in June 2021 work was launched on a General Comment on Children’s Rights and the Environment with Special Focus on Climate Change;⁴⁸

• CEDAW: General Recommendation No 37 (2018) on Gender-related Dimensions of Disaster Risk Reduction in the Context of Climate Change;⁴⁹

• HRC: General Comment No 36 (2018) on Article 6 of the ICCPR on the right to life.⁵⁰

In this way, the treaty bodies have paved the way for concrete decisions on complaints of human rights violations due to State action/omission. Particularly relevant is the HRC General Comment No 36 on Article 6 of the ICCPR on the right to life. Attention should be paid to paragraph 62 of the document (“Relationship of Article 6 with Other Articles of the Covenant and Other Legal Regimes”), which directly links “obligations to respect and ensure the right to life” and “measures taken by States parties to preserve the environment and protect it against climate change.”⁵¹

As a comparison with other international compliance procedures, it should be noted that the creation of such documents as general comments is very effective and useful, since it allows the generalization of extensive practice and the acceptance of a legitimate document with official interpretation. Such documents could be accepted as part of the non-compliance procedure under MEAs.

16.4 Climate Complaints in HRTB

Recently, the number of “climate” claims around the world has been growing and HRTB are no exception. It is important to note three very high-profile cases in this section. The ECtHR is also considering complaints, but has not yet ruled on climate complaints,⁵² the Inter-American Commission on Human Rights has rejected a climate case,⁵³ but the Inter-American Court on Human Rights (IACtHR) mentions this problem in their Advisory Opinion OC-23/17.⁵⁴ On 12 December 2022, the ITLOS received a request from the Commission of Small Island States on Climate Change and International Law to render an advisory opinion.⁵⁵ Therefore, legal judgments and arguments are extremely valuable.

Important to note is the world’s first international decision on climate refugees (Ioane Teitiota v New Zealand, 2020) by the Human Rights Committee.⁵⁶ The UN Human Rights Committee considered the “climate” claim and, refusing a specific applicant, generally recognized that, based on the non-refoulement principles and subject to a number of criteria, “climate” refugees have the right not to be sent to a country where climate change leads to such disastrous consequences that a violation of the right to life can be claimed. In this case, in the opinion of the Committee, there was no life-threatening situation for the Teitiota; also because the relevant protective measures had already been taken in the Republic of Kiribati (2007 National Adaptation Programme of Action under the United Nations Framework Convention on Climate Change (UNFCCC)). It turns out that the fight against climate change is a State problem and carries a threat to the entire population. However, it is extremely difficult to prove an individual threat, so most of the “climate” claims are of a collective nature. However, the HRC did not rule out that such a situation might arise in the future. The case of Ioane Teitiota v New Zealand has become a milestone in the development of the practice of the HRC. Thus, a new interpretation of the “real risk of irreparable harm” was given; the connection between civil rights and economic and social rights was shown within the framework of a broad interpretation of the right to life; and the “climate” component of the right to life was demonstrated in practice. Now new standards have been set that may, in the future, contribute to the favorable outcome of other climate change refugee claims. Moreover, the Committee emphasized the need for the support of countries suffering from the effects of climate change by the international community. Thus, it was recorded that the obligations for cooperation in the field of counteracting the negative effects of climate change are erga omnes. If decisive action is not taken at both the international and national levels, entire States may disappear under water. In this case, the threat to life will become obvious, and the host States will no longer be able to deport those who request refugee status.⁵⁷

An important difference between HRTB and many non-compliance procedures is the fact that the decisions are not always adopted by consensus, and it is possible to find separate opinions. In Ioane Teitiota v New Zealand, two experts were against (Duncan Laki Muhumuza and Vasilka Sancin) and added their individual opinions by Committee members.

A second case concerns Children’s Rights and Climate Change at the UN CRC. I note the Communication to the CRC concerning climate change (16 children (including G Thunberg) v Argentina, Brazil, France, Germany, Turkey, 2019). On 11 October 2021, the CRC published its decisions on the admissibility of complaints brought against five States – Argentina, Brazil, France, Germany, and Turkey – by the 16 child complainants under the Optional Protocol to the Convention on the Rights of the Child on a Complaints Procedure (OPIC). The Committee ultimately declared the complaints inadmissible due to non-exhaustion of domestic remedies. However, in doing so, the Committee found that a State party can be held responsible for the negative impact of its greenhouse gas emissions on the rights of children both within and outside its territory. With regard to extraterritorial jurisdiction, the CRC endorsed the abovementioned IACtHR Advisory Opinion OC-23/17, which clarified in paragraph 101 the scope of extraterritorial jurisdiction concerning environmental protection. As stated by I Gubbay and C Wenzler, to establish extraterritorial jurisdiction, the CRC had to consider (i) the interpretation of “control,” and (ii) the significance of directness and foreseeability.⁵⁸ Under the effective control test, the State in whose territory or under whose jurisdiction the activities are carried out has effective control over them, as well as the ability to prevent transboundary harm. Potential victims of the adverse effects of a State’s actions are under the jurisdiction of that State regarding its potential responsibility for failing to avoid transboundary damage. Further, under the causal nexus test, when a State’s act or omission is sufficiently connected to the violation, the person suffering the violation is considered to be within the State’s jurisdiction. Following the IACtHR’s reasoning, then, the CRC found that every State must address climate harm outside its territory and is liable for the negative impact of its emissions on the rights of children located both within and outside its territory.⁵⁹

The decision significantly advances international human rights law understanding of the scope of State obligations in the context of climate change – both in terms of the content of such duties and their jurisdictional application. Although greeted with understandable dismay by some climate activists, the decision is a convincingly reasoned rejection – and one that leaves the door firmly open to future child rights climate justice complaints, while according appropriate respect to domestic processes.⁶⁰ In June 2021, the CRC decided to draft a General Comment on children’s rights and the environment with a particular focus on climate change, thus signaling the potential of human rights litigation to contribute to normative development beyond a specific case.

The third climate case, Daniel Billy and others v Australia (Torres Strait Islanders Petition, 2022)⁶¹ is the latest in HRTB practice. The Communication was brought by eight indigenous residents of the Torres Strait Islands and some of their children to the HRC. This is so far the only decision where an international human rights body has found that a State’s failure to protect people from the effects of climate change can amount to a violation of international human rights law.

In the decision, the HRC has found that Australia’s failure to adequately protect indigenous Torres Islanders against the adverse effects of climate change violated their rights to enjoy their culture (Article 27 of the Covenant) and be free from arbitrary interferences with their private life, family, and home (Article 17 of the Covenant). Australia failed to adapt to climate change by, inter alia, upgrading seawalls on the islands and reducing greenhouse gas emissions.

However, in this case, it cannot be argued that Australia has been inactive in the fight against climate change. The HRC indicated that despite Australia’s series of actions, such as the construction of new seawalls on the four islands that are expected to be completed by 2023, additional timely and appropriate measures were required to avert a risk to the Islanders’ lives, since without robust national and international efforts, the effects of climate change may expose individuals to a violation of their right to life under the Covenant. This is an important conclusion-warning of the Committee for States that believe that it is possible to limit themselves to minimal actions in order to combat climate change.

As remedies, the HRC asked Australia to compensate the Indigenous Islanders for the harm suffered, engage in meaningful consultations with their communities to assess their needs, and take measures to continue to secure the communities’ safe existence on their respective islands. This is one of the interesting points of the decision: how to calculate and make “adequate compensation, to the authors for the harm that they have suffered?”⁶² How that harm will be calculated is yet unknown, not only in this decision, but in general in international climate law. The Committee left this up to Australia who has to report to the Committee on the implementation within 180 days, so there will be opportunity to analyze the further actions of the Committee at a later date.

It may also be noted that in this decision, as in the previous Ioane Teitiota v New Zealand the Committee ultimately dismissed the plaintiffs’ claim of a violation of their right to a decent life, finding that they “did not indicate that they have experienced or are currently experiencing adverse health outcomes or a real and reasonably foreseeable risk of being physically threatened” or extreme danger likely to threaten their right to life, including their right to a life in dignity and that strong national and international efforts⁶³ can prevent harm that would constitute a violation of Article 6 of the Covenant. Although it was a loss for the plaintiffs in this case, it has become a roadmap for future climate cases.

Moreover, as per Voigt, “there is, however, one major shortcoming of the decision: The Committee remained silent on the need for timely and adequate mitigation measures as the ‘backside of the coin’ to fulfill its positive obligation towards the applicants. This is a lost opportunity.”⁶⁴

Overall, the HRC has created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable to the negative impact of climate change on the enjoyment of their human rights.

Thus, based on the method of legal forecasting, it can be said that the number of climate complaints to the HRC will grow in the near future, especially considering that 117 States of the world have recognized its jurisdiction to consider individual complaints.⁶⁵

16.5 Legitimacy and Citation of Decisions

All documents adopted by HRTB are soft law and are not legally binding. This has its pros and cons. However, the general comments and decisions of the HRTB are actively used in national legal systems.⁶⁶ Of course, not in all States and not in all cases, but this practice is quite common.

An important issue is that of the unification of common approaches among international courts, regional courts of human rights, and quasi-judicial bodies (mainly non-compliance procedures based on MEAs and HRTB) in terms of protecting environmental human rights. The analysis shows that HRTB in their environmental decisions repeatedly cited the decisions of the ECtHR, the African Commission on Human and Peoples’ Rights and the Inter-American Court of Human Rights. For example, in Ioane Teitiota v New Zealand, HRC noted “that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life”⁶⁷ and cited in support the practice of European, inter-American and African human rights systems.⁶⁸

In Portillo Cáceres, HRC stated that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely” (paragraph 3.7) and relying upon the practice of the ECHR.⁶⁹ Also, as in the previous case, in substantiating the fact that severe environmental degradation has given rise to findings of a violation of the right to life (paragraph 7.4), HRC referred to the relevant practice of regional human rights courts. Also in evidence is that “adverse consequences of … pollution are serious because of its intensity or duration and the physical or mental harm that it does, then the degradation of the environment may adversely affect the well-being of individuals and constitute violations of private and family life and the home” (paragraph 7.8). In this, the HRC referred to the practice of the ECHR.⁷⁰

Additionally, the ICJ has on occasion directly considered treaty body practice (Wall opinion in 2004, the Diallo case, the Belgium v Senegal (or Hissene Habre) case, Georgia v Russia, and the IFAD case).⁷¹ Moreover, the ICJ directly stated:

Since it was created, the Human Rights Committee has built up a considerable body of interpretative case law, in particular through its findings in response to the individual communications which may be submitted to it in respect of States parties to the first Optional Protocol, and in the form of its “General Comments.” Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled⁷².

The Inter-American Court of Human Rights, in its Advisory Opinion on Environmental Human Rights,⁷³ referred to CESCR documents, but not to decisions – only to general comments and concluding observations⁷⁴ – as well as to HRC decisions in the context of proving the existence of extraterritorial human rights obligations.⁷⁵

Based on the method of legal forecasting, one can fairly confidently assume that the ECHR will soon quote HRTB. The HRC and CRC are the first international bodies in the world to recognize jurisdiction and adjudicate climate claims (Ioane Teitiota v New Zealand and five CRC claims, respectively). As noted above, HRTB denied the plaintiffs, but the rulings contained extremely important legal positions that will be useful to the ECHR, where five cases are already pending.⁷⁶ And rather than reinventing the wheel, one can rely on these legal positions of HRTB and thereby confirm their legitimacy in resolving climate disputes.

16.6 Conclusion

In general, over the years of their existence, HRTB have established themselves as an important legitimate and effective link in the resolution of international environmental disputes and as compliance “guardians.” However, it should be underlined that HRTB do not actually ensure compliance with environmental obligations, but with human rights treaties, which are increasingly interpreted in the light of environmental obligations. What advantages do HRTB have in comparison with international courts? Human rights treaty bodies have developed a large regulatory framework for the consideration of environmental disputes (including special statements, general comments, and previous opinions). An analysis of decisions shows that HRTB has a wide range of remedies. It is important that the committees themselves monitor the execution of decisions based on the follow-up procedure and the request for information from States during the dialogue process when considering periodic reports; moreover, within the framework of the UPR procedure, the State may be asked about non-compliance with the decision. As quasi-judicial bodies under the UN system, HRTB are not divorced from general legal practice and refer to environmental decisions of other international courts (unlike, for example, the DSB WTO), IPCC documents, and international environmental conventions. Moreover, legal positions from their decisions are used and cited by both universal and regional human rights courts. The UN system, unlike regional human rights bodies, allows developing universal approaches to resolving environmental disputes, and a high level of ratification by States of international human rights treaties allows for the avoidance of jurisdictional restrictions (unlike, say, the Aarhus Committee or the Espoo Committee). Therefore, the world in the form of HRTB has universal legitimate mechanisms to protect the environment (and especially climate) through a link with human rights. All of this should contribute to an enhancement of the ability to protect the environment.