Appendix
SUMMARY OF PRESENTATIONS BY, AND EXCHANGE OF VIEWS WITH,
EXPERTS OF THE HUMAN RIGHTS COMMITTEE ACTING IN THEIR
INDIVIDUAL CAPACITY
1.
Mr. Rajsoomer Lallah noted that, while the International Covenant on Civil
and Political Rights did not cover all the provisions contained in the
Convention on the Elimination of All Forms of Discrimination against Women,
articles 2 and 3 of the Covenant dealt with equality and non-discrimination in
the enjoyment of the rights recognized in the Covenant, and article 26 dealt
with equality before the law and equal protection of the law. There were
currently 87 States parties to the first Optional Protocol.
2.
Mr. Lallah reviewed the two stages of the consideration of a communication,
namely the determination of admissibility and the procedure on the merits of a
case. In referring to specific provisions contained in the first Optional
Protocol, he pointed to their progressive development through the Committee’s
practice, including matters such as the exhaustion of domestic remedies, the
question of standing, interim measures and the follow-up to decisions taken on
the merits of a case. He discussed the written nature of the procedure and
admissible sources of information, the lack of any investigative power of the
Committee, and the treaty obligation of States parties to remedy violations,
notwithstanding the absence of mandatory power in the Committee’s views. He
reviewed selected cases that the Human Rights Committee had dealt with under
article 26, noting that the Committee had found that article 26 established a
basic right to equality before the law, which was not restricted to the rights
under the International Covenant on Civil and Political Rights. While conflicts
in adjudication between different procedures could be avoided through the
establishment of admissibility criteria, some overlapping might, however, not be
wholly undesirable.
3.
Ms. Cecilia Medina Quiroga and Mr. Fausto Pocar, speaking on the question
of justiciability, noted that the Committee on the Elimination of Discrimination
against Women could, under an optional protocol to the Convention on the
Elimination of All Forms of Discrimination against Women, build on the
jurisprudence already developed by the Human Rights Committee. They agreed
that, as the Convention itself was based on the principles of non-discrimination
and equality, all its other provisions could be linked back to these principles.
As the non-discrimination provision was recognized as justiciable and subject to
meaningful scrutiny by treaty bodies, they considered all the provisions of the
Convention to be justiciable. They agreed that some of the Convention’s
provisions, including the requirement that States parties take appropriate
measures, might lead to certain difficulties in assessing compliance. They
stressed that a decision on the justiciability of a provision should be left to
the Committee, taking into consideration a State party’s obligations to
implement its treaty obligations in good faith, and in a reasonable way. Both
experts strongly cautioned against any a priori classification of rights into
justiciable and non-justiciable.
4.
Furthermore, it was pointed out that no clear line could be drawn between
justiciable and non-justiciable provisions. As shown by the examples of a
number of articles in the International Covenant on Civil and Political Rights,
justiciability of a treaty provision was also a question of degree. A number of
the Covenant’s provisions required a State party not only to respect a right,
-124-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents