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The Human Rights Committee—Challenges and Prospects for Enhanced Effectiveness and Integration
Abstract
As one of the oldest and the most prominent of universal monitoring organs of quasi-judicial nature, the UN Human Rights Committee has greatly contributed to the development of the universal human rights regime. However, challenges remain. These relate particularly to a lack of implementation of the Committee’s decisions in national legal orders and to lack of efficiency in the work of the Committee. From a practitioner’s perspective, this article examines the Committee’s achievements and shortcomings with special regard to the reporting and individual complaint procedures. It considers the state of the Human Rights Treaty Body Review and analyses how the reforms undertaken in its context. The Committee’s cooperation with other human rights treaty bodies is also discussed and the advantages of closer cooperation are presented. The authors conclude that there is still a long way to go and against this background discuss perspectives of a world court of human rights.
... An example of specific conflicts between national laws, notably between Sharia law and Greek civil law in family matters as previously mentioned, could be observed in the case of Molla Sali. 16 In this case the Court found a dual violation: of Article 14 of the Convention and Article 1 of Protocol No. 1. It concluded that there was no objective or logical justification for differential treatment between the beneficiary of a will created in accordance with the Civil Code by a testator of non-Muslim and of Muslim faith. ...
... No treaty or instrument compelled anyone to submit to a minority protection regime against their wishes. 18 The double burden faced by minority women such as in Molla Sali raises questions over the appropriate legal approach to deal with intersectional cases and the increased obstacles minority women encounter when seeking 16 (2021), 'The Court's willingness to embrace freedom from religion arguments as opposed to freedom of religion arguments is revealing in the first place regarding a negative attitude to religion, or more specifically Islam. In combination with an argument that situates the harm from (Islamic) religion in its attitude toward women, this contributes to an image of Muslim women as helpless victims in need of liberation.' 18 resolution over various issues. ...
Women from ethnic, national, religious, and cultural minorities face distinct legal challenges in their struggle for gender equality. They are at constant risk of multiple discrimination as minority women, particularly with regard to their identity and religious rights. This is evident in matters of inheritance, wearing religious items in public, and issues related to sexual and domestic violence. International approaches to this problem are fragmented, with the ECtHR, UN HRC, and other international human rights bodies taking different approaches. This article will critically discuss the status of minority women’s rights in the jurisprudence of the ECtHR and will reflect on what the Court could learn from the practices of the UN HRC and other international human rights bodies.
... Despite critiques of expert members, some applaud the perception of the Committee, arguing it has "enjoyed an outstanding 'international reputation that imparts a great moral authority' for decades, which is a result of its composition, among other things (Nowak, 2005, 894-5)" (Jelić & Mührel 2022). I argue that treaty bodies can provide credibility, complementing non-governmental advocacy organizations. ...
Can individual participation in international legal institutions affect state behavior? Much of the existing literature believes that international law has a limited effect in the countries where it’s needed the most, especially in the absence of enforcement mechanisms. Focused on repressive regimes, this paper analyzes petitions (complaints) filed by victims of human rights abuse in United Nations human rights treaty bodies. As a form of naming and shaming, I theorize that violation decisions– in which a monitoring body confirms a treaty violation– may improve human rights when paired with civil society organizations that publicize the decisions. Leveraging a new dataset, I find that governments improve respect for the most severe abuses involving bodily harm immediately after violation decisions. In support of the theory, these short-lived effects are driven by petitions where civil society actors are listed as representation. This work improves our understanding of the role of non-state actors in global politics and compliance with international institutions. International organizations can, under certain conditions, provide information on non-compliance that sufficiently pressures governments to change domestic practices and decrease repression.
Este artículo examina el acceso a la justicia de las generaciones futuras indígenas en el contexto de la justicia climática ante el Comité de Derechos Humanos de las Naciones Unidas (CDH). Se centra en el caso Daniel Billy et al. vs. Australia (2022), donde se argumentó que el cambio climático, derivado de la inacción estatal, vulnera los derechos humanos de las comunidades indígenas australianas de las Islas Torres, afectando sus modos de vida y su supervivencia cultural. El análisis destaca las barreras procesales que enfrentan las generaciones futuras para ser reconocidas como sujetos de derechos, especialmente la falta de legitimidad procesal (ius standi). A través de este caso, el artículo subraya la importancia de integrar principios de equidad intergeneracional y justicia climática en el derecho internacional para proteger los derechos de las futuras generaciones. Concluye que el derecho a la vida, según el Pacto Internacional de Derechos Civiles y Políticos (PIDCP), debería interpretarse para incluir la protección de la vida futura, especialmente ante amenazas climáticas.
O Sistema Global de Direitos Humanos pode ser subdividido em dois ramos: Sistema Convencional e Sistema Extraconvencional. O presente artigo se ocupa do primeiro e tem por objetivo estudar os mecanismos de peticionamento individual, sobretudo o procedimento de Comunicações Individuais. Parte-se da hipótese central de que a variedade de tratados, regulamentos e Comitês de monitoramento existentes dentro do sistema podem representar em obstáculos na apresentação de queixas por vítimas de direitos humanos. À vista de que somente foram registrados 6 (seis) casos brasileiros, a importância desse estudo repousa na necessidade de desmistificar como funciona o acesso de vítimas ao Sistema Convencional de Direitos Humanos, a fim de ampliar seu conhecimento e sua utilização como uma alternativa viável à sociedade brasileira, todas as vezes o Estado se mostrar omisso em seu dever de proteger os direitos humanos. Nesse escopo, utilizou-se o método de trabalho dedutivo e qualitativo, utilizando-se como metodologia de pesquisa a análise bibliográfica e documental, examinando especialmente a jurisprudência dos Comitês de monitoramento, documentos oficiais e publicações da Organização das Nações Unidas. O estudo parte da exposição do Sistema Convencional de Direitos Humanos, identificando os 10 (dez) Comitês de monitoramento ou órgãos de tratados criados ao longo dos anos. Posteriormente, examinam-se os requisitos de admissibilidade do peticionamento individual. Na seção de desfecho, estuda-se de modo geral e comparativo a jurisprudência dos Comitês de monitoramento com competência sobre o Brasil, bem como apresentam-se os 6 (seis) casos brasileiros registrados, exemplificando-se, a partir deles, a dificuldade ou não do acesso ao sistema. Em conclusão, revela-se a complexidade do Sistema Convencional, o que tende a ocasionar entraves ao acesso de vítimas de direitos humanos.
This paper critically analyses the non-incorporation of the principle of non-refoulement in the Chilean Immigration and Aliens Law 21.325 of 20 April 2021. It was published in the context of migratory pressures within the Latin American region, deriving mainly from the Venezuelan socio-political crisis. It was also published after the recommendations given by the CMW in the last two periodic reviews of 2011 and 2021 to update the previous version dictated during the Pinochet dictatorship. As a state party to the core international human rights treaties and the American Convention on Human Rights, an urgent claim existed in Chile to adapt its migration law. Following a heated debate in 2019, the parliament eliminated the recognition of the principle of non-refoulement contained in the draft law arguing it was already recognised in refugee legislation. Instead, they identified a ‘complementary protection’. This paper examines whether this decision breaches human rights standards, particularly the obligation to adopt legislative measures to give effect to the principle of non-refoulement. It begins by analysing the principle of non-refoulement in international refugee law. Then, it turns into identifying the human rights obligations emanating from the principle of non-refoulement. Finally, the paper applies this standard to law 21.325. The paper concludes that not incorporating the principle of non-refoulement into law 21.325 constitutes a breach of Chile’s human rights obligations, facing the risk of incurring international responsibility.
How should democratic states approach and respond to secessionist movements using tactics contrary to the constitution to achieve their goals? What is the role of international human rights mechanisms in these processes? This article sheds light on these questions by examining how the UN Human Rights Committee approached and assessed two complaints that came before it in the wake of the Catalan Declaration of Independence in 2017. The aim is to discuss the Committee’s examination of the merits in the two cases and the procedural hurdles faced. Specifically, it will analyse the effects of examining the merits in hindsight and the extent to which this perspective may have influenced its views. It will further reflect on the potential costs of acting with procedural flexibility towards the two complaints which, while driven by a sense of urgency, did not meet the threshold for irreparable harm. It is concluded that, while a protective stance towards petitioners is the bedrock of its mandate related to individual complaints, acting with such degree of flexibility risks undermining its procedural effectiveness and the integrity of its individual complaint procedure. It also made it come too close to act as a fourth instance in relation to facts that had already been examined by domestic courts by the time of its assessment. At the same time, it did not challenge Spain’s rule of law approach as such.
This introduction presents a special issue of the Journal of Human Rights Practice on the state of the international human rights system. It places the challenges and shortcomings of the 2020 Human Rights Treaty Body Review in the context of the broader discussion on human rights normativity and compliance. The unwillingness of member states to fulfil their budgetary commitments, as well as the ignorance with which some reform proposals were met, reflect a lack of understanding of the significance of legal procedures in the human rights treaty bodies. The main focus of reform efforts is to facilitate reporting obligations for states parties by simplifying procedures to make them more manageable for both states parties and treaty bodies. However, lack of compliance with human rights constitutes the severest shortcoming of international human rights protection today. Therefore, current reform ambitions risk losing sight of the rights holders and of actual human rights implementation on the ground. This fear explains the focus of this special issue on the normativity of human rights and compliance: treaty bodies play a continuous and crucial role for the normative force of human rights as well as their continuous development. They should be perceived as agents of social change and tools to turn rhetoric to action. At the same time, the normative meaning of human rights commitments and its (re-)construction depend on social practices in the states parties. After explaining the dialogical approach and framework of the special issue, the introduction provides an overview of individual contributions (articles and comments) and highlights the key messages of the human rights practitioners involved in the special issue against the background of the ongoing treaty body review.
How does backlash from consolidated democracies affect the behavior of liberal international institutions? We argue that liberal international institutions have incentives to appease their democratic critics. Liberal institutions rely on democratic support for their continued effectiveness and can accommodate democratic critics at a lower legitimacy cost than non-democratic challengers. We examine this theory in the context of the European Court of Human Rights using a new dataset of rulings until 2019 and a coding of government positions during multiple reform conferences. Combining matching and a difference-in-differences design, we find strong evidence that the Court exercises restraint towards consolidated democracies that have criticized the Court in multilateral reform conferences by rendering fewer violation judgments against these states. We find some evidence that governments have also recently appointed more deferential judges. The findings suggest that backlash can affect liberal international institutions even without membership exit.
This article analyses both cooperative and confrontational interactions between domestic judges and UN human rights treaty monitoring bodies. Based on a number of cases collected through multiple databases, this article addresses the basis on which the monitoring bodies encourage the domestic acceptance of their views, general comments, and reports; how domestic courts engage with these findings; on what basis; and why some courts are more willing to engage with these findings. A key argument is that judicial accommodation is highly selective; domestic judges occasionally avoid, discount, and contest the interpretation put forward by the treaty monitoring bodies and thereby pose a challenge to their legitimacy.
Formal international law is stagnating in terms both of quantity and quality. It is increasingly superseded by ‘informal international
lawmaking’ involving new actors, new processes, and new outputs, in fields ranging from finance and health to internet regulation
and the environment. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a
two-year research project involving over 40 scholars and 30 case studies, this article offers evidence in support of the stagnation
hypothesis, evaluates the likely reasons for it in relation to a ‘turn to informality’, and weighs possible options in response.
But informal structures can also become shackles and limit freedom. From practice, we deduce procedural meta-norms against
which informal cooperation is increasingly checked (‘thick stakeholder consensus’). Intriguingly, this benchmark may be normatively
superior (rather than inferior) to the validation requirements of traditional international law (‘thin state consent’).
The success of UN human rights treaty monitoring mechanisms (such as the Human Rights Committee) depends largely on the influence that the findings of these bodies exert on national legal orders. This paper examines the effects that national courts can and do give to such findings. It examines, on the basis of available data on the practice of national courts, whether and how decisions of treaty bodies acquire legal effect at the national level and more in particular in the practice of national courts.
The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘ embeddedness ’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR’s deference to national decision-makers is appropriate.
Level of democracy in a multicultural society could be measured by the level of the
protection of the rights of persons belonging to national, ethnic, religious, linguistic and cultural minorities, in accordance with the international standards of human rights protection. A special place, notably, belongs to the protection of different religious minorities in contemporary multi-confessional international community, in particular due to evident necessity of comprehensive legal protection of individual and collective identities. In this context, a collective approach could be seen as a precondition for full protection of those minorities, because practicing religion consists also of manifestation of its features and interaction among individuals and within the collectivity. Right to use and disclose religious symbols and clothing items is a part of protection of identity of persons belonging to religious minorities. Preservation of minority identity is as important as physical existence or survival of minority group.
Contemporary European legal minority rights protection is focused on the rights of
individuals belonging to national minorities, including the religious ones. However, it is evident that there is a need for, at least, an implicit introduction of collective approach in legal protection of minorities, especially in the context of religious and linguistic rights, whose existence and preservation depend on interaction among individuals belonging to those minorities. A joint approach or protection of both individual and collective minority rights is the model leading towards full protection of minority identity and cultural diversity. This approach has special importance for multicultural Western Balkans, in a post-Yugoslav context. And, it is more present as an issue at the level of continental Europe, especially in France and Belgium, given that the case-law of the Court in Strasbourg is illustrative.
Like almost no other international human rights protection system, the system of the European Convention on Human Rights is institutionally consolidated. The present contribution briefly traces the genesis and development of the European Court of Human Rights and then turns to the examination of three challenges the Court is currently faced with. In the section on the lack of implementation of judgments, the approach of the German Federal Constitutional Court to the Strasbourg case law, which contrasts principled openness towards European human rights law with emphasizing constitutional identity, is analysed. Moreover, the contribution examines how this approach has been taken up by actors in the United Kingdom and Russia. The problem of the insufficient qualification of some candidates proposed by States is addressed in the section on the election of judges. A solution might be to formally integrate the members of the Advisory Panel into the official hearing of the candidates. The section on dynamic interpretation looks at the nexus between the Court’s interpretation of the Convention and the States’ acceptance of its jurisprudence. By transferring the interpretation of the Convention to an independent international authority, States relinquish part of their power. They will only accept this transfer of power permanently if the judicial interpretation by the Strasbourg Court remains consistent, comprehensible and plausible. The Court should therefore not act as a human rights’ ‘trendsetter’ or a ‘judicial activist’. Overall, three principles are decisive for an effective international human rights protection that meets with both the general and long-term acceptance on the part of the Contracting States and the undeniable needs of individuals to have their human rights and fundamental freedoms protected against unlawful State interference. These principles are the judicial self-restraint of the Court, the subsidiarity principle and a margin of appreciation left to the Contracting States.
This introduction presents a special issue of the Journal of Human Rights Practice on the state of the international human rights system. It places the challenges and shortcomings of the 2020 Human Rights Treaty Body Review in the context of the broader discussion on human rights normativity and compliance. The unwillingness of member states to fulfil their budgetary commitments, as well as the ignorance with which some reform proposals were met, reflect a lack of understanding of the significance of legal procedures in the human rights treaty bodies. The main focus of reform efforts is to facilitate reporting obligations for states parties by simplifying procedures to make them more manageable for both states parties and treaty bodies. However, lack of compliance with human rights constitutes the severest shortcoming of international human rights protection today. Therefore, current reform ambitions risk losing sight of the rights holders and of actual human rights implementation on the ground. This fear explains the focus of this special issue on the normativity of human rights and compliance: treaty bodies play a continuous and crucial role for the normative force of human rights as well as their continuous development. They should be perceived as agents of social change and tools to turn rhetoric to action. At the same time, the normative meaning of human rights commitments and its (re-)construction depend on social practices in the states parties. After explaining the dialogical approach and framework of the special issue, the introduction provides an overview of individual contributions (articles and comments) and highlights the key messages of the human rights practitioners involved in the special issue against the background of the ongoing treaty body review.
During its more than 60 years of operation, the European Court of Human Rights has proven to be a real beacon for many individuals. Through its case law, it has contributed to the development of human rights law as well as to the development of the principles of the rule of law and of democracy in Europe. However, the Court faces two central problems: the caseload it has to deal with and challenges to its authority and legitimacy. The present contribution will study the history and the achievements of the Court, and address the challenges and the Court’s response to them. The latter has particularly included measures aimed at making its working methods more effective and attempts to increase awareness of its subsidiary role within the Convention protection system, especially regarding its approach to the review of decisions of national authorities. In this context, the development of the principle of process-based review in the Court’s jurisprudence is examined. What will characterize the Convention system in the future is closer cooperation between the Court and national courts. Whether this will effectively lead to an increased protection of human rights on the ground remains to be seen. It is not only for the Court to earn such confidence through its work, but also for others to maintain a climate in which that confidence can continue to be enjoyed.
This comment is a reply to Caroline Lichuma’s chapter ‘In International Law We (Do Not) Trust: The Persistent Rejection of Economic and Social Rights as a Manifestation of Cynicism’. In his reply, the author disagrees with Lichuma’s understanding of cynicism as insincerity. Instead, cynicism must be understood as a certain negative, ridiculing and even destructive mindset based on self-interest. Further, for states to argue that the normative value of economic and social rights does not reach the level of civil and political rights is not in itself insincere, as the wording and the drafting history of the International Covenant on Economic, Social and Cultural Rights are a valid—but also contested—basis for such a limited understanding. However, while states may have wanted to limit their commitment with regard to economic and social rights, they nevertheless have commited themselves. Finally, the author argues that insights stemming from political science and economics help in dealing with the problems standing in the way of the full realisation of economic and social rights, which underlie Caroline Lichuma’s definition and critique of cynicism.
Are international institutions more prone to face backlash politics than domestic ones? Are international institutions easy targets for satisfying domestic political interests? Using the case of the recent criticism of the European Court of Human Rights, the article explores whether international institutions are more susceptible to face backlash politics than domestic ones due to the dual nature of international politics. The empirical study, focusing on the reform of the European Court of Human Rights through the 2018 Copenhagen Declaration, suggests that pre-existing commitments to international institutions might be given up rapidly when significant domestic interests collide with international institutions and their practices. The analysis, however, also shows that backlash politics against international institutions is transformed when seeking institutional reform. Entering a collective bargaining process, backlash objectives are changed by the logic of diplomatic negotiation, academic scrutiny and the interests of the other member states and civil society. This suggests that the two-level logic of ordinary international politics has a mediating effect on domestically fuelled backlash campaigns.
It is no longer contested that statements of international law issued by various international actors play an important part in shaping the content of international law in a way that cannot be explained by reference to formal legal entitlements. This article argues that the concept of authority is particularly well-suited to account for the normative effects of such statements. Building on rhetoric, sociology and political philosophy, it conceptualizes authority as deference entitlement and identifies four marks of authority to say what the international law is that are not coextensive with the formal power to compel through binding decisions. It then turns to broader implications of this concept of authority for international law and concludes with suggestions for possible further research. © The Author 2017. Published by Oxford University Press. All rights reserved.
This paper will analyse instances and threats of withdrawal from the Inter-American Court of Human Rights (IACtHR) in order to assess whether those cases can be qualified as backlash. Backlash often serves as an umbrella term for any form of disagreement, hence we differentiate ‘backlash’ from closely connected concepts such as ‘contestation’ and ‘resistance’. In the empirical part of this paper, we examine four cases of withdrawal from the IACtHR or threats thereof, namely Trinidad and Tobago, the Dominican Republic, Peru and Venezuela. The case-studies revealed that the criticism against the IACtHR is fuelled by a combination of three conditions, namely costs of membership, the domestic political system and the domestic impact of the judgments. Ultimately, the specific framework of the IACtHR allows innovative starting points to manage state discontent, in particular the two-tiered structure, the alliance with civil society and the presence of compliance partners within the state.
By chronicling the continuing contest over the reach, range, and regime of rights, Contracting Human Rights analyzes the way forward in an era of many challenges. This multidisciplinary book contributes to building understanding of the maturation of human rights, from a dissident doctrine to a dynamic parameter of global governance and civil society. Through an examination of both global and local challenges to human rights, including loopholes, backlash, accountability, and new opportunities to move forward, this book analyzes trends across multiple-issue areas.
This book offers a major new theory of global governance, explaining both its rise and what many see as its current crisis. The author suggests that world politics is now embedded in a normative and institutional structure dominated by hierarchies and power inequalities and therefore inherently creates contestation, resistance, and distributional struggles. Within an ambitious and systematic new conceptual framework, the theory makes four key contributions. Firstly, it reconstructs global governance as a political system which builds on normative principles and reflexive authorities. Second, it identifies the central legitimation problems of the global governance system with a constitutionalist setting in mind. Third, it explains the rise of state and societal contestation by identifying key endogenous dynamics and probing the causal mechanisms that produced them. Finally, it identifies the conditions under which struggles in the global governance system lead to decline or deepening.
Rich with propositions, insights, and evidence, the book promises to be the most important and comprehensive theoretical argument about world politics of the 21st century.
The effective implementation of human rights treaty obligations in national law is subject to increasing attention. The main responsibility for the international monitoring of national implementation at the global level is entrusted to the UN human rights treaty bodies. These bodies are established by the respective human rights conventions and are composed of independent experts. This book examines three aspects of these bodies: the legal aspects of their structure, functions and decisions; their effectiveness in ensuring respect for human rights obligations; and the legitimacy of these bodies and their decisions. Containing contributions from a variety of eminent legal experts, including present and former members of the treaty bodies, the analysis should be read in light of the ongoing effort to strengthen treaty bodies under the auspices of the UN High Commissioner for Human Rights and with the involvement of relevant stakeholders.
Defining Civil and Political Rights provides a comprehensive analysis and commentary on the decisions – technically known as views – of the United Nations Human Rights Committee, for use by human rights lawyers throughout the world. Each of the substantive rights and freedoms set out in the International Covenant on Civil and Political Rights is considered in detail, by analysis of final reviews and comments of the Human Rights Committee. This second edition has been thoroughly revised and updated to take account of recent jurisprudence on the Human Rights Committee. New material has been added based upon substantive areas of the committee's jurisprudence.
Since the General Assembly's adoption of the Universal Declaration of Human Rights in 1948, the international human rights movement has made enormous advances. Today, there are eight international human rights treaty bodies (committees) sponsored by the United Nations that are tasked with monitoring and promoting compliance with their respective treaties. All states have ratified at least one of these treaties, and 80 per cent have ratified four or more. Committees are comprised of independent experts and, in general, carry out three functions: (1) examine state party reports on compliance with treaty obligations and adopt specific ‘Concluding Observations' in respect of them; (2) adopt ‘Views' in response to individual Communications alleging treaty violations; and (3) adopt ‘General Comments' or ‘General Recommendations' (General Comments). This study focuses on the nature, drafting and legitimacy of General Comments adopted by the Human Rights Committee (‘the Committee'), which monitors compliance with the International Covenant on Civil and Political Rights (1966).
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies - legislatures, courts, and regulators - that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR). This article critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the International Covenant on Civil and Political Rights (ICCPR), so the doctrine should be applied by the Human Rights Committee.
The adoption by the International Law Commission in 2001 of its Articles on State Responsibility is an achievement that presents a paradox. This essay is about the form and authority of the Articles, and the paradox by which they could have more influence as an ILC text than as a multilateral treaty. This essay addresses the questions of what is the appropriate authority to be given an ILC text, why an ILC text may be given undue influence (particularly by arbitral tribunals) and how an arbitral tribunal should approach interpreting and applying the ILC Articles on State Responsibility. This essay proceeds by first situating the ILC's work on state responsibility within the context of the codification movement generally and of concerns regarding that movement. The essay second discusses the ILC practice of undertaking its work in the form of a treaty rather than, for example, a narrative. It analyses the final debate in the ILC as to the form and authority of its project on state responsibility whereby the ILC chose to maintain the form of a treaty, but not recommend that it actually be the basis of a treaty, in significant measure because the ILC thought it would have more influence in that form. Similarly the U.N. General Assembly's subsequent acceptance of the ILC's approach is discussed. Given the ILC and General Assembly actions, the essay third considers how this scholarly commentary on state responsibility, written as though it were a treaty, should be approached, tested and elaborated upon by future arbitral panels and courts. To address these questions, the essay in its concluding sections considers the authority of the ILC's work as a source of international law, and examines how the treaty form can give rise to problems of false concreteness and false consensus, and how the interpreter may seek to overcome such potential problems.
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