A Commentary on the International Covenant on Civil and Political Rights 9781108498852, 9781108689458, 2019037793, 2019037794

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A Commentary on the International Covenant on Civil and Political Rights A new and an essential reference work for any international human rights law academic, student or practitioner, A Commentary on the International Covenant on Civil and Political Rights spans all substantive rights of the ICCPR, approached from the perspective of the ICCPR as an integrated, coherent scheme of rights protection. In detailed coverage of the Human Rights Committee’s output when monitoring ICCPR compliance, Paul M. Taylor offers extraordinary access to forty years of its Concluding Observations, Views and General Comments, organised thematically. This Commentary is a solid and practical introduction to any and all of the civil and political rights in the ICCPR, and a rare resource explaining the requirements for domestic implementation of ICCPR standards. An indispensable research tool for any serious enquirer into the subject, the Commentary speaks to the accomplishments of the ICCPR in striving for universal human rights standards. Paul M. Taylor is a Senior Research Fellow at the University of Queensland’s TC Beirne School of Law, Visiting Fellow at the Australian National University’s Centre for International and Public Law and Adjunct Professor at The University of Notre Dame Australia’s School of Law. His principal academic interests are international human rights law, conflict of laws and competition law. Other significant books he has authored include UK and EC Competition Law and Compliance (1999) and Freedom of Religion: UN and European Human Rights Law and Practice (2005).

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Published online by Cambridge University Press

A C O M M E N TA RY ON THE international covenant on civil and political rights The UN Human Rights Committee’s Monitoring of ICCPR Rights

PAUL M. TAYLOR Senior Research Fellow at the University of Queensland’s TC Beirne School of Law and Visiting Fellow at the Australian National University’s College of Law

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314 321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi 110025, India 79 Anson Road, #06 04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108498852 DOI: 10.1017/9781108689458 © Cambridge University Press 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Names: Taylor, Paul M., 1958 author. Title: A commentary on the International Covenant on Civil and Political Rights / Paul M. Taylor. Description: New York : Cambridge University Press, 2020. | Includes bibliographical references and index. Identifiers: LCCN 2019037793 (print) | LCCN 2019037794 (ebook) | ISBN 9781108498852 (hardback) | ISBN 9781108689458 (ebook) Subjects: LCSH: International Covenant on Civil and Political Rights (1966 December 16) | International law and human rights. | Fair trial. | Criminal procedure (International law) Classification: LCC K3238.31966 .T39 2020 (print) | LCC K3238.31966 (ebook) | DDC 341.4/8 dc23 LC record available at https://lccn.loc.gov/2019037793 LC ebook record available at https://lccn.loc.gov/2019037794 ISBN 978 1 108 49885 2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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C O N T EN T S

Foreword Preface Table of Cases Table of Treaties List of Abbreviations

page xxv xxvii xxix xlvii li

Introduction The Development and Characterisation of Rights and Freedoms of the Individual Indivisibility of Rights The Supervisory Role of the Human Rights Committee State Reporting and Concluding Observations Views in Response to Communications under the First Optional Protocol Inter State Complaints General Comments Parallel Regional Systems European Convention on Human Rights American Convention on Human Rights African Charter on Human and Peoples’ Rights Some Points of Difference Between Them The Centrality of the Scope, Limitations, Qualifications and Mandated Provisions Domestic Implementation Violation Interdependence and Interaction of Rights in their Enjoyment and when Violated Certain Covenant Rights are Inseparable from Each Other Certain Covenant Rights Influence and are a Source of Interpretation for Others Interdependence of Covenant Rights Interoperability of Covenant Rights Structure and Content

1 1 5 7 7 8 10 11 12 12 12 13 14 22 23 25 27 27 28 32 32 34

Article 1: Self-determination Introduction Development of the Right of Self determination Interaction between Article 1 and Other Rights Internal and External Self determination The Complementary Roles of Self determination and Self government/Independence A Legal Right A Permanent Right Article 1(1) All Peoples: a Collective, Not Individual, Right

36 37 37 41 42 43 44 46 46 46

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Contents Meaning of Self determination Article 1(2) Freedom to Dispose of Natural Wealth and Resources Traditional Lands and Economic Activities of Indigenous People Article 1(3) The Role of Article 1 in Interpreting Other Rights Implementation Conclusion

48 49 49 50 52 53 55 56

Article 2: To ‘Respect and to Ensure’ Covenant Rights Introduction The Significance and Reach of Article 2 The Accessory Character of Article 2 Victim Status under Article 1 of OP1 Chapter Outline Article 2(1): To ‘Respect’ and to ‘Ensure’ Immediate Effect The Twin Obligations ‘All Individuals Within Its Territory and Subject to Its Jurisdiction’ (Rationae Personae and Loci Scope) ‘Without Distinction of any Kind, such as Race, Colour, Sex, Language, Religion, Political or Other Opinion, National or Social Origin, Property, Birth or Other Status’ The Rights to Equality and Non discrimination How the Key Equality and Non Discrimination Provisions (Articles 2(1), 3 and 26) Differ from Each Other Article 2(2): Laws and Other Measures to Give Effect to Covenant Rights Necessary Steps Achieving Covenant Compliance in Domestic Law Incorporation and Alternative Models Compliance with Other Conventions Terms of Limitation Reservations Concerning the Supremacy of Other Sources of Law Comprehensive Coverage Institutions Federal Structures Article 2 as a Tool for Changing Deficient Domestic Laws Article 2(3): Remedies Article 2(3)(a): An Effective Remedy Nature of Remedies Duty to Investigate Article 2(3)(b): Remedy to be Determined by Competent Authorities Article 2(3)(c): Enforcement of Remedies Conclusion

58 59 59 59 62 62 62 62 64

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66 67 68 69 69 70 70 72 72 73 74 74 75 76 78 78 78 82 85 85 86

Contents Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights Introduction Article 3 in the Context of Other Equality and Non discrimination Provisions Development of Article 3 and Enduring Resistance to its Implementation Chapter Outline Situations in which Article 3 is Commonly Engaged The Right to Life Abortion Cruel, Inhuman or Degrading Treatment Denial of Access to Pregnancy Termination Services Violence against Women, including Domestic Violence Sexual Violence (including Rape) Other Forms of Violence against Women Slavery, Servitude, Forced and Compulsory Labour The Right to Liberty and Freedom of Movement Conditions of Detention Equality before the Courts and Tribunals The Right to Recognition before the Law Privacy, Family Life and the Home Freedom of Thought, Conscience and Religion Freedom of Expression The Right of Men and Women of Marriageable Age to Marry Equality of Rights and Responsibilities of Spouses (Marriage, During Marriage and Dissolution) Other Personal Laws Public Life Minorities Implementation Conclusion Article 4: Derogation in Times of Officially Proclaimed Public Emergency Threatening the Life of the Nation Introduction Article 4(1): Cumulative Preconditions for Permissible Derogation A Public Emergency which Threatens the Life of the Nation The Existence of the Public Emergency must be Officially Proclaimed Derogation is Permitted only to the Extent Strictly Required by the Exigencies of the Situation Derogating Measures must be Consistent with the State’s Obligations under International Law Derogating Measures must not Involve Discrimination Solely on the Ground of Race, Colour, Sex, Language, Religion or Social Origin Article 4(2): Non derogable Rights and Freedoms

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87 87 87 88 91 91 91 92 93 93 94 95 96 96 97 97 97 97 98 99 100 100 100 103 103 103 104 104

106 107 108 109 110 112 118 119 121

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Article 4(3): Accountability to Other States Parties Implementation Conclusion

124 125 127

Article 5: Bar on Interpreting the Covenant in Abuse of Rights Introduction Article 5(1) Article 5 as a Restraint on the State as well as Individuals and Groups ‘Activities’ and ‘Acts’ with a Destructive or Over Restrictive Aim The Rights Targeted for Destruction or Excessive Limitation (‘Any Covenant Rights and Freedoms’) Article 5(2) Higher Standards of Domestic Protection Preserved by Article 5(2) Higher Domestic Standards must Pertain to Fundamental Human Rights Recognised in the Covenant No Obligations Assumed by Article 5(2) Implementation Conclusion

129 129 130 130 132

Article 6: The Right to Life Introduction Interaction between Article 6 and Other Covenant Provisions Chapter Outline Article 6(1) Protection of Life by Law Grounds for Deprivation of Life must be Prescribed by Law and Defined with Precision Lack of Legal Basis and Arbitrariness Broader Protective and Other Duties To Protect the Right to Life Remedies, Criminal Investigation, Prosecution and Punishment Organisational Requirements Obligations on Expulsion or Extradition Assurances Duty to Investigate Issues Raised Arbitrary Deprivation of Life Elements of Inappropriateness, Injustice, Lack of Predictability and Due Process of Law, as well as Elements of Reasonableness, Necessity and Proportionality Excessive Use of Force Arbitrariness through Inconsistency with International Law or Domestic Law Article 6(2) (6): Death Penalty Provisions Article 6(2): Preconditions for Imposition of the Death Penalty Article 6(3): No Implied Derogation from Genocide Convention Article 6(4): Right to Seek Pardon and Commutation

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133 134 134 135 135 136 136 138 139 140 141 142 142 142 143 144 144 145 147 147 149 150 151

151 152 153 154 154 157 157

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Article 6(5): Crimes Committed by Those Under 18 Article 6(6): Abolition Right to Life in Particular Settings Death Penalty Cases Detainees (on Remand or in Prison Custody, or Detained for Health Reasons) Enforced Disappearance Vulnerable Abortion Suicide and Euthanasia War Implementation Conclusion

158 159 159 159 160 162 163 163 165 166 168 169

Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment Introduction Status in International Law Interaction between Article 7 and Other Covenant Provisions Non derogable and Absolute Character Chapter Outline The State’s Obligation of ‘Effective Protection’ Ensure ‘Effective’ Protection against Public and Private Sources Duty to Investigate Prosecution Redress Burden of Proof of Violation Amnesties, Impunity and Statute of Limitations Obligations towards Detainees and Prisoners Obligations on Expulsion or Extradition Safeguards against Torture and Ill treatment Torture Definition of Torture Patterns of Torture Findings Article 14 Safeguards against Confessions under Torture Cruel Inhuman or Degrading Treatment Treatment in Detention and Conditions of Detention Enforced Disappearance Incommunicado Detention The Families of Victims of Violation Treatment at the Hands of Police and Security Forces at Home Physical and Mental Integrity The Conduct of Investigations and Court Proceedings Reproductive Rights (Denial of Abortion and Sterilisation) Female Genital Mutilation Sexual Violence

171 171 171 172 175 176 177 177 178 180 181 181 183 184 184 188 189 189 190 192 193 193 193 196 197 199 199 200 202 203 204

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Contents Domestic Violence Economic and Social Causes Cruel, Inhuman or Degrading Punishment Life Sentences Corporal Punishment Capital Punishment Means of Execution Issue of Execution Warrant Death Penalty in Breach of Article 6 or 14 Time between Sentence and Carrying Out the Death Penalty Death Row Conditions ‘Medical or Scientific Experimentation’ Implementation Conclusion

204 205 205 206 207 209 209 209 210 210 212 213 215 216

Article 8: Slavery, Servitude and Forced or Compulsory Labour Introduction The Influence of Slavery and Labour Conventions Modern Forms of Human Exploitation Interrelation between Article 8 and Other Covenant Provisions Chapter Outline Article 8(1): Slavery Article 8(2): Servitude Debt Bondage and Bonded Labour Serfdom Forced Marriage Domestic Servitude Child Exploitation Human Exploitation by Trafficking Article 8(3): Forced or Compulsory Labour Article 8(3)(a): No One Shall be Required to Perform Forced or Compulsory Labour Article 8(3)(b): Allows Imprisonment with Hard Labour as Punishment for a Crime Article 8(3)(c): Exclusions from ‘Forced or Compulsory Labour’ (i) Work or Service in Court ordered Detention, or When Conditionally Released (ii) Military Service, and Alternatives if Conscientious Objection is Recognised (iii) Service in Cases of Emergency or Calamity Threatening the Life or Well Being of the Community (iv) Work or Service which Forms Part of Normal Civil Obligations Implementation Conclusion

218 219 219 221 223 224 224 226 226 227 227 228 228 229 232

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Article 9: Liberty and Security Introduction Scope Interaction between Article 9 and Other Covenant Provisions Chapter Outline Article 9(1): The Right to Personal Security Article 9(1): The Right of Liberty ‘Arrest’ and ‘Detention’ Deprivation of Liberty Must be Lawful Deprivation of Liberty Must Not be ‘Arbitrary’ Reasonableness, Necessity and Proportionality Immigration Detention (including Mandatory Detention) Preventive Detention Excessive Sentence Parole Revocation Arbitrariness Where Detention is Incompatible with a Covenant Provision Arbitrariness Where Detention is Punishment for the Legitimate Exercise of Covenant Rights, or is Discriminatory Article 9(2): The Right to be Informed, at the Time of Arrest, of the Reasons for Arrest and Promptly be Informed of Any Charges Notice of Reasons for Arrest Notice of Criminal Charges Article 9(3): Judicial Control of Detention ‘Shall be Brought Promptly Before a Judge’ ‘Trial within a Reasonable Time’ Release or Custody Pending Trial Article 9(4): Right to Take Proceedings Before a Court Regarding the Lawfulness of Detention Article 9(5): Enforceable Right to Compensation for Victims of Unlawful Arrest or Detention Implementation Conclusion

240 241 241 243 246 246 250 250 251 253 253 254 258 260 261 261

Article 10: Treatment of Those Deprived of Their Liberty Introduction Purpose Covenant Rights and Freedoms of Detainees and Prisoners Interaction between Article 10 and Other Covenant Provisions Chapter Outline Article 10(1): Treatment of Detainees and Prisoners in Violation of Article 10(1) and/or Article 7 Article 7 ‘Torture’ and its Coincidence with Article 10(1) Article 7 ‘Cruel, Inhuman Treatment and Degrading Treatment’ and its Coincidence with Article 10(1) Article 7 ‘Degrading Treatment’ and its Coincidence with Article 10(1)

281 282 282 283 284 285

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285 285 287 287

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Death Row Conditions Enforced Disappearance and Incommunicado Detention Solitary Confinement Immigration Detention Conditions of Detention and Privations Overcrowding Insanitary Environment Cell Size Out of Cell Time Lack of Opportunity for Exercise, Recreation, Education or Work Lack of Exposure to Natural Light or Ventilation Exposure to Wet and Temperature Extremes Lack of Sleeping Amenities Access to a Lawyer and Family Lack of Medical Treatment Vulnerable Detainees and Prisoners Deprivation of Food and/or Water Denial of Religious Requirements Denial of the Right to Vote Restrictions on Communications Interference with Privacy Article 10(2)(a): Segregation of ‘Accused’ from ‘Convicted’ Persons in Pre Trial Detention Article 10(2)(b): Segregation of ‘Accused Juveniles’ from Adults (in Pre Trial Detention) and Speedy Appearance for Adjudication Article 10(3): Segregation of Juvenile Offenders from Adults, Treatment Appropriate to Their Age and Status, and the Purpose of Penal System Segregation of Juvenile ‘Offenders’ from Adults Treatment of Juvenile Offenders Reformation and Social Rehabilitation of All Prisoners Implementation Conclusion

312 312 313 313 315 317

Article 11: Imprisonment for Inability to Fulfil a Contractual Obligation Introduction Development of Article 11 Chapter Outline The Sphere of Operation of Article 11 Family Law Obligations Independent Operation of the Criminal Law Inability to Make Restitution in Criminal Matters Implementation Conclusion

319 319 319 320 320 320 321 321 322 323

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Article 12: Freedom of Movement of the Person Introduction Background Interaction between Article 12 and Other Covenant Provisions Chapter Outline Article 12(1): Liberty of Movement and Freedom to Choose Residence Movement Residence Everyone Lawfully Within the Territory of a State Reach of State Responsibility Article 12(2): Freedom to Leave any Country Article 12(3): Limitations Provided by Law Necessary National Security; Public Order (Ordre Public) Public Health or Morals Rights and Freedoms of Others Consistency with the Covenant Derogation Article 12(4): The Right to Enter One’s Own Country ‘His Own Country’ Arbitrariness Implementation Conclusion

325 325 325 326 330

Article 13: Procedural Safeguards in the Expulsion of Aliens Introduction Procedural Safeguards not a Direct Prohibition against Arbitrary Action Destination Country Mass Expulsion of Aliens Asylum and Extradition Interaction between Article 13 and Other Covenant Provisions An Alien Lawfully in the Territory of the State Party Decision Reached ‘in Accordance with the Law’ The Rights to Submit Reasons against Expulsion, and of Review, with Representation, Except where Compelling Reasons of National Security Otherwise Require Submit Reasons Case Review Compelling Reasons of National Security Implementation Conclusion

354 354

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354 355 356 356 357 359 360

362 362 363 365 367 367

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Article 14: Fair Trial Rights Introduction Outline Characteristics of Article 14 Interaction between Article 14 and Other Covenant Provisions Chapter Outline Article 14(1) Distinctions between the Right to Equality before the Courts and Tribunals, and to a Fair and Public Hearing Equality before the Courts and Tribunals: Applies to All Proceedings All Persons Non discrimination Equal Access Equality of Arms Right to ‘a Fair and Public Hearing’ by a ‘Competent, Independent and Impartial Tribunal Established by Law’ ‘Determination of a Criminal Charge’ ‘Suit at Law’ Fair Hearing ‘Manifestly Arbitrary or a Denial of Justice’, ‘Biased and Arbitrary’ Lack of Expedition Public Hearing Competent, Independent and Impartial Tribunal Established by Law

Competence Independence Impartiality Established by Law Article 14(2): Presumption of Innocence for Anyone Charged with a Criminal Offence Article 14(3): Criminal Charges: Minimum Guarantees (in Full Equality) Article 14(3)(a): Promptly be Informed of the Charge against the Accused Article 14(3)(b): Adequate Time and Facilities for Preparation of Defence and to Communicate with Counsel Adequate Time and Facilities Communication with Counsel Article 14(3)(c): Trial without Delay Article 14(3)(d): Trial in the Accused’s Presence, Right to Defence, with Legal Assistance (Either of Choice or if Required) Without Cost if of Insufficient Means Trial in the Accused’s Presence Defence in Person or Through Legal Assistance of Choice, and Assigned Legal Assistance Assigned Free Legal Assistance where Required in the Interests of Justice Article 14(3)(e): Examination of Prosecution Witnesses and Compulsion of Witnesses Article 14(3)(f): Interpretive Assistance

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369 371 371 372 373 373 373 374 375 375 376 377 380 380 381 383 384 386 387 389

389 390 393 396 396 399 399 400 401 402 404

406 406 408 409 411 413

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Article 14(3)(g): Rights against Self incrimination Article 14(4): Criminal Procedure in the Trial of Juveniles: Take Account of Their Age and Promote Their Rehabilitation Article 14(5): Review of Conviction and Sentence by a Higher Tribunal Article 14(6): Criminal Conviction: Right to Compensation for Miscarriage of Justice Article 14(7): Criminal Prosecution: Ne bis in idem (Double Jeopardy) Implementation Conclusion

414

Article 15: Retroactive Criminal Law Introduction Article 15(1) Core Principles Nulla poena sine lege certa Review of Domestic Interpretation and Application of the Law Second and Third Sentences: lex mitior Second Sentence: No Heavier Penalty May be Imposed than Applicable at the Time of the Offence Third Sentence: Lighter Penalty to Apply if Introduced Following Commission of the Offence Article 15(2): Preservation of Trial and Punishment of Crimes According to General Principles of Law Recognised by the Community of Nations Implementation Conclusion

429 429 431 431 433 435 437

Article 16: Recognition as a Person Before the Law Introduction Substance of the Right Interaction between Article 16 and Other Covenant Provisions Chapter Outline Situations of Vulnerability to Article 16 Violation Enforced Disappearance Human Trafficking Those Declared Legally Dead Collective Punishment and Misuse Family Codes and Personal Laws Measures of Protection Required for Children Birth Registration Legal Capacity of Those with Disabilities Marriage Equality Official Recognition of Gender Implementation Conclusion

445 445 445 446 447 447 447 449 449 449 450 451 452 453 454 455 455 456

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437 439 441 443 444

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Article 17: Privacy, Home, Correspondence; Honour and Reputation Introduction Scope Interaction between Article 17 and Other Covenant Provisions Chapter Outline Issues of Legality ‘Unlawful’ Interference; ‘Unlawful’ Attacks ‘Protection of the Law against Such Interference or Attacks’ Article 17 as a Basis for Impugning the Law ‘Arbitrariness’ ‘Reasonable in the Particular Circumstances’ Disproportionate Impact of an Interference to its Objectives Objective Justification in the Light of the Reasons for Interference and the Degree of Hardship Inappropriateness, Injustice, Lack of Predictability and Due Process of Law Key Elements of Article 17 Privacy Choice of Name Sexual Activity Marital Status, Gender Identity and Official Documents Privacy of Information Surveillance DNA Testing Pregnancy Testing HIV Testing Forced Medical and Similar Intervention Denial of Abortion Services Family Residence Status Family Separation on Deportation Child Custody and Access Failure to Inform Relatives Home Family Home Searches and Forced Entry Demolition of the Home and Eviction Correspondence (Prison Procedures) Attacks on Honour and Reputation Comments by Presiding Judge Accusations Followed by Court Vindication of Innocence Post Rape Questioning and Treatment False Rumours to Generate Public Aversion Unreasonable Psychiatric Examination for Proceedings False Attribution of Authorship Negative Association

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Implementation Conclusion

496 497

Article 18: Freedom of Thought, Conscience and Religion Introduction Interaction between Article 18 and Other Covenant Provisions Chapter Outline The Inviolate Realm of Article 18 Freedom of Choice of Religion or Belief and Freedom from Coercion in That Choice The Origins of Article 18(2) Proselytism, Missionary Activity and Humanitarian Work Coercion Compulsory Military Service Conscientious Objection in Other Contexts The ‘Manifestation’ of Religion or Belief Scope of the Freedom to Manifest Religion or Beliefs Terms of Limitation Disciplines Applicable to Limitation Grounds of Limitation Public Safety Public Order Health Morals Rights and Freedoms of Others Collective Aspects of Religion or Belief Organisational Ethos Registration Leadership Teaching, Preaching and Professing Worship Private not Public Practice Parental and Guardianship Rights: Article 18(4) Religious Education in Public Schools Denominational Schools Implementation Conclusion

499 499 502 503 504

Article 19: Freedom of Expression Introduction Interaction between Article 19 and Other Covenant Provisions Chapter Outline Article 19(1): Freedom of Opinion Article 19(2): Freedom of Expression Scope

538 538 540 542 542 544 544

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Access to Information An Independent and Diverse Media Article 19(3): Terms of Limitation Disciplines Applicable to Limitation Domestic Law Requirements Covenant Compatibility of Laws Necessity and Proportionality Onus of Proof Strict Test of Justification for Restrictions Grounds of Limitation Special Duties and Responsibilities Respect of the Rights and Reputations of Others National Security Public Order Public Health and Public Morals Implementation Conclusion

545 549 551 551 551 556 558 560 560 562 562 564 568 571 574 576 577

Article 20: Propaganda for War and Hate Speech Introduction Interaction between Article 20 and Other Covenant Provisions Propaganda for War: Article 20(1) Hate Speech: Article 20(2) Implementation Domestic Measures to ‘Prohibit by Law’ Reservations Conclusion

579 579 580 581 581 585 585 589 589

Article 21: Freedom of Assembly Introduction Interaction between Article 21 and Other Covenant Provisions Chapter Outline The Right of Peaceful Assembly Limitation Provisions In Conformity with the Law Necessary in a Democratic Society In a Democratic Society Necessary Grounds of Limitation National Security or Public Safety Public Order Rights and Freedoms of Others The Protection of Public Health or Morals Implementation Conclusion

591 591 592 593 594 596 596 597 597 600 601 601 602 605 606 606 608

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Article 22: Freedom of Association Introduction Interaction between Article 22 and Other Covenant Provisions Chapter Outline Article 22(1): Scope The Right of the Individual to Found and to Join an Association Compulsion to Join an Association Trade Unions The Right to Join a Trade Union Right Not to Join a Trade Union Right to Strike Article 22(2): Terms of Limitation Prescribed by Law Necessary in a Democratic Society National Security or Public Safety Public Order Protection of Public Health or Morals Protection of the Rights and Freedoms of Others Members of the Armed Forces and the Police Article 22(3): The ILO Conventions Implementation Conclusion

610 610 612 614 614 614 614 616 616 617 618 619 620 621 623 623 626 626 627 627 628 628

Article 23: Protection for the Family Introduction Position within the Covenant Interaction between Article 23 and Other Covenant Provisions Chapter Outline Article 23(1): Protection for the Family Protection by Society and the State Definition of the ‘Family’ Approaches to Article 23 in Different Circumstances Family Separation and Reunification Destruction of Family Homes and Eviction Custody and Care of Children Action or Failure by Courts, Administrative Bodies and Enforcement Officers to Secure the Protection of Children Article 23(2): The Right to Marry and to Found a Family The Right to Marry ‘Of Marriageable Age’ The Right to Found a Family Article 23(3): Full Consent Required of the Intending Spouses Arranged Marriages Forced Marriage Dowry

630 631 631 632 633 634 634 635 637 637 641 642

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Article 23(4): Equality of Rights and Responsibilities of Spouses as to Marriage, during Marriage and at its Dissolution/ Necessary Protection for Children on Marriage Dissolution Development of the Equality Text Gender Inequality Contact between a Child and the Non Custodial Parent The Protection of Any Children on the Dissolution of Marriage Implementation Conclusion Article 24: Protection Required for Children Introduction Development of Article 24 within the Covenant Scheme Interrelation between Article 24 and the Convention on the Rights of the Child Chapter Outline Article 24(1): Every Child Shall Have the Right to Such Measures of Protection as are Required by His Status as a Minor Non discrimination: Articles 2 and 26 Right to Life: Article 6 Cruel, Inhuman or Degrading Treatment or Punishment: Article 7 Slavery, Servitude and Forced Labour: Article 8 The Right to Liberty and Security of Person: Article 9 Conditions of Detention: Article 10(1) Migrant and Displaced Children: Articles 12 and 13 Juvenile Justice: Article 14(4) Recognition as a Person before the Law: Article 16 Interference with the Family: Article 17; Protection for the Family: Article 23 Family Separation on Deportation Family Reunification Child Access and Custody State Intervention in the Care of Children Unaccompanied and Separated Migrants Liberty of Parents and Legal Guardians to Ensure the Religious and Moral Education of Their Children Early Marriage Article 24(2): Every Child Shall be Registered Immediately after Birth and Shall Have a Name Article 24(3): Every Child has the Right to Acquire a Nationality Implementation Conclusion

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653 653 654 654 655 655 657 659 659 659 661 662

663 663 664 665 669 672 675 676 677 678 679 679 681 681 682 683 684 684 685 686 688 690

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Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service Introduction The Position of Article 25 within the Covenant Scheme Interaction between Article 25 and Other Covenant Provisions Chapter Outline ‘Every Citizen Shall have the Right and the Opportunity, Without any of the Distinctions Mentioned in Article 2 and Without Unreasonable Restrictions’ Without Any of the Distinctions Mentioned in Article 2 Without Unreasonable Restrictions (a) To Take Part in the Conduct of Public Affairs, Directly or Through Freely Chosen Representatives Direct and Indirect Participation The Manner of Participation Engagement in Policy Adverse Effect Public Political Life of the Nation (b) To Vote and to be Elected at Genuine Periodic Elections Common Stipulations Electoral System Requirements Prisoners Political Affiliation Integrity of Processes and Proceedings Language Proficiency Party Affiliation as a Condition of Candidacy Minimum Number of Supporters for Nomination of a Candidate Requirement to Declare Community Affiliation Conflict of Interest (c) To Have Access, on General Terms of Equality, to Public Service in His Country ‘General Terms of Equality’ Affirmative Action Procedural Fairness in Disciplinary Proceedings Dismissal of a Judge as an Attack on the Independence of the Judiciary Appropriate Remedies Implementation Conclusion

721 721 722 723 724 725 726 727

Article 26: Equality before the Law Equal Protection of the Law Introduction Key Elements of Article 26 Chapter Outline Equality before the Law and Equal Protection of the Law Equality before the Law Equal Protection of the Law

729 729 729 730 730 730 731

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Without Discrimination (Reasonable and Objective Criteria) Early Development Sample Cases in which Differential Treatment was Found to Constitute Discrimination Sample Cases in which Differential Treatment was Not Found to Constitute Discrimination Indirect Discrimination/Discrimination in the Failure to Differentiate Special Measures, Affirmative Action and Reasonable Accommodation Discriminatory Purpose or Intent Issues of Proof in Discrimination Cases Situations in Question Must be Equivalent Relevant Characteristic The Author Must be in the Relevant Class Status of Victim Onus of Proof Grounds of Discrimination Relevance of the Ground and Subject Matter of Differentiation Race/Colour/Ethnic Origin Sex, Sexual Orientation, Gender Identity, Transgender Status The Equal Right of Men and Women to the Enjoyment of Covenant Rights Discrimination on Grounds of Sex and Marital Status in Social Security Legislation Discrimination on Grounds of Sex in Other Contexts Sexual Orientation, Gender Identity, Transgender Status Language Religion School Funding Registration of a Religious Order Religious Practice Alternatives to Military Service Political or Other Opinion National or Social Origin, Nationality and Citizenship Property Birth Other Status Marital Status Age Disability Miscellaneous Implementation Conclusion

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732 732 733 736 738 742 744 745 745 747 747 748 749 750 750 752 754 754 755 757 759 766 768 769 769 770 772 774 775 778 779 780 780 780 781 782 783 786

Contents Article 27: Ethnic, Religious and Linguistic Minorities Introduction Major Milestones Interaction between Article 27 and Other Covenant Provisions Chapter Outline Properties of Relevant ‘Minorities’ and the Significance of ‘Belonging’ Meaning of ‘Minority’ Ethnic Minorities Linguistic Minorities Religious Minorities ‘Belonging’ to Such Minorities The Elements of Violation of Article 27 Reasonable and Objective Justification/Consistency with the Covenant Interference So Substantial as to Amount to the Denial of Article 27 Rights Effective Participation of Members of Minority Communities in Decisions which Affect Them Resolution of Conflict Affecting Minority Groups Conflict between the Interests of the Minority Group and Those of an Individual Member Conflict between the Interests of Different Groups within a Minority in the State Regulation of Minority Resources Conflict between State/Private Interests and Those of the Minority Group in the Exploitation of Natural Resources Evidential Issues Implementation Conclusion Bibliography List of Concluding Observations (to Reporting States) by Human Rights Committee Sessions International Covenant on Civil and Political Rights Index

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FO REWORD

The International Covenant on Civil and Political Rights has been in force for over forty years. During this period, the Covenant has become the primary place of reference for the universal standards of civil and political rights. While the Universal Declaration retains pride of place as the seminal source of international human rights law generally, the Covenant is where one goes to find the details of universal civil and political rights standards in a legally binding instrument, with its bare text having been given meaning in depth through interpretation and application by the Human Rights Committee. In its early years, the Committee was often handicapped in this work by the Cold War divide, which, for example, contributed greatly to the brevity and lack of detail of its General Comments. But since then it has become much easier and the Committee has made great progress in spelling out the substance of the Covenant’s guarantees in its practice. This practice has consisted primarily of Concluding Observations made by the Committee on the civil and political rights record of states on the basis of their periodic reports, now over many cycles of reporting, and of Views adopted by it on compliance by states with their Covenant obligations in response to communications brought by individuals against them. This practice has provided a rich source for the Committee’s latest General Comments, which set out the scope and content of the rights guaranteed in considerable detail. The outcome of the Committee’s work has been standards that for the most part set the bar for compliance with civil and political rights at a high level. To give just one example, the Committee has taken strong positions on the right to life, including establishing a procedural obligation to investigate the taking of life and, in its latest General Comment No. 36, extending that right to socio-economic issues. It has also displayed a clear lack of sympathy for the death penalty, within the limits of the text of Article 6. Although the Committee’s interpretations of the Covenant are not legally binding, they have in practice been accepted and followed, with States Parties only rarely questioning them; the most noticeable on-going exception concerning the Committee’s General Comment No. 24 on Reservations, to which three key states did voice their objections. It follows from the above that it is of great importance that there are high quality monographs in place that analyse and critique the content of the Covenant xxv

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guarantee as it has evolved. Practitioners need such texts, as do teachers, students and others whose work or interests require this. Fortunately, the present book well serves this need, and does so outstandingly. It offers a comprehensive account and evaluation of the civil and political rights standards in the Covenant. It does so on the basis mainly of the practice of the Human Rights Committee, although it also takes account of the Covenant travaux préparatoires and of UN special procedures reports and other UN relevant sources. Considerable reference also is made, very helpfully, to the jurisprudence and other practice of regional human rights systems, particularly the European, Inter-American and African ones. David Harris Professor Emeritus and Co-Director Human Rights Law Centre, School of Law, University of Nottingham

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PR E FAC E

Human rights scholars tend to focus on particular rights which spark their interest. My research some twenty years ago on freedom of thought, conscience and religion was launched by some unplanned engagement in advocacy and trial observation in the Cold War era. A recurring challenge since has been to grapple with international human rights law across a broad spectrum, a task made all the more confronting by the sheer scale and almost fractal complexity of the network of declarations, conventions and other instruments which the subject encompasses. This work spans all rights to be guaranteed under the International Covenant on Civil and Political Rights, one of the centre-piece conventions within the UN human rights system. It describes how the constituent elements of the Covenant integrate within a composite scheme of rights protection, across the full suite of civil and political rights. The first purpose of this work is to assist any reader familiar with one particular right to understand its relationship with related rights. Its second aim is to mark the extraordinary achievements of the Covenant in spite of its imperfections. It is remarkable for turning the non-binding framework established by the 1948 Universal Declaration of Human Rights into detailed obligations of immediately binding effect, intended for everyone, across (now) 172 States Parties of diverse constitutional, ideological and religious variety. Many specialist conventions have also emanated from the Covenant. Its careful design, in the allocation of the burden of minimum standards, and in an achievable balance between prescription and domestic choice in the mode of implementation, has contributed to successful ratification on a global scale. However, the effectiveness of the Covenant will only ever be as good as its domestic implementation. The third driver for this work is, therefore, to convey the expectations for implementation expressed by the Human Rights Committee, the key monitoring body established under the Covenant. Detailed coverage of the requirements of Covenant implementation has not been prominent in the literature. It is especially important as a means of measuring compliance, whether for governments in policy modelling or for those seeking to secure more effective protection, extending well beyond the crude indicia of human rights pathology signalled by repeated instances of violation. Without domestic implementation Covenant rights would be unsupported by remedies, and offend the assumption familiar to first year law students and chancery xxvii

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practioners in the maxim ubi jus ibi remedium. The fourth purpose will be evident from what has gone before. It is to present the Covenant as single codification of integrated and interconnected rights, each with specific scope and differentiation from related rights, which coexist in relationships of interdependence and mutual reinforcement. The reality is that rights are rarely enjoyed in isolation, and most human rights violations occur in multiples. The hope is that this work will demonstrate the range of rights capable of supporting claims from different vantage points. The personal autonomy and self-identity of individuals are realised by a combination of privacy, non-discrimination and the expressive freedoms, and, where necessary, the freedom from cruel, inhuman or degrading treatment. Personal safety and integrity are secured by a combination of the rights to life, liberty and security, freedom of movement, the prohibitions against torture, and against slavery and similar practices. The war against human trafficking and other forms of exploitation of the vulnerable typically has as its concern at least status-based discrimination, violation of family life, loss of liberty, failure to provide the protection required for children, and the right to recognition of victims as persons before the law. In short, the Covenant provides protection through a variety of overlapping and unifying means. This work aims to draw this out. It is written at a time when the UN is under extreme financial and other pressures. Proposals are occasionally made for reform of the UN human rights system, including the Covenant. This book, finally, aims to present the Covenant with its imperfections, as well as its obvious and less conspicuous advantages, so that its merits at least are not unduly sacrificed in reform proposals. Of the many people who have kindly supported this venture my greatest debt of gratitude is owed to my immediate family. I am also deeply indebted to the College of Law at the Australian National University for the facilities and collegiality provided under the auspices of a Visiting Fellowship since this work began in 2017, and to Wolfson College Cambridge, which before that provided a similar Fellowship for early research. The special support I received from David Harris is testified by his kind observations in the Foreword. As ever the editorial work of the Cambridge University Press has been outstanding, with special thanks to Marianne Nield, Chloe Quinn and Catherine Smith, not least for the editorial stamina which a work of this length demanded, and for skilfully overseeing this project from its inception Finola O’Sullivan, Editorial Director Law.

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TAB L E O F C A S E S ( V I E W S O F T H E H U M A N R I G H T S COMMITTEE)

A v. Australia, CCPR/C/59/D/560/1993 (1997), 3 April 1997, 255 A v. New Zealand, CCPR/C/66/D/754/1997, 3 August 1999, 258–9 A.H.G. v. Canada, CCPR/C/113/D/2091/2011, 25 March 2015, 199, 200 A.K. and A.R. v. Uzbekistan, CCPR/C/95/D/1233/2003, 31 March 2009, 571 A.P. v. Russian Federation, CCPR/C/107/D/1857/2008, 28 March 2013, 718 A.P.L. v d.M. v. Netherlands, CCPR/C/48/D/478/1991, 26 July 1993, 741 A.R.J. v. Australia, CCPR/C/60/D/692/1996, 28 July 1997, 425 A.S. v. Canada, CCPR/C/12/D/68/1980, 31 March 1981, 636 A.S. v. Nepal, CCPR/C/115/D/2077/2011, 6 November 2015, 293, 306, 461, 487 A.W.P. v. Denmark, CCPR/C/109/D/1879/2009, 1 November 2013, 62 Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001, 80, 376, 378, 817 Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015, 293, 299, 424 Acosta v. Uruguay, Communication No. 110/1981 (31 March 1983), Supp. No. 40 (A/39/40) at 169 (1984), 29 March 1984, 213 Aduayom et al. v. Togo, CCPR/C/51/D/422–424/1990, 12 July 1996, 722 Agazade and Jafarov v. Azerbaijan, CCPR/C/118/D/2205/2012, 27 October 2016, 551 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004, 187, 362 Albareda v. Uruguay, CCPR/C/103/D/1637/2007, 1757&1765/2008, 24 October 2011, 699, 738, 780 Alegre v. Peru, CCPR/C/85/D/1126/2002, 28 October 2005, 61 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013, 601, 605–6, 609 Alger v. Australia, CCPR/C/120/D/2237/2013, 13 July 2017, 712 Al-Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013, 276, 468, 470 Allakulov v. Uzbekistan, CCPR/C/120/D/2430/2014, 19 July 2017, 386, 492, 497 Althammer et al. v. Austria, CCPR/C/78/D/998/2001, 8 August 2003, 739, 740 Amarasinghe v. Sri Lanka, CCPR/C/120/D/2209/2012, 13 July 2017, 254 Aminov v. Turkmenistan, CCPR/C/117/D/2220/2012, 14 July 2016, 299 xxix

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Aouali et al. v. Algeria, CCPR/C/109/D/1884/2009, 18 October 2013, 199, 488, 641 Araujo-Jongen v. Netherlands, CCPR/C/49/D/418/1990, 22 October 1993, 741, 755 Arenz et al. v. Germany, CCPR/C/80/D/1138/2002, 24 March 2004, 616 Arutyunyan v. Uzbekistan, CCPR/C/80/D/917/2000, 29 March 2004, 196 Asensi v. Spain, CCPR/C/92/D/1413/2005, 25 March 2008, 383 Ashurov v. Tajikistan, CCPR/C/89/D/1348/2005, 20 March 2007, 191, 384 Askarov v. Kyrgyzstan, CCPR/C/116/D/2231/2012, 31 March 2016, 400 Atachahua v. Peru, CCPR/C/56/D/540/1993, 25 March 1996, 666 Atasoy and Sarkut v. Turkey, CCPR/C/104/D/1853–1854/2008, 29 March 2012, 21–2, 509 Aumeeruddy-Cziffra et al. v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981, 98, 104, 463, 483, 636, 649, 701, 748, 757–8, 776 Avellanal v. Peru, Communication No. 202/1986, Supp. No. 40 (A/44/40) at 196, 375 B.d.B. et al. v. Netherlands, Communication No. 273/1989, A/44/40 at 286, 30 March 1989, 733, 747–8 Baban v. Australia, CCPR/C/78/D/1014/2001, 6 August 2003, 574 Babkin v. Russian Federation, CCPR/C/92/D/1310/2004, 3 April 2008, 425 Bahamonde v. Equatorial Guinea, CCPR/C/49/D/468/1991, 20 October 1993, 249, 376, 390, 774 Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003, 255–6, 276, 466, 638, 673, 680 Bakur v. Belarus, CPR/C/114/D/1902/2009, 15 July 2015, 263 Ballantyne et al. v. Canada, CCPR/C/47/D/359/1989 and 385/1989/Rev.1, 18 October 1990, 568, 767, 796, 799, 800 Bandajevsky v. Belarus, CCPR/C/86/D/1100/2002, 28 March 2006, 299, 396 Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, 24 July 2008, 717, 723–4 Barbato et al. v. Uruguay, Communication No. 84/1981, CCPR/C/OP/2 at 112, 29 March 1982, 161 Barkovsky v. Belarus, CCPR/C/123/D/2247/2013, 13 July 2018, 298, 306 Baumgarten v. Germany, CCPR/C/78/D/960/2000, 31 July 2003, 433, 442 Bautista de Arellana v. Colombia, CCPR/C/55/D/563/1993, 27 October 1995, 79 Bazarov et al. v. Uzbekistan, CCPR/C/87/D/959/2000 (2006), 14 July 2006, 268 Belyatsky et al. v. Belarus, CCPR/C/90/D/1296/2004, 24 July 2007, 623, 678 Bequio v. Uruguay, Communication No. 88/1981, CCPR/C/OP/2 at 118 (1990), 29 March 1983, 298 Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016, 311, 418

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Beydon et al. v. France, CCPR/C/85/D/1400/2005, 31 October 2005, 707 Bhandari v. Nepal, CCPR/C/112/D/2031/2011, 29 October 2014, 146 Bithashwiwa and Mulumba v. Zaire, CCPR/C/37/D/241/242/1987, 2 November 1989, 306 Blancov v. Nicaragua, CCPR/C/51/D/328/1988 (1994), 20 July 1994, 263 Blessington and Elliot v. Australia, CCPR/C/112/D/1968/2010, 22 October 2014, 207, 314, 676 Blom v. Sweden, Communication No. 191/1985, CCPR/C/OP/2 at 216, 4 April 1988, 746 Bobrov v. Belarus, CCPR/C/122/D/2181/2012, 27 March 2018, 294, 296, 299 Bolívar v. Venezuela, CCPR/C/112/D/2085/2011, 16 October 2014, 387, Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002, 295, 298, 307 Borzov v. Estonia, CCPR/C/81/D/1136/2002, 26 July 2004, 731 Brinkhof v. Netherlands, CCPR/C/48/D/402/1990, 27 July 1993, 748 Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196, 9 April 1987, 732–3, 735, 745, 751, 755 Brokova v. Czech Republic, CCPR/C/73/D/774/1997, 31 October 2001, 734 Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006, 213–14, 289, 313, 675 Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999, 295–6, 298–9 Brun v. France, CCPR/C/88/D/1453/2006, 18 October 2006, 708 Buckle v. New Zealand, CCPR/C/70/D/858/1999, 25 October 2000, 485, 643, 682 Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018, 349, 351 Bulgakov v. Ukraine, CCPR/C/106/D/1803/2008, 29 October 2012, 461, 472 Burgoa v. Bolivia, CCPR/C/122/D/2628/2015, 28 March 2018, 701 Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981, 131, 617 Burrell v. Jamaica, CCPR/C/53/D/546/1993, 18 July 1996, 152 Busyo et al. v. Congo, CCPR/C/78/D/933/2000, 31 July 2003, 113–14, 724 Bwalya v. Zambia, CCPR/C/48/D/314/1988, 14 July 1993, 249, 700, 716, 774 Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, 1 November 2004, 640 C v. Australia, CCPR/C/72/D/832/1998, 25 July 2001, 781 C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002, 200, 255, 290–1 C v. Australia, CCPR/C/119/D/2216/2012, 28 March 2017, 455, 646–7, 761 Cabal and Bertran v. Australia, CCPR/C/78/D/1020/2001, 7 August 2003, 175 Cagas et al. v. Philippines, CCPR/C/73/D/788/1997, 23 October 2001, 397 Campbell v. Jamaica, CCPR/C/64/D/618/1995, 3 November 1998, 294–5, 297–9 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997, 290, 295, 297, 299, 309, 395 Canepa v. Canada, CCPR/C/59/D/558/1993, 3 April 1997, 347, 466, 638

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Cariboni v. Uruguay, Communication No. 159/1983, Supp. No. 40 (A/43/40) at 184 (1988), 27 October 1987, 296, 308, 314 Castañeda v. Mexico, CCPR/C/108/D/2202/2012, 18 July 2013, 547 Castedo v. Spain, CCPR/C/94/D/1122/2002, 20 October 2008, 393 Castell-Ruiz et al. v. Spain, CCPR/C/86/D/1164/2003, 17 March 2006, 746–7 Cedeño v. Venezuela, CCPR/C/106/D/1940/2010, 29 October 2012, 390, 398 Celiberti de Casariego v. Uruguay, Communication No. 56/1979, CCPR/C/OP/ 1 at 92 (1984), 29 July 1981, 131 Chambala v. Zambia, CCPR/C/78/D/856/1999, 15 July 2003, 251 Chani v. Algeria, CCPR/C/116/D/2297/2013, 11 March 2016, 254 Chaulagain v. Nepal, CCPR/C/112/D/2018/2010, 28 October 2014, 146, 198 Chikunova v. Uzbekistan, CCPR/C/89/D/1043/2002, 16 March 2007, 403 Chisanga v. Zambia, CCPR/C/85/D/1132/2002, 18 October 2005, 212, 422 Chiti v. Zambia, CCPR/C/105/D/1303/2004, 26 July 2012, 161, 489, 641 Chongwe v. Zambia, CCPR/C/70/D/821/1998, 25 October 2000, 247 Choudhary v. Canada, CCPR/C/109/D/1898/2009, 28 October 2013, 80, 151 Cochet v. France, CCPR/C/100/D/1760/2008, 21 October 2010, 440 Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994, 464, 472–3, 519 Coleman v. Australia, CCPR/C/87/D/1157/2003, 17 July 2006, 574, 595 Conteris v. Uruguay, Communication No. 139/1983, Supp. No. 40 (A/40/40) at 196 (1985), 17 July 1985, 190–1, 288 Coronel et al. v. Colombia, CCPR/C/76/D/778/1997, 24 October 2002, 461, 487 Correia de Matos v. Portugal, CCPR/C/86/D/1123/2002, 28 March 2006, 409 Costa v. Spain, CCPR/C/92/D/1745/2007, 1 April 2008, 709 Costa v. Uruguay, Communication No. 198/1985, Supp. No. 40 (A/42/40) at 170 (1987), 9 July 1987, 722, 743, 775 Czernin v. Czech Republic, CCPR/C/83/D/823/1998, 29 March 2005, 385 D.T. v. Canada, CCPR/C/117/D/2081/2011 15 July 2016, 484 Danning v. Netherlands, Communication No. 180/1984, CCPR/C/OP/2 at 205, 9 April 1987, 732–3, 751, 755–6 Dassum and Dassum v. Ecuador, CCPR/C/116/D/2244/2013, 30 March 2016, 435 Dauphin v. Canada, A/64/40 vol. II (2009), Annex VII.SS, 427, 28 July 2009, 638 De Clippele v. Belgium, CCPR/C/77/D/1082/2002, 28 March 2003, 711 De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995, 451, 457, 644, 678, 685 De Gomez v. Peru, CCPR/C/78/D/981/2001, 22 July 2003, 437 De Groot v. Netherlands, CCPR/C/54/D/578/1994, 14 July 1995, 436 De León Castro v. Spain, CCPR/C/95/D/1388/2005, 19 March 2009, 261–2, 439 Dean v. New Zealand, CCPR/C/95/D/1512/2006, 29 March 2009, 260

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Debreczeny v. Netherlands, CCPR/C/53/D/500/1992, 3 April 1995, 720 Del Avellanal v. Peru, Communication No. 202/1986, Supp. No. 40 (A/44/40) at 196, 28 October 1988, 97, 758 Derksen v. Netherlands, CCPR/C/80/D/976/2001, 1 April 2004, 741 Devian and Narrain et al. v. Mauritius, CCPR/C/105/D/1744/2007, 27 July 2012, 705, 719 Díaz v. Spain, CCPR/C/82/D/988/2001, 3 November 2004, 747 Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000, 48, 708, 744, 767, 799, 800, 818 Dissanayake v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008, 573, 705, 714, 717 Djebbar and Chihoub v. Algeria, CCPR/C/103/D/1811/2008, 31 October 2011, 672 Domukovsky et al. v. Georgia, CCPR/C/62/D/626/1995, CCPR/C/62/D/627/ 1995, 6 April 1998, 191, 286 Dorofeev v. Russian Federation, CCPR/C/111/D/2041/2011, 11 July 2014, 407 Drobek v. Slovakia, CCPR/C/60/D/643/1995, Views 14 July 1997, 734 Dudko v. Australia, CCPR/C/90/D/1347/2005, 23 July 2007, 377 Dugin v. Russian Federation, CCPR/C/81/D/815/1998, 5 July 2004, 378 Dumont v. Canada, CCPR/C/98/D/1467/2006, 16 March 2010, 423 E.B. v. New Zealand, CCPR/C/89/D/1368/2005, 16 March 2007, 387, 644 E.V. v. Belarus, CCPR/C/112/D/1989/2010, 30 October 2014, 381 Edwards v. Jamaica, CCPR/C/60/D/529/1993, 28 July 1997, 292 El Dernawi v. Libya, CCPR/C/90/D/1143/2002, 20 July 2007, 341, 639, 683 El-Hichou v. Denmark, CCPR/C//99/D/1554/2007, 22 July 2010, 639, 681 El Hojouj Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014, 334, 449, 457, 494 El-Megreisi v. Libya, CCPR/C/50/D/440/1990, 23 March 1994, 196 Ernazarov v. Kyrgyzstan, CCPR/C/113/D/2054/2011, 25 March 2015, 162 Esergepov v. Kazakhstan, CCPR/C/116/D/2129/2012, 29 March 2016, 572 Esposito v. Spain, CCPR/C/89/D/1359/2005, 20 March 2007, 206 Estrella v. Uruguay, Communication No. 74/1980, CCPR/C/OP/2 at 93 (1990), 29 March 1983, 296, 308, 491 Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003, 294–5, 297 F.A. v. France, CCPR/C/123/D/2662/2015, 16 July 2018, 99, 536, 740, 770–1 F.J. et al. v. Australia, CCPR/C/116/D/2233/2013, 22 March 2016, 276 F.K.A.G. et al. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013, 257, 291, 673 Fanali v. Italy, Communication No. 75/1980, CCPR/C/OP/2 at 99 (1990), 31 March 1983, 61 Fardon v. Australia, CCPR/C/98/D/1629/2007, 18 March 2010, 252, 261–2, 344, 438

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Faure v. Australia, CCPR/C/85/D/1036/2001, 31 October 2005, 232, 237 Faurisson v. France, CCPR/C/58/D/550/1993(1996), 8 November 1996, 558, 566–7, 582–4 Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012, 557, 575, 763 Fei v. Colombia, CCPR/C/53/D/514/1992 (1995), 4 April 1995, 655 Fijalkowska v. Poland, CCPR/C/84/D/1061/2002, 26 July 2005, 259 Filipovich v. Lithuania, CCPR/C/78/D/875/1999, 4 August 2002, 438, 441 Foin v. France, CPR/C/67/D/666/1995, 9 November 1999, 235, 737, 773 Fong v. Australia, CCPR/C/97/D/1442/2005, 23 October 2009, 160 Foumbi v. Cameroon, CCPR/C/112/D/2325/2013, 28 October 2014, 321 Francis v. Jamaica, CCPR/C/54/D/606/1994 (1995), 25 July 1995, 210–11, 212–13 G. v. Australia, CCPR/C/119/D/2172/2012, 2 December 2017, 20, 455, 473, 646–7, 762 G.T. v. Australia, CCPR/C/61/D/706/1996, 4 November 1997, 149 Gamarra v. Paraguay, CCPR/C/104/D/1829/2008, 176 García v. Colombia, CCPR/C/71/D/687/1996 (2001), 3 April 2001, 199, 487, 645 García v. Ecuador, CCPR/C/43/D/319/1988, 5 November 1991, 365 Gatilov v. Russian Federation, CCPR/C/120/D/2171/2012, 13 July 2017, 490 Gauthier v. Canada, CCPR/C/65/D/633/1995, 5 May 1999, 547, 572, 615 Gavrilin v. Belarus, CCPR/C/89/D/1342/2005, 28 March 2007, 321, 441 Gedumbe v. Congo, CCPR/C/75/D/641/1995, 9 July 2002, 726, 775 Georgopoulos et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010, 641 Gilboa v. Uruguay, CCPR/C/OP/2 at 176 (1990), 1 November 1985, 288, 309 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002, 28, 42, 53, 698, 711, 779 Giri et al. v. Nepal, CCPR/C/101/D/1761/2008, 24 March 2011, 123 Giry v. Dominican Republic, Communication No. 193/1985, Supp. No. 40 (A/ 45/40) at 38 (1990), 20 July 1990, 366 Gonçalves et al. v. Portugal, CCPR/C/98/D/1565/2007, 18 March 2010, 738 Gonzalez v. Guyana, CCPR/C/98/D/1246/2004 25 March 2010, 386, 464 Gonzalez del Rio v. Peru, CCPR/C/46/D/263/1987, 28 October 1992, 340 Gorji-Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005, 254, 279, 299, 310, 338, 687, 715 Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 20 July 2000, 383, 398, 403 Griffiths v. Australia, CCPR/C/112/D/1973/2010, 21 October 2014, 256 Grioua v. Algeria, CCPR/C/90/D/1327/2004, 10 July 2007, 448 Grishkovtsov v. Belarus, CCPR/C/113/D/2013/2010, 1 April 2015, 192 Guesdon v. France, CCPR/C/39/D/219/1986, 25 July 1990, 413, 545 Gueye et al. v. France, CCPR/C/35/D/196/1985, 3 April 1989, 733–4, 775

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Gunan v. Kyrgyzstan, CCPR/C/102/D/1545/2007, 25 July 2011, 156 Guneththige and Guneththige v. Sri Lanka, CCPR/C/113/D/2087/2011, 30 March 2015, 301 H.A.E.D.J. v. Netherlands, CCPR/C/37/D/297/1988, 30 October 1989, 773 H.G. B. and S.P. v. Trinidad and Tobago, Communication No. 268/1987, CCPR/ C/37/D/268/1987 (1989), 4 December 1987, 134 Hak-Chul Shin v. Korea, CCPR/C/80/D/926/2000, 16 March 2004, 570 Hamilton v. Jamaica, CCPR/C/66/D/616/1995, 28 July 1999, 744 Hammel v. Madagascar, CCPR/C/29/D/155/1983, 3 April 1987, 365 Haraldsson and Sveinsson v. Iceland, CCPR/C/91/D/1306/2004, 24 October 2007, 733, 735, 778 Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018, 519, 522, 536, 772 Hendriks, Sr. v. Netherlands, CCPR/C/33/D/201/1985, 27 July 1988, 636, 654 Henry (Nicholas) v. Jamaica, CCPR/C/64/D/610/1995, 21 October 1998, 302 Henry (Raphael) v. Jamaica, CCPR/C/43/D/230/l987 1 November 1991, 419 Henry and Everald Douglas v. Jamaica, CCPR/C/57/D/571/1994, 25 July 1996, 302 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999, 293, 294, 296, 298–9, 307, 376 Hermoza v. Peru, Communication No. 203/1986, Supp. No. 40 (A/44/40) at 200, 4 November 1988, 387 Hertzberg et al. v. Finland, Communication No. 61/1979, CCPR/C/OP/1 at 124 (1985), 2 April 1982, 15, 545, 574 Hicks v. Australia, CCPR/C/115/D/2005/2010, 5 November 2015, 262–3, 344 Hmeed et al. v. Libya, CCPR/C/112/D/2046/2011, 17 October 2014, 489, 641 Hoofdman v. Netherlands, CCPR/C/64/D/602/1994, 25 November 1998, 755–6 Hopu and Bessert v. France, CCPR/C/60/D/549/1993/Rev.1, 29 July 1997, 637, 819 Horvath v. Australia, CCPR/C/110/D/1885/2009, 27 March 2014, 82, 85 Howard v. Canada, CCPR/C/84/D/879/1999, 26 July 2005, 798, 809, 817 Hudaybergenov v. Turkmenistan, CCPR/C/115/D/2222/2012, 29 October 2015, 294, 299 Hudoyberganova v. Uzbekistan, CCPR/C/82/D/931/2000, 5 November 2004, 506–7, 536 I.P. v. Finland, CCPR/C/48/D/450/1991, 26 July 1993, 475 ‘I Elpida’ v. Greece, CCPR/C/118/D/2242/2013, 3 November 2016, 641 Ignatane v. Latvia, CCPR/C/72/D/884/1999, 25 July 2001, 701, 718, 767 Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014, 351, 470–1, 638 Irving v. Australia, CCPR/C/74/D/880/1999, 1 April 2002, 423 Iskiyaev v. Uzbekistan, CCPR/C/95/D/1418/2005, 20 March 2009, 294, 309–10

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J.A.M.B-R. v. Netherlands, CCPR/C/50/D/477/1991 (1994), 7 April 1994, 748, 755 J.B. et al. v. Canada, Communication No. 118/1982, Supp. No. 40 (A/41/40) at 151, 618, 627 J.P. v. Canada, CCPR/C/43/D/446/1991, 7 November 1991, 21, 235 J.R.T. and W.G. Party v. Canada, Communication No. 104/1981, CCPR/C/OP/2 at 25 (1984), 6 April 1983, 566, 582–3 Jacobs v. Belgium, CCPR/C/81/D/943/2000, 7 July 2004, 722, 743 Jalloh v. Netherlands, CCPR/C/74/D/794/1998, 26 March 2002, 257 Jansen-Gielen v. Netherlands, CCPR/C/71/D/846/1999, 3 April 2001, 378 Japparow v. Turkmenistan, CCPR/C/115/D/2223/2012, 29 October 2015, 294 Järvinen v. Finland, CCPR/C/39/D/295/1988 (1990), 25 July 1990, 773 Jazairi v. Canada, CCPR/C/82/D/958/2000, 26 October 2004, 750, 785 Jenny v. Austria, CCPR/C/93/D/1437/2005, 9 July 2008, 393 Jeong et al. v. Korea, CCPR/C/101/D/1642–1741/2007, 24 March 2011, 508, 773 Jeong-Eun Lee v. Korea, CCPR/C/84/D/1119/2002, 20 July 2005, 623–4, 629 Jessop v. New Zealand, CCPR/C/101/D/1758/2008, 29 March 2011, 412 Jijón v. Ecuador, CCPR/C/44/D/277/1988 at 76, 26 March 1992, 424 Johnson (Clive) v. Jamaica, CCPR/C/64/D/592/1994, 25 November 1998, 210, 301, Johnson (Colin) v. Jamaica, CCPR/C/64/D/653/1995, 3 December 1998, 212 Johnson (Errol) v. Jamaica, CCPR/C/56/D/588/1994, 22 March 1996, 211 Jong-Cheol v. Korea, CCPR/C/84/D/968/2001, 27 July 2005, 562, 572 Jong-nam Kim et al. v. Korea, CCPR/C/106/D/1786/2008, 25 October 2012, 510 Joslin et al. v. New Zealand, CCPR/C/75/D/902/1999, 17 July 2002, 454, 472, 646, 761 Judge v. Canada, CCPR/C/78/D/829/1998, 5 August 2002, 18, 19, 22, 159 Jumaa v. Libya, CCPR/C/104/D/1755/2008, 19 March 2012, 377 Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014, 461 K.L. v. Denmark, Communication No. 81/1980, CCPR/C/OP/1, 27 March 1981, at 28, 60 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003/Rev.1, 24 October 2005, 93–4, 202, 481, 665 Kaba v. Canada, CCPR/C/98/D/1465/2006, 25 March 2010, 203–4, 666 Käkkäläjärvi et al. v. Finland, CCPR/C/124/D/2950/2017, 2 November 2018, 28, 695, 707 Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003, 289, 507, 774 Karakurt v. Austria, CCPR/C/74/D/965/2000 4 April 2002, 709, 776 Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108 & 1121/2002, 27 March 2007, 415 Karker v. France, CCPR/C/70/D/833/1998, 26 October 2000, 341, 365

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Karttunen v. Finland, CCPR/C/46/D/387/1989, 23 October 1992, 421 Kashtanova and Slukina v. Uzbekistan, CCPR/C/118/D/2106/2011, 28 October 2016, 674 Katashynskyi v. Ukraine, CCPR/C/123/D/2537/2015, 25 July 2018, 712 Katsora v. Belarus, CCPR/C/99/D/1377/2005, 19 July 2010, 559, 625, Kavanagh v. Ireland, CCPR/C/71/D/819/1998, 4 April 2001, 375, 388, 736 Kazantzis v. Cyprus, CCPR/C/78/D/972/2001, 7 August 2003, 85 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002, 79, 295–7, 307, 380 Kerrouche v. Algeria, CCPR/C/118/D/2128/2012, 3 November 2016, 492 Keun-Tae Kim v. Korea, CCPR/C/64/D/574/1994, 4 January 1999, 569, 570, 625 Khadzhiev v. Turkmenistan, CCPR/C/113/D/2079/2011, 1 April 2015, 491 Khadzhiyev and Muradova v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018, 398 Khalilova v. Tadjikistan, CCPR/C/83/D/973/2001, 30 March 2005, 286, 398 Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011, 400 Khostikoev v. Tajikistan, CCPR/C/97/D/1519/2006, 22 October 2009, 394 Kim v. Uzbekistan, CCPR/C/122/D/2175/2012, 4 April 2018, 263, Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993, 18, 159, 209 Kirsanov v. Belarus, CCPR/C/110/D/1864/2009, 20 March 2014, 601, 606, 609 Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988, 48, 806–7, 812, 822 Kivenmaa v. Finland, CCPR/C/50/D/412/1990, 31 March 1994, 595, 603, Kodirov v. Uzbekistan, CCPR/C/97/D/1284/2004, 20 October 2009, 191 Koktish v. Belarus, CCPR/C/111/D/1985/2010, 24 July 2014, 546, 553, Komarovski v. Turkmenistan, CCPR/C/93/D/1450/2006, 24 July 2008, 495 Koreba v. Belarus, CCPR/C/100/D/1390/2005, 25 October 2010, 311, 418 Kovalenko v. Belarus, CCPR/C/108/D/1808/2008, 17 July 2013, 600 Kovaleva et al. v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012, 198–9 Kozlov v. Belarus, CCPR/C/111/D/1986/2010, 24 July 2014, 564 Krasnov v. Kyrgyzstan, CCPR/C/101/D/1402/2005, 29 March 2011, 403 Kruyt-Amesz et al. v. Netherlands, CCPR/C/56/D/664/1995, 25 March 1996, 436 Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011, 548, 624, 628 Kurbanov and Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003, 415 Kurbonov v. Tajikistan, CCPR/C/86/D/1208/2003, 16 March 2006, 385, 415 Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014, 603, 606 L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, 29 March 2011, 80, 94, 202, 481 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011, 98, 201, 493, 663, 665

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L.P. v. Czech Republic, Communication No. 946/2000, A/57/40 at 294, 25 July 2002, 461, 485, 497 L.T.K. v. Finland, Communication No. 185/1984, CCPR/C/OP/2 at 61 (1990), 9 July 1985, 21, 235 Laing v. Australia, CCPR/C/81/D/901/1999, 9 July 2004, 681 Lale and Blagojević v. Bosnia and Herzegovina, CCPR/C/119/D/2206/2012, 17 March 2017, 198 Länsman et al. v. Finland, CCPR/C/52/D/511/1992, 26 October 1994, 16, 54, 798–9, 800, 808, 809, 810, 815 Länsman et al. v. Finland, CCPR/C/58/D/671/1995, 30 October 1996, 798–9, 815 Lantsova v. Russian Federation, CCPR/C/74/D/763/1997, 26 March 2002, 161 Laptsevich v. Belarus, CCPR/C/68/D/780/1997, 13 April 2000, 570 Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006, 393, 397, 412 Lecraft v. Spain, Communication No. 1493/2006, A/64/40, vol. II (2009) Annex VII.FF, 295, 27 July 2009, 753 Lederbauer v. Austria, CCPR/C/90/D/1454/2006, 13 July 2007, 387 Leehong v. Jamaica, CCPR/C/66/D/613/1995, 12 August 1999, 247 Leghaei et al. v. Australia, CCPR/C/113/D/1937/2010, 26 March 2015, 471 Lerma v. Colombia, CCPR/C/102/D/1611/2007, 26 July 2011, 385 Leven v. Kazakhstan, CCPR/C/112/D/2131/2012, 21 October 2014, 505, 523 Lewis v. Jamaica, CCPR/C/60/D/708/1996, 17 July 1997, 310, 314 Lindgren et al. v. Sweden, Communications Nos 298/1988 and 299/1988, Supp. No. 40 (A/46/40) at 253 (1991), 9 November 1990, 769 Little v. Jamaica, CCPR/C/43/D/283/1988, 1 November 1991, 402 Litvin v. Ukraine, CCPR/C/102/D/1535/2006, 19 July 2011, 378 Love et al. v. Australia, CCPR/C/77/D/983/2001, 25 March 2003, 699, 738, 780 Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981, 103, 332, 343, 758, 805–8, 822 Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 26 March 1990 [13.3]; E.P. et al. v. Colombia, CCPR/C/39/D/318/1988, 25 July 1990, 45–6, 48, 798, 814 Lukyanchik v. Belarus, CCPR/C/97/D/1392/2005, 21 October 2009, 718 Luyeye v. Zaire, Communication No. 90/1981, CCPR/C/OP/2 at 124(1990), 21 July 1983, 80 Lyashkevich v. Uzbekistan, CCPR/C/98/D/1552/2007, 23 March 2010, 415 M.A. v. Italy, Communication No. 117/1981, Supp. No. 40 (A/39/40) at 190 (1984), 10 April 1984, 133, 621 M.A.B., W.A.T. and J.A.Y.T. v. Canada, CCPR/C/50/D/570/1993, 8 April 1994, 520 M.G. v. Germany, CCPR/C/93/D/1482/2006, 23 July 2008, 495 M.I. v. Sweden, CCPR/C/108/D/2149/2012, 25 July 2013, 186

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M.J.G. v. Netherlands, Communication No. 267/1987, CCPR/C/OP/2 at 74, 24 March 1988, 745 M.K. v. France, CCPR/C/37/D/222/1987, 8 November 1989, 800, 819 M.M.M. et al. v. Australia, CCPR/C/108/D/2136/2012, 25 July 2013, 291 M.S.P-B. v. Netherlands, CCPR/C/123/D/2673/2015, 25 July 2018, 645 Maalem and Maalem v. Uzbekistan, CCPR/C/123/D/2371/2014, 17 July 2018, 484, 680 Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004, 302, 347, 350, 467, 680, Maharjan v. Nepal, CCPR/C/105/D/1863/2009, 19 July 2012, 293, 299 Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000, 54, 798, 805, 808, 810, 813 Maksudov et al. v. Kyrgyzstan, CCPR/C/93/D/1461, 1462, 1476 & 1477/2006, 16 July 2008, 150 Malakhovsky and Pikul v. Belarus, CCPR/C/84/D/1207/2003, 26 July 2005, 518, 626 Maleki v. Italy, CCPR/C/66/D/699/1996, 27 July 1999, 406–7 Manuel v. New Zealand, CCPR/C/91/D/1385/2005, 18 October 2007, 261 Marais v. Madagascar, CCPR/C/OP/2 at 82, 24 March 1983, 295 Marcellana and Gumanoy v. Philippines, CCPR/C/94/D/1560/2007, 30 October 2008, 146, 248 Marinich v. Belarus, CCPR/C/99/D/1502/2006, 16 July 2010, 302, 388, 394, 398 Marouf v. Algeria, CCPR/C/110/D/1889/2009, 21 March 2014, 198 Maroufidou v. Sweden, CCPR/C/12/D/58/1979, 9 April 1981, 344, 359, 359–61, 436 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005, 263, 273, 338 Marshall v. Canada (Mikmaq Tribal Society), CCPR/C/43/D/205/l986 at 40, 4 November 1991, 48, 704, 706 Martínez v. Paraguay, CCPR/C/95/D/1407/2005, 27 March 2009, 643, 682, Martínez de Irujo v. Spain, CCPR/C/80/D/1008/2001 (2004), 30 March 2004, 98, 733, 779 Masserra et al. v. Uruguay, Communication No. R.1/5, Supp. No. 40 (A/34/40) at 124 (1979), 15 August 1979, 196–7 Masslotti and Baritussio v. Uruguay, Communication No. R.6/25, Supp. No. 40 (A/37/40) at 187, 26 July 1982, 80–1, 298–9 Matyakubov v. Turkmenistan, CCPR/C/117/D/2224/2012, 14 July 2016, 308 Mátyus v. Slovakia, Communication No. 923/2000, A/57/40 (Vol. II) at 257 (2002), 22 July 2002, 711 Mavlonov and Sa’di v. Uzbekistan, CCPR/C/95/D/1334/2004, 19 March 2009, 548, 800–1 Maya v. Nepal, CCPR/C/119/D/2245/2013, 17 March 2017, 95, 104, 249

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Mazou v. Cameroon, CCPR/C/72/D/630/1995, 26 July 2001, 725 Mbenge v. Zaire, CCPR/C/18/D/16/1977, 25 March 1983, 407 McCallum v. South Africa, CCPR/C/100/D/1818/2008, 25 October 2010, 197, 206, 288, 302, 309 Medjnoune v. Algeria, CCPR/C/87/D/1297/2004, 14 July 2006, 400 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016, 92–3, 164, 202, 482, 548, 783 Melnikov v. Belarus, CCPR/C/120/D/2147/2012, 14 July 2017, 263 Mihoubi v. Algeria, CCPR/C/109/D/1874/2009, 18 October 2013, 77 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990 (1994), 8 July 1994, 191, 251, 306, 390 Morael v. France, Communication No. 207/1986, Supp. No. 40 (A/44/40) at 210, 28 July 1989, 383, 399 Motta v. Uruguay, Communication 11/1977, CCPR/C/OP/1 at 54 (1984), 29 July 1980, 286 Muhonen v. Finland, Communication No. 89/1981, CCPR/C/OP/2 at 121, 8 April 1985, 423 Mukhtar v. Kazakhstan, CCPR/C/115/D/2304/2013, 6 November 2015, 295–6 Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994, 288, 292–3, 296, 571 Mukunto v. Zambia, CCPR/C/66/D/768/1997, 2 August 1999, 386 Müller and Engelhard v. Namibia, CCPR/C/74/D/919/2000, Views, 26 March 2002, 751, 758 Muteba v. Zaire, Communication No. 124/1982 (25 March 1983), Supp. No. 40 (A/39/40) at 182 (1984), 24 July 1984, 196, 286 Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010, 210, 306 N.K. v. Netherlands, CCPR/C/120/D/2326/2013, 18 July 2017, 479 N.T./Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007, 485, 642, 682 Naidenova et al. v. Bulgaria, CCPR/C/106/D/2073/2011, 30 October 2012, 489, 641 Nam v. Korea, CCPR/C/78/D/693/1996, 28 July 2003, 545 Nasheed v. Maldives, CCPR/C/122/D/2851/2016, 4 April 2018, 714 Nasir v. Australia, CCPR/C/116/D/2229/2012, 29 March 2016, 256 Nazarov v. Uzbekistan, CCPR/C/81/D/911/2000, 6 July 2004, 378 Neefs v. Netherlands, CCPR/C/51/D/425/1990, 15 July 1994, 757 Nenova et al. v. Libya, CCPR/C/104/D/1880/2009, 20 March 2012, 378 Nepomnyashchiy v. Russian Federation, CCPR/C/123/D/2318/2013, 17 July 2018, 763, 773 Ng v. Canada, CCPR/C/49/D/469/1991, 5 November 1993, 209 Ngambi v. France, CCPR/C/81/D/1179/2003 (2004), 9 July 2004, 475, 635 Nicholas v. Australia, CCPR/C/80/D/1080/2002, 19 March 2004, 431–2 Novaković v. Serbia, CCPR/C/100/D/1556/2007, 21 October 2010, 146

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Nurjanov v. Turkmenistan, CCPR/C/117/D/2225/2012, 15 July 2016, 424 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011, 254, 348–9, 350, 468 O.A. v. Denmark, CCPR/C/121/D/2770/2016, 7 November 2017, 187, 668 Obodzinsky v. Canada, CCPR/C/89/D/1124/2002, 19 March 2007, 200–1 Olmedo v. Paraguay, CCPR/C/104/D/1828/2008, 22 March 2012, 153 O’Neill and Quinn v. Ireland, CCPR/C/87/D/1314/2004, 24 July 2006, 736 Orazova v. Turkmenistan, CCPR/C/104/D/1883/2009, 20 March 2012, 338 Orejuela v. Colombia, CCPR/C/75/D/848/1999, 23 July 2002, 407 Ory v. France, CCPR/C/110/D/1960/2010, 28 March 2014, 341 Ostavari v. Korea, CCPR/C/110/D/1908/2009, 25 March 2014, 150 Oulajin and Kaiss v. Netherlands, CCPR/C/46/D/406/1990 and 426/1990, 23 October 1992, 741 P.L. v. Belarus, CCPR/C/102/D/1814/2008, 26 July 2011, 548 Paadar et al. v. Finland, CCPR/C/110/D/2102/2011, 26 March 2014, 798, 813, 816–17 Páez v. Colombia, CCPR/C/39/D/195/1985 (1990), 12 July 1990, 246–7, 721–2 Paksas v. Lithuania, CCPR/C/110/D/2155/2012, 25 March 2014, 382, 434, 705, 716 Pastukhov v. Belarus, CCPR/C/78/D/814/1998, 5 August 2003, 725 Patera v. Czech Republic, CCPR/C/75/D/946/2000, 25 July 2002, 61 Pauger v. Austria, CCPR/C/44/D/415/1990 at 122, 26 March 1992, 746 Pavlyuchenkov v. Russian Federation, CCPR/C/105/D/1628/2007, 20 July 2012, 294, 296, 298 Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011, 144, 486, 645 Peltonen v. Finland, CCPR/C/51/D/492/1992, 21 July 1994, 341 Peñarrieta et al. v. Bolivia, CCPR/C/OP/2 at 201 (1990), 2 November 1987, 191, 295, 299 Pennant v. Jamaica, CCPR/C/64/D/647/1995, 3 December 1998, 210 Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004, 378, 394 Pietraroia v. Uruguay, CCPR/C/12/D/44/1979, 27 March 1981, 700, 716 Pillai et al. v. Canada, CCPR/C/101/D/1763/2008, 25 March 2011, 186 Pinkney v. Canada, CCPR/C/OP/1 at 95 (1985), 29 October 1981, 310, 491 Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009, 80, 809, 811, 817, 822–3 Portorreal v. Dominican Republic, Communication No. 188/1984, Supp. No. 40 (A/43/40) at 207 (1988), 5 November 1987, 293, 306, 310 Pranevich v. Belarus, CCPR/C/124/D/2251/2013, 15 October 2018, 263 Pratt and Morgan v. Jamaica, CCPR/C/35/D/225/1987 6 April 1989, 209, 210 Prince v. South Africa, CCPR/C/91/D/1474/2006, 31 October 2007, 520, 740, 770, 804 Pryce v. Jamaica, CCPR/C/80/D/793/1998, 15 March 2004, 208

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Pustovalov v. Russian Federation, CCPR/C/98/D/1232/2003, 23 March 2010, 415 Pustovoit v. Ukraine, CCPR/C/110/D/1405/2005 (2014), 20 March 2013, 201 Q v. Denmark, CCPR/C/113/D/2001/2010, 1 April 2015, 742, 768 Quliyev v. Azerbaijan, CCPR/C/112/D/1972/2010, 16 October 2014, 297, 299, 379 R.A.A. and Z.M. v. Denmark, CCPR/C/118/D/2608/2015, 28 October 2016, 205 R.L.M. v. Trinidad and Tobago, CCPR/C/48/D/380/1989, 16 July 1993, 492 Rabbae et al. v. Netherlands, CCPR/C/117/D/2124/2011, 14 July 2016, 474, 586, 590 Radosevic v. Germany, CCPR/C/84/D/1292/2004, 22 July 2005, 234, 297 Ràfols v. Spain, CCPR/C/84/D/1333/2004, 25 July 2005, 320 Raihman v. Latvia, CCPR/C/100/D/1621/2007, 28 October 2010, 464, 472–3, 801 Rajan v. New Zealand, CCPR/C/78/DR/820/1998, 6 August 2003, 644, 683, 687 Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006, 247 Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002, 259, 260, 262, 398 Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003, 261, 294, 305 Reyes et al. v. Chile, CCPR/C/121/D/2627/2015, 7 November 2017, 572 Rezaifar v. Denmark, CCPR/C/119/D/2512/2014, 10 March 2017, 205 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018, 95, 264, 435 Riley et al. v. Canada, CCPR/C/74/D/1048/2002, 21 March 2002, 748 Robinson v. Jamaica, CCPR/C/35/D/223/1987, 30 March 1989, 377 Rodríguez v. Uruguay, CCPR/C/51/D/322/1988, 19 July 1994, 191 Rogerson v. Australia, CCPR/C/74/802/1998, 3 April 2002, 431 Rolando v. Philippines, CCPR/C/82/D/1110/2002, 3 November 2004, 212 Romanovsky v. Belarus, CCPR/C/115/D/2011/2010, 29 October 2015, 622 Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000, 521, 566 Rouse v. Philippines, CCPR/C/84/D/1089/2002, 25 July 2005, 301, 384 Rubio et al. v. Colombia, CCPR/C/OP/2 at 192 (1990), 2 November 1987, 191 S.G. v. France, CCPR/C/43/D/347/1988, 1 November 1991, 545, 819 S.L. v. Netherlands, CCPR/C/120/D/2362/2014, 18 July 2017, 479 S.P. v. Russian Federation, CCPR/C/118/D/2152/2012, 27 October 2016, 298–9, 305 Sahadath v. Trinidad and Tobago, CCPR/C/74/D/684/1996, 2 April 2002, 210 Salgar de Montejo v. Colombia, Communication No. 64/1979, CCPR/C/OP/1 at 127 (1985), 24 March 1982, 113 Samathanam v. Sri Lanka, CCPR/C/118/D/2412/2014, 28 October 2016, 192, 252 Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018, 254, 403, 461, 478 Santacana v. Spain, CCPR/C/51/D/417/1990, 15 July 1994, 636, 655

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Sathasivam and Saraswathi v. Sri Lanka, CCPR/C/93/D/1436/2005, 8 July 2008, 161 Saxena v. Canada, CCPR/C/118/D/2118/2011, 3 November 2016, 363 Sayadi and Vinck v. Belgium, CCPR/C/94/D/1472/2006, 22 October 2008, 334, 495, 497 Sechremelis et al. v. Greece, CCPR/C/100/D/1507/2006/Rev.1, 25 October 2010, 15, 86 Sekerko v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013, 603, 606 Shafiq v. Australia, CCPR/C/88/D/1324/2004, 31 October 2006, 256 Sharifova et al. v. Tajikistan, CCPR/C/92/D/1209 & 1231/2003 & 1241/2004, 1 April 2008, 418 Shchetko v. Belarus, CCPR/C/87/D/1009/2001, 11 July 2006, 568 Shikhmuradova v. Turkmenistan, CCPR/C/112/D/2069/2011, 17 October 2014, 437 Simunek et al. v. Czech Republic, CCPR/C/54/D/516/1992, 19 July 1995, 734, 745, 777 Silva et al. v. Uruguay, Communication No. 34/1978, CCPR/C/OP/1 at 65 (1984), 8 April 1981, 114, 700, 715 Silva et al. v. Zambia, CCPR/C/75/D/825–28/1998, 25 July 2002, 232–3 Singh (Bhinder) v. Canada, CCPR/C/37/D/208/1986, 9 November 1989, 517, 739, 770 Singh (Bikramjit) v. France, CCPR/C/106/D/1852/2008, 1 November 2012, 521, 536 Singh (Ranjit) v. France, CCPR/C/102/D/1876/2009 (2011), 22 July 2011, 517Sinitsin v. Belarus, CCPR/C/88/D/1047/2002, 20 October 2006, 79, 719 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005, 506, 515, 522–3, 624, 731, 769 Smídek v. Czech Republic, CCPR/C/87/D/1062/2002, 25 July 2006, 745 Smith and Stewart v. Jamaica, CCPR/C/65/D/668/1995, 12 May 1999, 294, 302, 309 Snijders et al. v. Netherlands, CCPR/C/63/D/651/1995, 27 July 1998, 757 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010, 397, 400, 406, 413, 432 Sohn v. Korea, CCPR/C/54/D/518/1992, 19 July 1995, 569 Solís v. Peru, CCPR/C/86/D/1016/2001, 27 March 2006, 699 Spisso v. Venezuela, CCPR/C/119/D/2481/201, 17 March 2017, 254 Sprenger v. Netherlands, CCPR/C/44/D/395/1990, 31 March 1992, 755–6 Stambrovsky v. Belarus, CCPR/C/112/D/1987/2010, 24 October 2014, 571 Stewart v. Canada, CCPR/C/58/D/538/1993, 1 November 1996, 346–8, 350 Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/37/40) at 137 (1982), 31 March 1982, 122, 142–3, 152, 247 Sudalenko v. Belarus, CCPR/C/100/D/1354/2005, 19 October 2010, 700, 705 Svetik v. Belarus, CCPR/C/81/D/927/2000, 8 July 2004, 567

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T.K. v. France, CCPR/C/37/D/220/1987, 8 November 1989, 819 Tadman et al. v. Canada, CCPR/C/67/D/816/1998, 4 November 1999, 749 Tae Hoon Park v. Korea, CCPR/C/64/D/628/1995, 3 November 1998, 569, 570, 625 Taright et al. v. Algeria, CCPR/C/86/D/1085/2002, 15 March 2006, 253 Teesdale v. Trinidad and Tobago, CPR/C/74/D/677/1996, 1 April 2002, 314, 749 Thomas v. Jamaica, CCPR/C/65/D/800/1998, 26 May 1999, 312 Titiahonjo v. Cameroon, CCPR/C/91/D/1186/2003, 26 October 2007, 161, 198, 303, 306 Tiyagarajah v. Sri Lanka, CCPR/C/98/D/1523/2006, 19 March 2010, 747 Toala et al. v. New Zealand, CCPR/C/70/D/675/1995, 2 November 2000, 451 Tofanyuk v. Ukraine, CCPR/C/100/D/1346/2005, 20 October 2010, 440 Toktakunov v. Kyrgyzstan, CCPR/C/101/D/1470/2006, 28 March 2011, 547 Toonen v. Australia, CCPR/C/50/D/488/1992, 31 March 1994, 9, 19, 20, 62, 462–3, 465, 472, 474, 556, 759 Tornel et al. v. Spain, CCPR/C/95/D/1473/2006, 20 March 2009, 486 Toshev v. Tajikistan, CCPR/C/101/D/1499/2006, 30 March 2011, 301 Toussaint v. Canada, CCPR/C/123/D/2348/2014, 24 July 2018, 145, 782 Tshidika v. Congo, CCPR/C/115/D/2214/2012, 5 November 2015, 295, 298, 306, 309 Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993, 263, 286 Turchenyak et al. v. Belarus, CCPR/C/108/D/1948/2010, 24 July 2013, 604 Türkan v. Turkey, CCPR/C/123/D/2274/2013, 17 July 2018, 99, 105, 772 Tyan v. Kazakhstan, CCPR/C/119/D/2125/2011, 16 March 2017, 406 Uebergang v. Australia, CCPR/C/71/D/963/2001, 22 March 2001, 423 Umarov v. Uzbekistan, CCPR/C/100/D/1449/2006, 19 October 2010, 214 Umateliev v. Kyrgyzstan, CCPR/C/94/D/1275/2004, 30 October 2008, 153 V.P. v. Russian Federation, CCPR/C/104/D/1627/2007, 26 March 2012, 176 Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002, 248, 333 Valenzuela v. Peru, CCPR/C/48/D/309/1988, 14 July, 774 Valetov v. Kazakhstan, CCPR/C/110/D/2104/2011, 17 March 2014, 148–50 Van Alphen v. Netherlands, CCPR/C/39/D/305/1988 23 July 1990, 254, 279 Van Duzen v. Canada, Communication No. 50/1979, CCPR/C/OP/1 at 118, 18 May 1979, 441 Van Hulst v. Netherlands, CCPR/C/82/D/903/1999, 1 November 2004, 461, 465 Van Meurs v. Netherlands, CCPR/C/39/D/215/1986, 11 July 1990, 388 Van Oord v. Netherlands, CCPR/C/60/D/658/1995, 4 November 1994, 746 Vandom v. Korea, CCPR/C/123/D/2273/2013, 12 July 2018, 480, 776 Vargas-Machuca v. Peru, CCPR/C/75/D/906/2000, 22 July 2002, 493, 726 Velichkin v. Belarus, CCPR/C/85/D/1022/2001, 20 October 2005, 554, 572 Vicente et al. v. Colombia, CCPR/C/56/D/612/1995, 14 March 1996, 79

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Vojnović v. Croatia, CCPR/C/95/D/1510/2006, 30 March 2009, 375, 490, 642, 753 Volchek v. Belarus, CCPR/C/111/D/1991/2010, 24 July 2014, 379 Vos v. Netherlands, CCPR/C/66/D/786/1997, 29 July 1999, 757 Wackenheim v. France, CCPR/C/75/D/854/1999, 15 July 2002, 135, 455, 744 Walderode v. Czech Republic, CCPR/C/73/D/747/1997, 30 October 2001, 777 Waldman v. Canada, CCPR/C/67/D/694/1996, 5 November 1999, 534, 735, 742, 749, 769, 802 Wallmann et al. v. Austria, CCPR/C/80/D/1002/2001, 1 April 2004, 615 Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011, 80, 348–9, 469 Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, 17 March 2009, 76–7, 296 Weiss v. Austria, CCPR/C/77/D/1086/2002, 3 April 2003, 206, 377 Westerman v. Netherlands, CCPR/C/67/D/682/1996, 13 December 1999, 438, 510 Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017, 93, 202, 482 Wight v. Madagascar, Communication No. 115/1982, Supp. No. 40 (A/40/40) at 171 (1985), 1 April 1985, 295 Williams v. Jamaica, CCPR/C/61/D/609/1995, 4 November 1997, 200 Wilson v. Philippines, CCPR/C/79/D/868/1999, 30 October 2003, 212 Winata and Li v. Australia, CCPR/C/72/D/930/2000, 26 July 2001, 483, 639, 680 Wolf v. Panama, CCPR/C/44/D/289/1988 at 80 (1992), 26 March 1992, 306, 310 X v. Colombia, CCPR/C/89/D/1361/2005, 30 March 2007, 760 X v. Demark, CCPR/C/110/D/2007/2010, 26 March 2014, 187 X v. Denmark, CCPR/C/113/D/2515/2014, 1 April 2015, 149 X v. Sri Lanka, CCPR/C/120/D/2256/2013, 27 July 2017, 95, 201, 753 X v. Sweden, CCPR/C/103/D/1833/2008, 1 November 2011, 151, 186–7 X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011, 661, 667 Y.D. v. Russian Federation, CCPR/C/101/D/1521/2006, 25 March 2011, 133–4 Y.L. v. Canada, Communication No. 112/1981, Supp. No. 40 (A/41/40) at 145, 8 April 1986, 382 Yachnik v. Belarus, CCPR/C/111/D/1990/2010, 21 July 2014, 511 Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018, 99, 519, 536, 772 Yasinovich and Shevchenko v. Belarus, CCPR/C/107/D/1835 & 1837/2008, 20 March 2013, 554 Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/2227/2012, 14 July 2016, 308 Yevdokimov and Rezanov v. Russian Federation, CCPR/C/101/D/1410/2005, 21 March 2011, 308, 704, 714 Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009, 338, 487 Yoon and Choi v. Korea, CCPR/C/88/D/1321–1322/2004, 3 November 2006, 508, 536 Young v. Australia, CCPR/C/78/D/941/2000, 6 August 2003, 759

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Young v. Jamaica, CCPR/C/62/D/615/1995, 4 November 1997, 287–8 Young-kwan Kim and Others v. Korea, CCPR/C/112/D/2179/2012, 15 October 2014, 510 Yuzepchuk v. Belarus, CCPR/C/112/D/1906/2009, 24 October 2014, 192 Zaidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018, 623 Zhagiparov v. Kazakhstan, CCPR/C/124/D/2441/2014, 25 October 2018, 263, 546 Zheludkova v. Ukraine, CCPR/C/75/D/726/1996, 29 October 2002, 303, Zinsou v. Benin, CCPR/C/111/D/2055/2011, 18 July 2014, 201 Zogo v. Cameroon, CCPR/C/121/D/2764/2016, 8 November 2017, 433 Zoltowski v. Australia, CCPR/C/115/D/2279/2013, 5 November 2015, 486, 682 Zwaan-de-Vries v. Netherlands, Communication No. 182/1984, CCPR/C/OP/2 at 209, 9 April 1987, 732–3, 735, 751, 755

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TA B L E OF T R E AT I E S (I N C H RO NO L O G I CAL O RDER)

League of Nations, Convention to Suppress the Slave Trade and Slavery, 25 September 1926, 60 LNTS 253, Registered No. 1414, entry into force 9 March 1927, 219 ILO Forced Labour Convention, C29, 28 June 1930, entered into force 1 May 1932, 220, 232, 236–7 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, 1, 37–8, 43–4, 56, 67, 89, 119, 135–6, 166, 581, 598, 601 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS vol. 78, p. 277, entered into force 12 January 1951, 135, 138, 155, 157 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950, 430 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 2 December 1949, A/RES/317, entered into force 25 July 1951, 221 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, 4 November 1950, ETS 5, 12–14, 17, 20, 25, 36, 39, 58–9, 71–2, 87, 106, 121, 124, 129, 138, 171, 193, 218, 233, 241, 282, 319, 325, 343, 354, 370, 429–30, 445, 458, 499, 515, 520, 524, 536, 538, 544, 562, 579, 591, 594, 597–9, 610, 617, 627, 630, 632, 659, 692, 729, 770, 787, 820 ILO Convention No. 100 Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 1951, 89 Convention Relating to the Status of Refugees, 28 July 1951, UNTS vol. 189, p. 137, adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held at Geneva, 2–25 July 1951, entered into force 22 April 1954, 355 Convention on the Political Rights of Women, 20 December 1952, A/RES/640 (VII), 89 Convention Relating to the Status of Stateless Persons, 28 September 1954, UNTS, vol. 360, p. 117, adopted on 28 September 1954 by a Conference of

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Plenipotentiaries convened by Economic and Social Council resolution 526 A (XVII) of 26 April 1954, entered into force 6 June 1960, 355, 358, 611, 686 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 September 1956, entered into force 30 April 1957, 219, 649 Convention on the Nationality of Married Women, 29 January 1957, Opened for signature and ratification by General Assembly Resolution 1040 (XI) of 29 January 1957, 89 ILO Convention 111, Discrimination (Employment and Occupation) Convention, 1958, 525, 739 UNESCO Convention Against Discrimination in Education, 14 December 1960, entered into force 22 May 1962, 801 Convention on the Reduction of Statelessness, 30 August 1961, UNTS, vol. 989, p. 175, adopted on 30 August 1961 by a conference of plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954, entered into force 13 December 1975, 358, 687 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, General Assembly Resolution 1763 A (XVII) of 7 November 1962, entered into force 9 December 1964, 89, 649 Vienna Convention on Consular Relations, 24 April 1963, Art. 36(1)(b), 500 UNTS 95, 402 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS, vol. 660, p. 195, 2, 585, 66, 738–9, 743, 751–2 International Covenant on Economic Social and Cultural Rights, 16 December 1966, UNTS, vol. 993, p. 3, 1, 2, 6, 37, 40–1, 63, 67, 223, 616, 618, 631, 651, 653, 689, 744, 751–2 Treaty on the Non-proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161, entered into force 3 May 1970, 168 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, 331 Organization of American States (OAS), American Convention on Human Rights, ‘Pact of San Jose’, Costa Rica, 22 November 1969, 12–13, 36, 58–9, 87, 106, 109, 121, 129, 171, 218, 241, 282, 319, 325, 354, 356, 370, 429–30, 445, 458, 499, 538, 579, 591, 610, 630, 659, 692, 729, 787 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, 1015 UNTS 163, 168 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978, 119, 430

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Convention on the Elimination of Discrimination Against Women, 18 December 1979, UNTS, vol. 1249, 2, 13, 89, 204, 611, 649, 650–1, 738–9, 751 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (‘Banjul Charter’), 27 June 1981, CAB/LEG/67/3 rev. 5, (1982) 7, 12–13, 36, 39, 58–9, 87, 106, 129, 154, 171, 218, 241, 282, 319, 325, 354, 356, 370, 429, 445, 458, 499, 538, 579, 591, 610, 630, 659, 692, 729, 787 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS, vol. 1465, p. 85, 2, 172, 175, 187, 189, 195, 215–16, 415 ILO, Indigenous and Tribal Peoples Convention, C169, 27 June 1989, 38, 51, 788 Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, 2, 119, 171, 206, 532–3, 652, 655, 660–2, 664–5, 670–1, 675–6, 683–4, 689, 691 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/ 158, 171–2, 611 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992, 1974 UNTS, 45, 168 Framework Convention for the Protection of National Minorities, 1 February 1995, ETS, 157, 611, 788 Rome Statute of the International Criminal Court, 17 July 1998, 82, 121, 194, 224, 425, 447, 708 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, New York, 25 May 2000, A/RES/54/263; C.N. 1032.2000, 576, 652, 670–1 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, adopted and opened for signature, ratification and accession by General Assembly Resolution A/ RES/54/263 of 25 May 2000, entered into force 12 February 2002, 168, 671 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 221–2 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 222 Council of Europe Convention on Action Trafficking in Human Beings, 16 May 2005, CETS 197, 222 Convention on the Prohibition of the Use of Nuclear Weapons, 11 January 2006, A/RES/60/ 88, 168 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, adopted by General Assembly Resolution 61/177 on 12 January 2007, 2, 194–5, 447–8

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Convention on the Rights of Persons with Disabilities, Resolution, adopted by the General Assembly, 24 January 2007, A/RES/61/ 106, 172, 512, 611, 650, 781 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, CETS No. 201, entered into force 1 July 2010, 659 Convention on Preventing and Combating Violence against Women and Domestic Violence (2011), 611 Treaty on the Prohibition of Nuclear Weapons, New York, 7 July 2017, TREATIES-XXVI-9 of 9 August 2017 (not in force), 168

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A B BR EV IATIONS

Treaties/UN Bodies CEDAW

Convention on the Elimination of Discrimination Against Women CEDAW Committee Committee on the Elimination of Discrimination Against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights Committee Human Rights Committee CRC Committee on the Rights of the Child D&R Decisions and Reports of the European Commission of Human Rights DPRK Democratic People’s Republic of Korea ECOSOC Economic and Social Council European Court European Court of Human Rights OP1 First Optional Protocol FRG Federal Republic of Germany GA UN General Assembly GDR Former German Democratic Republic ICC International Criminal Court ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights LNTS League of Nations Treaty Series OSCE Organization for Security and Co-operation in Europe UNTS United Nations, Treaty Series

Journal Titles ACDI Adel. L. Rev. Afr. Hum. Rights L.J. AJIL Am. Soc. Int. L. Austl. Int. L.J.

Anuario Colombiano de Derecho Internacional Adelaide Law Review African Human Rights Law Journal American Journal of International Law American Society of International Law Australian International Law Journal li

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lii Aust. YBIL Berkeley J. Int. L. Brit. J. Am. Legal Stud. Brook. J. Int. L. Canterbury L.R. Cardozo J. Int. & Comp. L.

List of Abbreviations

Australian Year Book of International Law Berkeley Journal of International Law British Journal of American Legal Studies Brooklyn Journal of International Law Canterbury Law Review Cardoza Journal of International and Comparative Law Chi. J. Int. L. Chicago Journal of International Law Colum. J. Transnat’l L. Columbia Journal of Transnational Law Cornell Int. L.J. Cornell International Law Journal Can. Yb. H.R. Canadian Yearbook of Human Rights Denv. J. Int. L. & Pol. Denver Journal of International Law and Policy DJCIL Duke Journal of Comparative and International Law EHRLR European Human Rights Law Review EiP Etikk i Praksis: Nordic Journal of Applied Ethics EJIL European Journal of International Law Fordham Int. L.J. Fordham International Law Journal GILJ Georgetown Immigration Law Journal GYIL German Yearbook of International Law Goettingen J. Int. L. Goettingen Journal of International Law Harv. H.R. J. Harvard Human Rights Journal Harv. Int. L.J. Harvard International Law Journal HKLJ Hong Kong Law Journal HRLJ Human Rights Law Journal HRLR Human Rights Law Review Hum. Rights Rev. Human Rights Review Hum. Rts Q. Human Rights Quarterly Hun. Yb. ILEL Hungarian Yearbook of International Law and European Law IAEHR Inter-American and European Human Rights Journal IJHR International Journal of Human Rights ILSA J. Int. & Comp. L. International Law Students Association Journal of International and Comparative Law Ind. J. Global Legal Stud. Indiana Journal of Global Legal Studies Ind. L.J Indiana Law Journal Int. Comp. L.Q. International & Comparative Law Quarterly Int. J. Child Rts International Journal of Children’s Rights Int. J. Const. L. International Journal of Constitutional Law Int. J. Law Policy Family International Journal of Law, Policy and the Family Int. J. on Minority & Group Rts International Journal on Minority and Group Rights Intl. J. Jurisprudence Fam. International Journal of the Jurisprudence of the Family

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List of Abbreviations

Int. Legal Materials J. Hist. Int. Law JC&SL JHRP JICJ JLRS JLSP JYIL L. & Ethics Hum. Rts Legal Studies LJIL Max Planck YBUNL Melb J. Int. L. Melb. U.L. Rev. Mon. U. L. Rev. NAUJILJ Nord. J. Hum. Rts NQHR N.Y.U. J. Int. L. & Pol. Penn St. Int. L. Rev. Queen’s L.J. Religion & Hum. Rts Sri Lanka J. Int. L. Stud. Transnat. Legal Pol. SUR – Int. J. on Hum Rts TCLR Tex. Wes. L. Rev. UNSWLJ U. Pa. J. Int. L. Utrecht L. Rev. Va. J. Int. L. Wash U.L.Q. Wayne L. Rev.

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liii

International Legal Materials, American Society of International Law Journal of the History of International Law Journal of Conflict and Security Law Journal of Human Rights Practice Journal of International Criminal Justice Journal of Law Religion and State Journal of Law and Social Policy Japanese Yearbook of International Law Law & Ethics of Human Rights Legal Studies, Journal of the Society of Legal Scholars Leiden Journal of International Law Max Planck Yearbook of United Nations Law Melbourne Journal of International Law Melbourne University Law Review Monash University Law Review Nnamdi Azikiwe University Journal of International Law and Jurisprudence Nordic Journal of Human Rights Netherlands Quarterly of Human Rights New York University Journal of International Law and Politics Penn State International Law Review Queen’s Law Journal Religion & Human Rights Sri Lanka Journal of International Law Studies in Transnational Legal Policy Sur International Journal on Human Rights Trinity College Law Review Texas Wesleyan Law Review University of New South Wales Law Journal University of Pennsylvania Journal of International Law Utrecht Law Review Virginia Journal of International Law Washington University Law Review Wayne Law Review

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Introduction

THE DEVELOPMENT AND CHARACTERISATION OF RIGHTS AND FREEDOMS OF THE INDIVIDUAL INDIVISIBILITY OF RIGHTS THE SUPERVISORY ROLE OF THE HUMAN RIGHTS COMMITTEE PARALLEL REGIONAL SYSTEMS THE CENTRALITY OF THE SCOPE, LIMITATIONS, QUALIFICATIONS AND MANDATED PROVISIONS INTERDEPENDENCE AND INTERACTION OF RIGHTS IN THEIR ENJOYMENT AND WHEN VIOLATED STRUCTURE AND CONTENT

Page 1 5 7 12 22 27 34

T H E D E V E L O P M E N T A N D C H A R A C T E R I S ATI O N O F R I G H T S AN D F RE E D O M S O F T H E IN D I V I D U A L The Charter of the United Nations ushered in a lasting global advance in the protection of human rights when in 1945 it pronounced a determination to ‘reaffirm faith in fundamental human rights, in the dignity and worth of the human person’,1 and it made the solemn pledge to promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.2 The Universal Declaration adopted just over three years later was a remarkable achievement in identifying and articulating for the first time the core set of rights warranting recognition, in spite of struggles by certain powers to cling to cherished aspects of their domestic systems.3 Those same rights were elaborated into binding form in a more challenging process over the ensuing eighteen years in the International Covenant on Civil and Political Rights (the Covenant)4 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),5 both adopted on the same day in December 1966 and known as ‘the twin Covenants’. They were separated during the drafting process in order to produce the most appropriate means for implementation and enforcement for each. 1 2 4 5

Charter of the United Nations, 24 October 1945, 1 UNTS XVI (UN Charter), Preamble. Article 55(c). 3 Universal Declaration of Human Rights, 10 December 1948, 217 A (III). International Covenant on Civil and Political Rights, 16 December 1966, UNTS, vol. 999, p. 171. ICESCR, 16 December 1966, UNTS, vol. 993, p. 3.

1

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2

a commentary on the iccpr

The Covenant and the ICESCR came into force in 1976 within two months of each other. The Universal Declaration possesses lasting normative value. At the time it was concluded it laid a pathway for the Covenant to resolve in a more detailed and practical way many of the shortcomings of domestic systems of law (even those of an embedded historic, cultural, religious or ideological character), and to give warrant to claims by the individual for violation of their rights. The Covenant in turn led to the later development of successive specialist treaties, including (among many) the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),6 the International Convention on the Elimination of Discrimination Against Women (CEDAW),7 the Convention on the Rights of the Child,8 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,9 and the International Convention for the Protection of All Persons from Enforced Disappearance.10 Differentiation between categories of rights-holders has been a feature of various codes over the centuries, exemplified by the ius civis in Roman law which distinguished the rights of Roman citizenry according to whether they were free or servile, and France’s Declaration of the Rights of Man and Citizen which gave political rights only to citizens who were men over a certain age who paid taxes above a given threshold. The status-based immurement of certain political rights endured even in the Western world to exclude the enfranchisement of women almost until the inauguration of the UN era. (The United States Declaration of Independence for all its virtues (including proclaiming that ‘all men are created equal’) failed to eradicate distinctions between slave and free.) The Universal Declaration achieved a decisive break from codifications based on distinctions between rights-holders, which the Covenant followed when guaranteeing Covenant rights to ‘all individuals . . . without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.11 The prominent titular reference to civil and political rights was not intended to draw a distinction between the two categories of rights so much as to declare that both were embraced within its coverage and to be equally available to all. The process of generating a rights taxonomy can be valuable, where it helps to 6 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS, vol. 660, p. 195. 7 CEDAW, 18 December 1979, UNTS, vol. 1249, p. 13. 8 Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, p. 3. 9 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS, vol. 1465, p. 85. 10 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006. 11 Even if it may be pointed out that the political rights in Art. 25 only apply to citizens, they are available to all citizens, on terms of equality.

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Introduction

3

exemplify and accentuate particular characteristics of individual rights, but a simple civil and political rights distinction is perhaps not the most productive. Covenant rights might more usefully be clustered in order to highlight their protective purpose or other function, or to demonstrate the support they give to certain facets of self-fulfilment and participation in society. For example, Articles 4, 5, 14 and 15 might be grouped together to bear out their distinctive capacity to uphold the rule of law and their support for democratic values. They operate with marked complementarity. Article 4 aims to expose to scrutiny by the international community the misuse of powers of derogation in a state of emergency. If properly implemented, internal procedures should also subject such action to review and correction by domestic courts. The two main guarantees in Article 14(1), of equality before the courts and tribunals, and of a fair and public hearing, provide the procedural means for doing so, and more broadly for safeguarding the rule of law. (Article 16 is also of special relevance at this point since the rule of law requires recognition of the individual’s existence before the law.) By virtue of Article 5, which excludes any interpretation of the Covenant that would legitimise acts aimed at the destruction of any Covenant rights or at their excessive limitation, individuals may not avail themselves of Covenant rights to overthrow the regime of the rule of law.12 One might place in the same category emerging Article 14 and 15 jurisprudence, which provides a basis for impugning legislation (usually criminal) formulated in such a broad and vague fashion as to be susceptible to widespread abuse contrary to the requirements of legal certainty and predictability, for example, to consolidate power without political legitimacy.13 To this might be added the limitation provisions of Articles 12(3), 18(3), 19(3), 21 and 22(2), which require that restrictions permitted under those provisions be ‘prescribed/provided by law’ or ‘imposed in conformity with the law’, since the travaux to certain limitation provisions expose the essential characteristics of a democratic society which those limitation provisions aim to preserve.14 Forming a separate cluster might be the protective rights designed to resist particular forms of attack on physical integrity, which are such as to endanger life (Article 6), or are constituted by torture, inhuman or degrading treatment (Article 7), arbitrary detention (Article 9), loss of personal security (Article 9), ill-treatment in detention (Article 10), or deportation to a country where it carries the risk of harm (Articles 12 and 13), or which take the form of insidious 12 Individual opinion of Mr Christian Tomuschat in Burgos v. Uruguay, Communication No. R.12/ 52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981, and Celiberti de Casariego v. Uruguay, Communication No. 56/1979, CCPR/C/OP/1 at 92 (1984), 29 July 1981. 13 Nasheed v. Maldives, CCPR/C/122/D/2270/2013, 4 April 2018 [8.3] (violation of Art. 14(1)). See chapters on Article 14: Fair Trial Rights, ‘Determination of a Criminal Charge’; and Article 15: Retroactive Criminal Law, ‘Nulla poena sine lege certa’. 14 See chapter on Article 21: Freedom of Assembly, ‘Necessary in a Democratic Society’.

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exploitation through human trafficking (Article 8). Article 24 also falls into this category, to meet failure to make provision for the particular needs of children. The violation of these rights is often aggravated by a discriminatory element provoked by ethnicity, sexual orientation, religion or political opinion or other status. A related grouping, but with different borders, might be derived by collating those Covenant provisions which direct domestic law to fulfil certain protective functions. Some Covenant rights might be conceived in ontological terms, to emphasise the common elements across the right of self-determination of peoples in Article 1 and the separate but related right of members of ethnic, religious or linguistic minorities in Article 27 (to enjoy their own culture, profess and practise their own religion, or use their own language) which operates to forestall the natural etiolation of minorities. Qualitatively different but falling under the same rubric is Article 16, which guarantees the right to recognition, without which the individual would have no existence before the law. Article 6 might also be included, since live existence is a condition for the enjoyment of all Covenant rights. Another logical grouping of rights turns on the individual’s identity and selfautonomy, including in the dimensions of their gender, sexuality, race or religion, safeguarded through the status-based protection of the non-discrimination provisions of Articles 2, 3 and 26, and supported by the Article 17 right against interference with privacy, family or the home. For some, the additional protection of Article 7 is needed against inhuman or degrading treatment to address, for example, the loss of reproductive rights (particularly afflicting the disabled in certain countries), or the avoidable suffering which has resulted from abortion services being unavailable within the range required by Article 3, as exemplified by recent decisions of the Human Rights Committee (the Committee). Even this collection of rights is incomplete without the capacity for individuals to express themselves freely, either on their own or in community with others, through the freedoms of expression, association and assembly. Their interests might be as members of a minority (Article 27). Their concerns in any event are better promoted by influencing public affairs and exercising the other political rights in Article 25. No matter how Covenant rights may be categorised, all of them have in common the recognition proclaimed in the Covenant that they ‘derive from the inherent dignity of the human person’, and in the Universal Declaration of ‘the inherent dignity and of the equal and inalienable rights of all members of the human family’. The importance of each Covenant right is reflected both in its recognition in the Covenant, regardless of the form in which it is proclaimed, and in the fact that restrictions on it warrant strict justification, according to the terms enshrining the right in question and the principles developed by its monitoring body, the Human Rights Committee (the Committee), for the operation of terms of limitation and

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qualification. The philosophy of the Covenant, as applied by the Committee, is to promote the enjoyment of all rights, by all individuals, universally. The essence of respecting and ensuring Covenant rights is that they be given ‘full effect’ in the domestic order of each Contracting State (Article 2) by legislative and other measures, and that they be safeguarded against restriction beyond the terms permitted, whether from private or public sources. For these reasons the recurring themes of this work are: the scope of individual Covenant rights; their terms of limitation and qualification; the requirements of domestic implementation to give each right full effect; and the principles that distinguish justified from unjustified restriction. Another theme is the interplay between Covenant rights to highlight the circumstances in which particular Covenant rights are violated in conjunction with others (even if violation is triggered for different reasons embedded in each applicable provision), and to demonstrate the mutually supportive operation of various Covenant rights. The purpose is to indicate the distinctive characteristics of each right, and the overlapping and complementary nature of rights protection. The rationale for each of these themes is developed more fully in this chapter below.

INDIVISIBILITY OF RIGHTS Different epithets denoting the ‘indivisibility’ of human rights have endured over time. The principle of interdependence, interrelatedness and indivisibility of human rights was described by Asbjørn Eide as ‘fundamental from the very establishment of the United Nations, and is an inherent part of the notion that the rights adopted by the United Nations are universal’.15 This view stems in part from the fact that the Universal Declaration was conceived as a normative system of interrelated rights, not as a menu from which States could pick and choose. The principle informs the critical relationship of complementarity between the two Covenants, recognised in the Preambles to each. The Proclamation of Teheran in 1968 made the point that in consequence of the indivisibility of human rights and fundamental freedoms, ‘the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible’.16 A generation later in 1993, in the aftermath of the Cold War, the Vienna Declaration and Programme of Action with a broader canvas proclaimed at the conclusion of an important gathering of States with almost global representation that: 15 Asbjørn Eide, ‘Interdependence and Indivisibility of Human Rights’, in Yvonne Donders and Vladimir Volodin (eds), Human Rights in Education, Science and Culture: Legal Developments and Challenges (Ashgate, 2007), p. 11. 16 Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April 13 May 1968, A/CONF.32/41 (1968) [13]: ‘Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.’

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a commentary on the iccpr All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.17

The indivisibility of human rights across different international conventions has been described as an ‘official doctrine’ of the United Nations.18 The measures required to ensure the enjoyment of Covenant rights, for example, by children, may be economic, social and cultural, in reducing infant mortality or eradicating life-threatening malnutrition (Article 6), to prevent them from being exploited by forced labour or prostitution, or more widely from becoming victims of human trafficking (Articles 8 and 16), or to secure for them education and access to essential social services.19 At the same time it is necessary to appreciate the particular features of the Covenant which distinguish it even from its twin. Each of the two Covenants gives rise to obligations quite different in nature and extent from the other. Under ICESCR Article 2(1), each State assumes a commitment ‘to take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized’.20 (The ICESCR is monitored by the Committee on Economic, Social and Cultural Rights (CESCR).) This is in contrast to the Covenant obligations on Contracting States towards individuals as right-holders, with immediately binding effect. Louis Henkin also describes how the two instruments differ as regards their focus on the individual, with the rights in the Covenant expressed in terms of the rights of the individual, in the hands of the individual (‘Every human being has the inherent right to life’; ‘No one shall be held in slavery’), whereas those in the ICESCR speak only to States not the individual (‘The States Parties . . . recognise the right to work’ . . . ‘undertake to ensure the right of everyone to form trade unions’ . . . ‘recognise the right of a everyone to education’).21 17 Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23 [5]. 18 James Nickel, ‘Rethinking Indivisibility: Towards a Theory Supporting Relations Between Human Rights’, (2008) 30 Hum. Rts Q., p. 984, at p. 985. 19 See chapter on Article 24: Protection Required for Children, ‘Implementation’. Note also that a rigid distinction between Covenant and other rights is not made in the text of Art. 24, which focuses more generally on what is required by a child’s status, in the circumstances at issue. 20 For further discussion of the nature of the obligation, see CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/ 1991/23. 21 Louis Henkin, ‘Introduction’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), p. 1, at p. 10. On the overlap between the ICCPR and ICESCR in the Human Rights Committee’s jurisprudence, and the interdependence of the Covenants, see Martin Scheinin and Malcolm Langford, ‘Evolution or

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T H E SU P E RV I S O RY R O L E O F T H E H U M A N R IG H T S C OM M IT T E E In spite of the existence of innumerable species of domestic tradition across the globe, which itself poses a major challenge to widespread effective implementation, the system of human rights protection accorded by the Covenant makes a justifiable claim to ‘universality’, with 172 countries bound as Contracting States, and six further non-ratifying signatories.22 As the body of independent experts that monitors implementation of the Covenant, the Committee faces a formidable task with a diverse constituency of constitutional arrangements ranging across those with entrenched religious or other State ideologies, codified systems of the type found in many Continental European countries, and the more ‘liberties-based’ common law systems on both sides of the Atlantic, the Indian subcontinent and in the Australasian corner of the Pacific, to mention just some of the largest groupings. Twenty years ago more than 75 per cent of Contracting States could boast in survey responses that the Covenant was part of domestic law, which offers some indication of progress even if the survey design has limits and the content of a number of responses might be contestable.23 State Reporting and Concluding Observations The state of Covenant implementation, both in law and in practice, is more reliably signalled by the output of the Committee’s review of State reports conducted since 1977 under Article 40 of the Covenant. Reporting procedures are found in numerous UN conventions, including some of the specialist conventions already mentioned, as well as those under the aegis of the ILO and UNESCO, but do not exist in comparable form under regional instruments.24 Revolution: Extrapolating from the Experience of the Human Rights Committee’, (2009) 27(l) Nord. J. Hum. Rts, p. 97; and more generally, Daniel Whelan, Indivisible Human Rights: a History (Pennsylvania University Press, 2010). 22 For a recent review of the Committee’s role in achieving implementation, see Naoko Maeda, ‘Forty Years’ Practice of the UN Human Rights Committee for Implementation of the Covenant: a Universal Model for the Protection and Promotion of Human Rights’, (2017) 60 JYIL, p. 212. Michael Addo argues that the UN supervisory bodies adopt a legal approach in which cultural diversity and universal respect for human rights complement and reinforce each other in ‘Practice of United Nations and Human Rights Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights’, (2010) 32 Hum. Rts Q., p. 601. See also Thomas Franck, ‘Is Personal Freedom a Western Value’, (1997) 91(4) AJIL, p. 593. 23 Manfred Nowak, CCPR Commentary, 2nd rev. edn (Engel, 2005) (CCPR Commentary), p. 58. 24 Article 52 of the European Convention establishes a procedure by which on request by the Secretary General of the Council of Europe a Contracting Party must provide an explanation of the manner in which its internal law ensures the effective implementation of any European Convention provision. There is a reporting procedure by which the European Committee of Social Rights monitors compliance under the European Social Charter. Article 62 of the African Charter requires each party to submit every two years a report on the legislative or other measures taken, but it was slow in gaining momentum, see Frans Viljoen, ‘State Reporting under the African Charter on Human and Peoples’ Rights: a Boost from the South’, (2000) 44(1) J. African L., p. 110.

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Under the Article 40 process States are required to submit periodically, and then be examined upon, their reports on the measures adopted to give effect to the Covenant. The key documents to emerge, which serve to highlight the state of a country’s implementation and (with less precision) to indicate instances of possible violation, are the country’s own report, the list of issues of highest priority, the summary records of the oral hearings during Committee sessions at which reports are considered, and the Concluding Observations adopted at the end. Of these the most authoritative are the Concluding Observations, which include important recommendations.25 These documents now span a period of more than forty years. They identify important features within State legal systems that pose obstacles to effective implementation, which may be shared by countries with similar characteristics or a similar legal tradition, they reveal certain trends in State responses representing possible violation, and also disclose important patterns in the development of the Committee’s commentary on particular issues. Concluding Observations offer more generalised coverage across a broader spread of issues than do the Committee’s Views in response to communications under the First Optional Protocol (OP1), in which it exercises quasi-judicial functions.26 By particularising matters of concern, the Committee’s Concluding Observations give a practical sense of the social, legal, cultural and other issues affecting each State Party. They lend colour and movement to Covenant rights in a live, global setting, when the convention text on its own is otherwise sterile and lacking context. This book makes extensive use of Concluding Observations in every chapter where they provide insight into the scope of individual rights and freedoms, they reflect the expectations of the Committee for implementation, or indicate recurrent patterns of interference. Views in Response to Communications under the First Optional Protocol The First Optional Protocol provides a mechanism for individual complainants (‘authors’) to raise with the Committee allegations of violation against States which are OP1 parties.27 The Committee’s adjudication of OP1 communications makes 25 The procedural source of General Comments is Rule 70(3) of the Provisional Rules of Procedure. For coverage of the detailed practice and procedure of the Committee, see Yogesh Tyagi, The UN Human Rights Committee: Practice and Procedure (Cambridge University Press, 2011); Concluding Observations are discussed at pp. 252 69. Michael O’Flaherty suggests Concluding Observations represent the single most important activity of human rights treaty bodies, providing an authoritative overview of the state of human rights in a country, in ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’, (2006) 6(1) HRLR, p. 27. For discussion of the domestic acceptance of monitoring bodies’ Views, General Comments and reports, and how domestic courts respond, see Machiko Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’, (2018) 67(1) Int. Comp. L.Q., p. 201. 26 Optional Protocol to the International Covenant on Civil and Political Rights, 19 December 1966, UNTS, vol. 999, p. 171. 27 Individuals, or a group of individuals commonly affected, may submit a communication about alleged breaches: Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000

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a contribution to the study of human rights which is quite different from that of Concluding Observations and other periodic reporting materials. The Committee’s ‘Views’ represent a considered assessment of alleged violations against a particular factual background, mostly strongly argued by the State as contradictor (though quite often not), with a determination of admissibility, violation or otherwise, and with scope for individual Committee members to append individual opinions elaborating reasons for supporting or dissenting from the majority decision. Claims may be considered inadmissible if they constitute an abuse of the petition process or, more commonly, are incompatible with the provisions of the Covenant. Authors must be ‘individuals’ (rather than other legal persons),28 who are individually identifiable victims asserting their Covenant rights. Victim status may also be claimed by family members of those whose rights are immediately violated, the most common basis being the anguish and distress suffered by relatives of victims of torture and disappearance. Others may act on behalf of victims provided they are properly authorised to do so.29 The limited category of victim precludes any actio popularis, such as a claim submitted on behalf of all unborn children in a particular country.30 It also limits the capacity for OP1 claims to challenge the mere existence of a law or practice in a country, or even its general operation, or to claim that it is at variance with the Covenant, if there is no specific impairment of a right or freedom, or one that is imminent, affecting the individual author.31 Nevertheless, there have been instances, Toonen v. Australia among them, when the author was able to claim victim status based on the threat of enforcement of legislation, in that case criminalising homosexual conduct, because of the pervasive impact of it on the claimant personally.32 Usually the impugned restriction on a right takes the form of administrative action or a domestic court ruling. There is one further limitation on OP1 claims worth noting at this stage, which concerns claims based on a State’s failure to take the necessary steps to give effect to Covenant rights by ‘legislative or other measures’: the implementation failure must be the proximate cause of violation, distinct from any finding of violation of a substantive right engaged.33 The Committee is generally reluctant to recommend legislative change when delivering its Views, out of concern that this may impact on the interests of

28 29 30 31 32 33

[9.2]. Cf. the right to self determination under Art. 1 which belongs to peoples, as such, not individuals: Lubicon Lake Band v. Canada, Communication No. 167/1984, 26 March 1990, Supp. No. 40 (A/45/40) at 1 (1990) [13.3]. Länsman et al. v. Finland, CCPR/C/83/D/1023/2001, 17 March 2005 [4.4]. A. B. v. Italy, CCPR/C/50/D/559/1993, 8 April 1994 [4.2]. Queenan v. Canada, CCPR/C/84/D/1379/2005, 26 July 2005 [4.2]. A.W.P. v. Denmark, CCPR/C/109/D/1879/2009, 1 November 2013 [6.4]; Beydon et al. v. France, CCPR/C/85/D/1400/2005, 31 October 2005 [4.3]; Aalbersberg et al. v. Netherlands, CCPR/C/87/D/ 1440/2005, 12 July 2006 [6.3]; Brun v. France, CCPR/C/88/D/1453/2006, 18 October 2006 [6.3]. Toonen v. Australia, CCPR/C/50/D/488/1992, 31 March 1994 [5.1]. Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [8.4]; Griffiths v. Australia, CCPR/C/112/D/1973/2010, 21 October 2014 [6.4].

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relevant stakeholders who have no opportunity to participate in the Committee’s proceedings.34 Questions of implementation and the adverse impact of domestic law are therefore addressed more effectively in the periodic review process and reflected in Concluding Observations. Where the Committee makes a finding of violation in an OP1 claim the respondent State must submit an update within three months describing the steps that it has taken to address it. The basis is Article 2(3) which requires States to remedy Covenant breaches. The status of corrective measures also generally makes its way into Concluding Observations. The value of the Committee’s Views in informing parallel treaty obligations also deserves mention. The International Court of Justice in Ahmadou Sadio Diallo (Guinea v. Congo) commented on the influence of the Committee in its OP1 capacity in the following terms. 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 [International Court of Justice] 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 entitled.35

Inter-State Complaints There exists an inter-State procedure under Articles 41–43 for resolving complaints made by one State for another’s failure to comply with its Covenant obligations (provided that other has entered a declaration accepting the Committee’s competence to determine the dispute). However, so far, it has not been invoked, and has limited value given that few State Parties have declared such competence and would generally prefer diplomatic means of resolution.36 34 E.g., Individual Opinion by Mr Gerald L. Neuman in Mihoubi v. Algeria, CCPR/C/109/D/1874/ 2009, 18 October 2013. 35 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment of 30 November 2010, I.C.J. Reports 2010, 639 [66]. Also relevant are International Law Commission reports on the weight to be assigned to the work of the Committee for the interpretation of the Covenant: Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties: Comments and Observations Received from Governments (21 February 2018) A/CN.4/712; Fifth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (28 February 2018) A/CN.4/715. 36 Geir Ulfstein (ed.), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge University Press, 2007), p. 56.

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General Comments As other treaty bodies have done within their own sphere of responsibility, since 1981 the Committee has published General Comments to clarify its interpretation of particular Covenant provisions, to raise thematic issues or certain aspects of its methods of work. General Comments express the Committee’s established approach to particular issues, informed by its OP1 decision-making and its experience with the reporting procedure. Extracts from General Comments inevitably feature in OP1 decisions and vice versa. A practice that has become pronounced in the most recent General Comments is to use Concluding Observations to illustrate the Committee’s concerns. While useful in rendering such material more accessible, the General Comment text is apt to become unwieldy as a result. A number of General Comments have been superseded by later versions. Even the most recent General Comment on a particular topic may not be that contemporary. It should be read with caution, in the light of subsequent General Comments in related areas because there is much cross-over between Covenant provisions particularly at the level of general principle. For example, when explaining the domestic law requirements for limitations on the freedom of expression, General Comment 34 drew on four other General Comments: General Comment 31 (the implementation limb of Article 2) as a reminder of the Committee’s expectations concerning the laws and other measures to give effect to Covenant rights;37 General Comment 27 (on freedom of movement, Article 12) to establish the conditions under which the rights may be limited, and on the need for appropriate curbs on discretion;38 General Comment 32 (on Article 14) for its stipulations about norms if they are to qualify as laws for the purpose of the ‘provided by law’ requirement;39 and General Comment 20 (on Article 7) in recognition that laws must not provide for penalties that are incompatible with the Covenant, such as corporal punishment.40 The impact of certain Covenant rights on others, discussed below,41 provides further reason to study General Comments widely.

37 General Comment No. 34, Article 19, Freedoms of Opinion and Expression, 12 September 2011, CCPR/C/GC/34 (GC 34) [8], citing General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/ Add.13 (GC 31) ([6] is the most relevant). 38 GC 34 [35], citing CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9 (GC 27) [14]; GC 34 [25], citing GC 27 [13]. 39 GC 34 [24], citing General Comment No. 32, Article 14 (Right to Equality Before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 (GC 32) [24]. 40 GC 34 [26], citing CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992 [5]. 41 See Interdependence and Interaction of Rights in their Enjoyment and When Violated, below.

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PARALLE L R EGIONAL SYST EMS Three significant regional human rights conventions are mentioned throughout this work, at the commencement of each chapter, to identify their provisions which have counterparts to the Covenant provision under discussion. They are, in chronological order, the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights. European Convention on Human Rights The European Convention, to which all Council of Europe Member States are party, was developed shortly after the Second World War and entered into force in 1953.42 The European Court of Human Rights (European Court) hears applications alleging violation under the European Convention and its Protocols. Before its abolition in 1998, the former European Commission on Human Rights determined issues of admissibility and referred matters to the European Court. After that the Court’s remit was significantly expanded. The European Social Charter is a further Council of Europe convention, which came into force in 1965 to guarantee fundamental social and economic rights. The monitoring body is the European Committee of Social Rights. American Convention on Human Rights The American Convention on Human Rights, adopted in 1969, came into force in 1978,43 and is the basis for the human rights protection of the Organization of American States. With twenty-five ratifications or accessions and two denunciations, there are currently twenty-three parties. The Inter-American Commission on Human Rights is charged (among other responsibilities) with investigating complaints of violation of American Convention rights and seeking to resolve allegations collaboratively. It also monitors and reports on human rights situations, and promotes public awareness of the Convention. The Inter-American Court of Human Rights adjudicates matters referred to it by the Commission or States Parties alleging violation but, unlike the Committee and the European Court, it does not receive petitions from individuals. The Court also has an advisory function.

42 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol Nos 11 and 14, 4 November 1950, ETS 5. 43 Organization of American States (OAS), American Convention on Human Rights, ‘Pact of San Jose’, Costa Rica, 22 November 1969.

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Many of the provisions of the American Convention have visible counterparts in the Covenant, from which they are derived. The First Additional Protocol came into effect in 1999, and added certain economic, social and cultural rights.44 African Charter on Human and Peoples’ Rights The African (Banjul) Charter on Human and Peoples’ Rights was the result of initiatives by the former Organization of African Unity, now the African Union. It entered into force in 1986,45 and with it the African Commission on Human and Peoples’ Rights came into being, with oversight functions in the African continent for investigating human rights violations, and promoting standards established by the Charter. The African Court on Human and Peoples’ Rights was created by the Protocol to the African Charter, which came into force in 2004. In addition to its advisory role, the Court’s function is to adjudicate disputes submitted to it under the Charter. The coverage of the Charter may be said to diverge from that of the Covenant (more than do the European and Inter-American systems) particularly in the lack of equivalent recognition for privacy, forced or compulsory labour, and the right to vote. Certain textual omissions may to a certain extent be met, however, by reliance on the generality of provisions capable of covering the same ground. The African Charter (like the American Convention but unlike the Covenant) extends to a number of economic, social and cultural rights. It is particularly unusual in the reach of its provisions concerning the rights of peoples (in Articles 19– 24) for which there is no comparison under other regional instruments.46 44 A recent detailed and critical review of the output of the Inter American Court of Human Rights and the Inter American Commission on Human Rights (together with some critique of parallel systems) is provided by Thomas Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights (Oxford University Press, 2017). An earlier systematic analysis of the Inter American Court’s case law (in contrast to the European Convention system, and emphasis on procedural as well as substantive human rights coverage) is available in Laurence Burgorgue Larsen and Amaya Ubeda de Torres, The Inter American Court of Human Rights: Case Law and Commentary (Oxford University Press, 2011). Further important reference works include Yves Haeck, Oswaldo Ruiz Chiriboga and Clara Herrera, The Inter American Court of Human Rights: Theory and Practice, Present and Future (Intersentia, 2015) and (from a more political science orientation) Par Engstrom, The Inter American Human Rights System: Impact Beyond Compliance (Springer, 2018). 45 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (‘Banjul Charter’), 27 June 1981, CAB/LEG/67/3 rev. 5, (1982) 21 Int. Legal Materials, p. 58. 46 Malcolm Evans and Rachel Murray, The African Charter on Human and Peoples’ Rights: the System in Practice 1986 2006, 2nd edn (Cambridge University Press, 2008), comprising con tributions from those with practical experience in implementing the Charter, spanning the reporting system and issues of interpretation. More recent are the contributions in Manisuli Ssenyonjo, The African Regional Human Rights System: 30 Years after the African Charter on Human and Peoples’ Rights (Martinus Nijhoff, 2011). Also noteworthy is Fatsah Ouguergouz, The African Charter of Human and People’s Rights: a Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (Martinus Nijhoff, 2003).

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Some Points of Difference Between Them Among the main differences between the European Convention and Covenant is the margin of appreciation,47 initially developed judicially but now about to be formalised in the European Convention’s text. It reduces the degree of scrutiny undertaken by the European Court when examining the question of violation.48 Although the margin of appreciation may be described as ‘the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention’, the Committee has not only avoided invoking the concept in any enduring way, but has explicitly rejected it.49 It does, however, avoid becoming a fourth instance review body. The doctrine under the European Convention allows deference to national authorities as the first arbiter in human rights disputes where a balance needs to be struck between competing interests.50 It also allows the Court to limit review where there is no consensus among Contracting States on the legal issue before it.51 It is based on an acknowledgement that national authorities are better placed to assess the content of limitations based on contextual considerations, as well as the degree to which the limitations imposed are necessary. It has attracted criticism, including for its inconsistency with the concept of the universality of human rights,52 and has received strong or qualified support from others.53 47 On other differences between the European Convention and Covenant, see Marcus Schmidt, ‘The Complementarity of the Covenant and the European Convention on Human Rights: Recent Developments’, in D. Harris and S. Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995) (‘Recent Developments’) p. 629. 48 The margin of appreciation has been a prominent feature of the European Convention case law for decades, but under European Convention, Protocol No. 15 (ETS 005) it is formally acknowl edged. See Judge Dean Spielmann, Allowing the Right Margin: the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?, University of Cambridge Centre for European Legal Studies Working Papers Series, February 2012. 49 Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument For its Application by the Human Rights Committee’, (2016) 65(1) Int. Comp. L.Q., p. 21, at p. 58. See also Sandy Ghandhi, The Human Rights Committee and the Right of Individual Communication (Ashgate, 1998), pp. 311 14. 50 Evans v. United Kingdom [GC] [2007] ECHR 264 [77] (identifying factors to be taken into account when determining the breadth of the margin: where a particularly important facet of an individual’s existence or identity is at stake, the margin will be restricted; where there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider; there will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights). 51 For more detailed discussion, see George Letsas, ‘Two Concepts of the Margin of Appreciation’, (2006) 26(4) Oxford J. Legal Studies, p. 705. 52 Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’, (1999) 31 International Law and Politics, p. 843, at p. 844. Also note Schmidt, ‘Recent Developments’, pp. 656 8. 53 See Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford University Press, 2012) (Legg provides a comprehensive

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A margin of appreciation is not generally employed by the Inter-American Court (although it may feature in certain aspects of the Court’s reasoning),54 or by the African Court.55 The margin of appreciation is found only in a small gleaning of comments in Committee decisions and individual opinions, but its repudiation by the Committee is unambiguous. Clear but short-lived support was lent to it in Hertzberg et al. v. Finland when the Committee found no violation in broadcast censorship in what was then controversial programme content, because public morals differ widely: ‘in this respect, a certain margin of discretion must be accorded to the responsible national authorities’.56 The experts drafting the Siracusa Principles shortly after the Hertzberg decision concluded that ‘[s]ince public morality varies over time and from one culture to another, a state which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community’.57 While it is undoubtedly true that the ‘morals’ ground of limitation is weak, the reference to ‘a certain margin of discretion’, or the margin in any other form, did not become established in the Committee’s jurisprudence beyond the acknowledgement that domestic implementation will inevitably take different forms.58 Margin of appreciation terminology also made its way into the Committee’s Views in Sechremelis et al. v. Greece,

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justification of the doctrine, and considers the key case law of the European Court, the Inter American Court and the Committee, documenting the margin of appreciation in practice); Petr Agha (ed.), Human Rights Between Law and Politics: the Margin of Appreciation in Post National Contexts (Bloomsbury, 2017) (Agha argues in an analysis of human rights in post national contexts that the doctrine is an essential part of human rights adjudication); Janneke Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights’, (2018) 18(3) HRLR, p. 495. Most evident in I A Court HR, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC 4/84 of 19 January 1984, Series A, No. 4, [58]. See Legg, Margin of Appreciation, p. 32; Andreas Føllesdal, ‘Exporting the Margin of Appreciation: Lessons for the Inter American Court of Human Rights’, (2017) 15 Int. J. Const. L., p. 359. Its potential application has been considered by Amos Enabulele, ‘Incompatibility of National Law with the African Charter on Human and Peoples’ Rights: Does the African Court on Human and Peoples’ Rights Have the Final Say?’ (2016) 16 Afr. Hum. Rights L.J., p. 1. Hertzberg et al. v. Finland, Communication No. 61/1979, CCPR/C/OP/1 at 124 (1985), 2 April 1982 [10.3]. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/ CN.4/1985/4 [27]. E.g., Aumeeruddy Cziffra et al. v. Mauritius, Communication No. 35/1978, CCPR/C/OP/1 at 67 (1984), 9 April 1981 [9.2(b)2(ii)1] [9.2(b)2(ii)4] (‘the legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions’); V.M.R.B. v. Canada, Communication No. 236/1987, Supp. No. 40 (A/43/40) at 258 (1988), 18 July 1988 [6.3], which David Harris cites in ‘An Introduction’, in David Harris and Sarah Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), at p. 14, as an example of an implied margin of appreciation in the context of deportation on grounds of national

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though not in any sense denoting a doctrine similar to that adopted by the European Court.59 In addition to various disavowals of the doctrine in a number of OP1 decisions,60 the clearest statements are found in its Article 27 decision in Länsman v. Finland, in which it conceded that a State may understandably wish to encourage development or allow economic activity by enterprises, but the scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in Article 27,61 and its recent Article 19 General Comment 34, which expresses the requirement for proof of the necessity of restrictions according to individual limitation terms, unencumbered by a margin of appreciation: The Committee reserves to itself an assessment of whether, in a given situation, there may have been circumstances which made a restriction of freedom of expression necessary. In this regard, the Committee recalls that the scope of this freedom is not to be assessed by reference to a ‘margin of appreciation’ and in order for the Committee to carry out this function, a State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression.62

The hallmark of the Committee’s approach has been to keep faith with the clear meaning of the Covenant text.63 On occasion this has yielded conspicuous divergence in Committee and European Court outcomes.64

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security: ‘[i]t is not for the Committee to test a sovereign state’s evaluation of an alien’s security rating’. Sechremelis et al. v. Greece, CCPR/C/100/D/1507/2006/Rev.1, 25 October 2010 [8.2] (‘The right to a fair trial, although of paramount importance for every democratic society, is not absolute in every aspect. Certain limitations can be imposed and tolerated since, by implication, the right of effective judicial protection, by its very nature, calls for regulation by the state. To this extent, the contracting states enjoy a certain margin of appreciation.’). Similarly, Leonid Raihman v. Latvia, CCPR/C/100/ D/1621/2007, 28 October 2010 [8.3] (‘While the question of legislative policy, and the modalities to protect and promote official languages is best left to the appreciation of State parties . . .’). Länsman et al. v. Finland, CCPR/C/52/D/511/1992, 14 October 1993 [7.13], [9.4] (a State may understandably wish to encourage development or allow economic activity by enterprises but the scope of its freedom to do so ‘is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27’). In Bikramjit Singh v. France, CCPR/ C/106/D/1852/2008, 4 February 2013, the Committee did not refer to the margin of appreciation at all and clearly rejected both parties’ appeal to it. The Dissenting Opinion of Mr Yuji Iwasawa in Haraldsson and Sveinsson v. Iceland, CCPR/C/91/D/1306/2004, 24 October 2007, is also noteworthy for lamenting the fact that States are not allowed wider discretion even in devising regulatory policies in economic areas (in that case, fishing quotas) in spite of the Committee’s limited expertise in reviewing economic policies. Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.4]. GC 34 [36] (footnotes omitted). Harris, ‘An Introduction’, at p. 19; McGoldrick, ‘A Defence of the Margin of Appreciation’, at p. 41. Cf. Bulgakov v. Ukraine, CCPR/C/106/D/1803/2008, 29 October 2012, and Bulgakov v. Ukraine, App. No. 59894/00, ECHR Judgment of 11 September 2007; Singh v. France, CCPR/C/108/D/1928/2010, 26 September 2013, and Mann Singh v. France, App. No. 24479/

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There is also a marked contrast between, on the one hand, the European Court’s proclamation of the European Convention as ‘a living instrument’, which is firmly established within its jurisprudence and promotes a progressive and evolving interpretation and, on the other, the Committee’s isolated mention of the principle.65 The ‘living instrument’ approach of the European Court may be traced to Tyrer v. United Kingdom, which determined that bare-skin birching (which then still survived in the Isle of Man) constituted degrading punishment. The Court described the Convention as ‘a living instrument which . . . must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the Member States of the Council of Europe in this field.’66 George Letsas has plotted the development of the living instrument principle through cases like Tyrer, and others such as Marckx v. Belgium, in which the Court relied on ‘present-day standards’ which had evolved in the majority of the Member States of the Council of Europe, and continued to do so, in company with relevant international instruments,67 and Goodwin v. United Kingdom and I v. United Kingdom, when it had regard to ‘the changing conditions within the respondent State and within Contracting States generally’ and ‘evolving convergence as to the standards to be achieved’ in the context of official recognition of post-operative transsexual gender identity.68 The Grand Chamber has since further indicated that the purpose of the living instrument analysis is to ‘reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies’.69 The living instrument approach of the

65 66 67

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07 [2008] ECHR 1523; Bikramjit Singh v. France, CCPR/C/106/D/1852/2008, 4 February 2013, and Ranjit Singh v. France, App. No 27561/08, ECHR, 30 June 2009; Türkan v. Turkey, CCPR/ C/123/D/2274/2013, 17 July 2018, and Leyla Şahin v. Turkey, App. No. 44774/98, [2005] ECHR 819. Alastair Mowbray, ‘The Creativity of the European Court of Human Rights’, (2005) 5(1) HRLR, p. 57. Tyrer v. United Kingdom, App. No. 5856/72, ECHR, 25 April 1978, Series A No. 26 [31]. Marckx v. Belgium, App. No. 6833/74, (1979) 2 EHRR 330, [1979] ECHR 2 [41] (the ‘domestic law of the great majority of the Member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim “mater semper certa est”’. (That evolution should occur to fulfil a Roman law principle is itself intriguing.)). Goodwin v. United Kingdom, App. No. 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 [74]; George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and its Legitimacy’, in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: the European Court of Human Rights in a National, European and Global Context (Cambridge University Press, 2013), p. 106; Nicholas Bratza, ‘Living Instrument or Dead Letter: the Future of the ECHR’, (2014) 2 EHRLR, p. 116. Demir and Baykara v. Turkey, App. No. 34503/97, [2008] ECHR 1345 [146].

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Inter-American Court has been traced by Carlos Narváez and Paola Ramírez.70 Some consider that the Committee also treats the Covenant as a living instrument.71 However, the occasions where it has done so are limited, and even the approach then taken by the Committee has been confined, and not been comparable to that of the European Court. It was most clearly indicated in 2002 in Roger Judge v. Canada, when the Committee stated that ‘the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions’.72 The Committee was faced with the question of whether Canada, as a country that had abolished the death penalty, would violate either Articles 6 or 7 by deporting someone to a country where they were under sentence of death. Its previous decision in Kindler v. Canada was to the effect that Article 6 did not necessarily require a refusal to extradite, or to seek assurances that the sentence would not be carried out, but such a request should at least be considered by the removing State.73 Conscious that the Kindler approach, established some ten years previously, was inadequate, the Committee explained its departure from it in Judge when it settled that if an abolitionist State (Canada) deported someone to a country where they were under sentence of death (United States), it established a crucial link in the causal chain that would make possible that person’s execution. The Committee explained that while it should ensure both consistency and coherence of its jurisprudence, ‘there may be exceptional situations in which a review of the scope of application of the rights protected in the Covenant is required, such as where an alleged violation involves that most fundamental of rights – the right to life – and in particular if there have been notable factual and legal developments and changes in international opinion in respect of the issue raised’. Since Kindler there had been a broadening international consensus in favour of abolition, and 70 For the interpretative approach of the Inter American Court, see Carlos Narváez and Paola Ramírez, ‘Treaties over Time and Human Rights: a Case Law Analysis of the Inter American Court of Human Rights’, (2017) 10 ACDI, p. 295. 71 Valeska David, ‘Reparations at the Human Rights Committee: Legal Basis, Practice and Challenges’, (2014) 32 Neth. Q. Hum. Rts, p. 8, at p. 13; Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 2013), p. 30, where the authors note that the Committee’s divergences from its own jurisprudence, though infrequent, are a sign that the Covenant is a living instrument capable of dynamic development (‘Certainly the [Committee’s] jurisprudence normally develops in a more expansive interpretation of a human right. That is, its decisions are more likely to become more liberal than more conservative.’). 72 Judge v. Canada, CCPR/C/78/D/829/1998, 5 August 2002 [10.3], and referring at [10.4] to the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155, p. 331, Art. 31, which requires a treaty to be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects purpose’. The Committee also had conscious regard for Art. 31, e.g., in S. W. M. Broeks v. The Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196, 9 April 1987 [12.2] [12.3]. 73 Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993 [10.1] [10.2].

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within those countries that retained it there was a broadening consensus not to carry it out. It would appear that as a result of litigation within Canada the Committee itself became aware that other abolitionist countries did not in general extradite without such assurances. The reference to ‘living instrument’ met Canada’s argument that its conduct must be assessed in the light of the law applicable at the time when the alleged violation took place. The ‘living instrument’ principle, as raised in Judge, may therefore be relatively confined.74 The Committee’s resistance to adopting the ‘living instrument’ characteristic for the Covenant may suggest some proroguing of progressive advancement on its part, but this may instead be explained by a preference not to embrace in terms a principle with uncertain ramifications, particularly in the universal context when more caution may be expected. It is beyond the scope of this work to examine the extent to which any apparent divergence on the use of this principle has been operative in the decision-making of the European Court and Committee. It would certainly appear that the Committee has been willing to depart from its own established jurisprudence for reasons that are consistent with a living instrument approach, and to interpret certain rights progressively over time. The potential for such divergence first became apparent at a time when that concept had recently been firmly established by the European Court. In Dudgeon, recalling Marckx and Tyrer, the Court took into account ‘the marked changes’ in the domestic law of Member States that had recently occurred, so that ‘in the great majority of [them] it is no longer considered necessary or appropriate to treat homosexual practices’ by criminal sanction. Because of the breadth and absolute character of the law in place in Northern Ireland, the restriction on Mr Dudgeon’s private sexual life was, quite apart from the severity of available penalties, disproportionate to its aims.75 The European Court did not address the non-discrimination claim, following its traditional approach that it would do so only if, after finding a separate breach (of the private life provision), a clear inequality of treatment in the enjoyment of the right in question was a fundamental aspect of the case. It also relied on Mr Dudgeon’s concession that if the Court were to find such a breach, then this particular question would cease to have the same importance.76 The Committee in Toonen concluded, without any appeal to the living instrument concept, that the criminal provisions which still survived in Tasmania did not meet the standard of reasonableness, and were arbitrary, because there was no consensus (even in Tasmania) as to whether those provisions should not also be repealed (as in other Australian states), and they were not then being enforced, which implied that they were not essential. Because it found a violation of Mr Toonen’s rights

74 Judge v. Canada, CCPR/C/78/D/829/1998, 5 August 2002 [10.3] [10.7]. 75 Dudgeon v. United Kingdom, App. No. 7525/76, [1981] ECHR 5, (1982) 4 EHRR 149 [60] [61]. Discussed by Harris, ‘An Introduction’, p. 12, contrasting Dudgeon and Toonen. 76 Ibid. [68].

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under Article 17(1) in conjunction with Article 2(1) the Committee did not consider it necessary to make a separate Article 26 assessment.77 The lack of a substantive free-standing finding of discrimination in both cases (Article 26 of the Covenant, and equivalent by the European Court under Article 14 of the European Convention) rankled because of the lack of vindication on that basis, and because the focus on private life suggested acceptance of such same-sex issues only if kept within the confines of personal privacy. Since Toonen there have been significant developments in the Committee’s engagement on issues of sexual orientation and gender diversity, most clearly visible in Concluding Observations from around 1998. The range of advances made is discussed more fully in the chapter on Article 26.78 The Committee’s recent decision in G. v. Australia is important as a measure of how far the Committee has moved on such issues, particularly since Toonen. The author was male to female transgender who successfully claimed a violation of Article 17 in Australia’s refusal to change her sex on her birth certificate, unless she divorced from her spouse (with whom she was in a happy relationship). The Committee’s findings of violation of Articles 17 and 26 were led by its Article 17 analysis, which included as an element taken from Toonen the abiding principle that ‘the inconsistency of the State party’s legal regime and lack of consensus and enforcement regarding the provisions at issue implied that they were not deemed essential to the State’s stated aim’. G. v. Australia also produced the Committee’s first Article 26 finding of discrimination on the basis of transgender status.79 It would appear that the Committee is not constrained in reaching outcomes that suggest a dynamic, progressive approach to interpreting the Covenant suggested by commentators like Ramcharan,80 even if it does not characterise the Covenant as a ‘living instrument’ in the same way that the European Court does the European Convention. In its universal setting it is perhaps more comfortable to resolve matters in a manner more suggestive of a pattern of enhanced recognition and realisation that established rights apply to newly encountered situations, without the accompaniment of ‘living instrument’ pronouncements.81 The Committee’s invocation of the ‘living instrument’ principle was not repeated in its subsequent decision-making when substantially revising its approach to conscientious objection to military service, even on an issue falling ostensibly within the confines of Judge. In a number of early conscientious objection cases the Committee avoided addressing whether Article 18 included a right to 77 Toonen v. Australia, CCPR/C/50/D/488/1992, 31 March 1994 [8.6], [11]. 78 See chapter on Article 26: Equality before the Law Equal Protection of the Law, ‘Sexual Orientation, Gender Identity, Transgender Status’. 79 G. v. Australia, CCPR/C/119/D/2172/2012, 2 December 2017 [7.10], [7.12]. 80 Bertrand Ramcharan, ‘Equality and Nondiscrimination’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 246 at p. 269. 81 On ‘progressive development’, see also Lederbauer v. Austria, CCPR/C/90/D/1454/2006, 13 July 2007, individual Dissenting Opinion of Ms Ruth Wedgewood [4.13].

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conscientious objection at all until in L.T.K. v. Finland it decided that Article 18 does not guarantee such a right. This was the result of the Committee focusing primarily on the only reference in the Covenant to ‘conscientious objection’ in Article 8(3)(c) (ii), which excludes from the prohibition against forced or compulsory labour any national service required of conscientious objectors.82 The turning point was J.P. v. Canada when it stated that ‘conscientious objection to military service’ was certainly protected by Article 18.83 In General Comment 22 it went on to confirm that conscientious objection to military service can be derived from Article 18,84 and this was followed by a number of Article 18 findings of violation in the conviction and sentencing of conscientious objectors on the basis that this unjustifiably restricted their ability to manifest their religion or belief.85 Recently, the Committee shifted its approach, no longer treating objection to universal conscription as a matter of external manifestation of religion or belief, but instead as an instance of the absolutely protected right to hold a belief.86 The more protective approach was explained by Sir Nigel Rodley in Atasoy and Sarkut v. Turkey in terms of the sanctity of life: ‘The right to refuse to kill must be accepted completely. That is why article 18, paragraph 3, is the less appropriate basis for the committee’s decision.’87 The question of evolving interpretation arose in Atasoy and Sarkut, and it is useful to observe how the Committee dealt with it. Turkey clung to the outmoded tradition of L.T.K. v. Finland by relying on the text of Article 8(3)(c)(ii) (that forced or compulsory labour does not include military or alternative service). It therefore argued against an evolving interpretation to say ‘it may be acceptable that the understanding of treaty provisions may evolve over time, but such evolving interpretation has limits’; if in the future States wanted to reconcile Articles 8 and 18 in view of changing circumstances they should amend the Covenant, but in the meantime the Committee should keep faith with Article 8(3)(c)(ii). The author replied that although the Committee initially concluded that Article 18 did not provide for such a right, its interpretation of the Covenant has since ‘evolved’.88 82 L.T.K. v. Finland, Communication No. 185/1984, CCPR/C/OP/2 at 61 (1990), 9 July 1985 [5.2]: ‘neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3(c)(ii) of article 8, can be construed as implying that right’. 83 J.P. v. Canada, CCPR/C/43/D/446/1991, 7 November 1991 [4.2]. 84 General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4 (GC 22) [11]. 85 Yoon and Choi v. Korea, CCPR/C/88/D/1321 1322/2004, 3 November 2006; Eu min Jung et al. v. Korea, CCPR/C/98/D/1593 1603/2007, 23 March 2010. For developments to 2009, see Hitomi Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Springer, 2009). 86 Min Kyu Jeong et al. v. Korea, CCPR/C/101/D/1642 1741/2007 (2011) [7.4]; Young kwan Kim et al. v. Korea, CCPR/C/112/D/2179/2012, 15 October 2014; Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015. 87 Individual Opinion of Sir Nigel Rodley in Atasoy and Sarkut v. Turkey, CCPR/C/104/ D/1853 1854/2008, 29 March 2012, jointly with members Mr Krister Thelin and Mr Cornelis Flinterman (concurring). 88 Ibid., [7.13] [7.14] and [8.3].

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Mr Fabían Omar Salvioli gave enthusiastic support to Sir Nigel’s explanation of why Article 18(1) was the most appropriate basis of the Committee’s finding, and went on to suggest that the development of this issue ‘is reflected in the jurisprudence and opinions of the Committee, which must apply and interpret the Covenant as a living instrument’.89 In spite of the comment by those particular Committee members, in its decision the Committee resisted being drawn into a ‘living instrument’ discussion and avoided any suggestion put to it that Covenant provisions ‘evolve’ over time. It did not repeat what it had said in Judge about the Covenant being a ‘living instrument’. It is also important to observe that the Committee has not developed a formalised, discrete set of principles for resolving concurrent rights comparable with that devised by the European Court, and described by European Court Judge Tulkens as ‘an interpretative dialectic that must seek to reconcile freedoms’, a process of balancing of interests, to check whether the right balance has been struck between two conflicting freedoms or rights.90 The following sections outline the Committee’s approach, discussed further in individual chapters, including when concurrent rights are asserted.91

T H E C E N T R A L I T Y O F TH E S C O P E , L IM I TAT I O N S , Q U A L I F I C ATI O N S A N D M A N D AT E D P R O V I S I O N S There is comparatively less emphasis on implementation in regional systems than under the Covenant, owing partly to the lack of an equivalently rigorous reporting system to that under Article 40. Even under the Covenant greater importance is instinctively attached by States to findings of violation than obligations of implementation (reinforced perhaps by the fact that OP1 claims based on Article 2(2) will be admissible only if the implementation failure is the proximate cause of a distinct violation of a Covenant right directly affecting the victim). Nevertheless, it is not open to Covenant Contracting States to maintain that their implementation obligations are sufficiently met, without taking the necessary Article 2(2) legislative or other measures, merely relying on the absence of obvious violation occurring within their territory. Such an approach would fail to apprehend that obligations of domestic implementation are promised to all individuals within the jurisdiction, and owed to other Contracting States, independently of violation of any individual’s Covenant right. Secondly, the lack of visible violation may simply be symptomatic of putting the telescope to the 89 Individual Opinion of Mr. Fabían Omar Salvioli (concurring) in Atasoy and Sarkut v. Turkey [4]. 90 Françoise Tulkens, ‘Freedom of Religion under the European Convention on Human Rights: a Precious Asset’, (2014) 3 BYU Law Rev., p. 509, pp. 522 3. 91 See sections ‘The Centrality of the Scope, Limitations, Qualifications and Mandated Provisions’, and ‘Certain Covenant Rights Influence and are a Source of Interpretation for Others’, below.

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wrong eye. Thirdly, many rights can be enjoyed only when guaranteed effectually in domestic law, the freedoms of expression and assembly especially, through the assurance that adverse consequences will not ensue for exercising them. One of the most important aspects of the metastasis achieved on the adoption of the Covenant concerns the detail supporting each Covenant right, which each Contracting State undertakes ‘to respect and to ensure’. Articles 1–27 of the Covenant determine the scope of each right to be secured domestically, as well as the means, whether through mandated prohibition, express legal protection or particularised safeguards. Covenant provisions are also particular about the limitations or other qualifications that apply to the enjoyment of the rights they enshrine. As Kiss put it, the transition ‘from a single, general clause [in the Universal Declaration] to several particular formulas reflected a desire to tailor limitations to the extent strictly necessary so as to assure maximum protection to the individual . . . In providing for possible limitations on relatively well defined rights and freedoms . . . it was considered important to provide limitation clauses that were more stringent and pointed to the particular right.’92 The priority given to limitation terms is also assumed in the terms of Article 5, which goes to the trouble of forbidding anything in the Covenant being interpreted as implying support for activity aimed at the destruction of any Covenant rights, ‘or at their limitation to a greater extent than is provided for in the present Covenant’. Because these aspects of domestic implementation strike at the heart of the Covenant schema this work places particular emphasis on the requirements for implementation, devoting a section specifically to that issue in each chapter. The reporting system provides a rich source of material for that purpose. The question of violation is better informed by the Committee’s OP1 Views. Domestic Implementation Aside from the need for domestic law to establish each Covenant right, and to observe certain stipulations specified in the text of individual provisions, the Committee is largely non-prescriptive about the means of domestic implementation. It has a preference for incorporation as the most effective method for faithfully replicating the Covenant’s terms. It expects to see the Covenant given ‘full effect’ in the domestic legal order, principally by allowing rights to be invoked, preferably before judicial authorities, with suitable remedies for violation. There must be some means of resolving conflicts between the Covenant and domestic law in favour of the Covenant. For this reason it has been concerned when the Covenant merely has persuasive rather than binding authority at

92 Alexandre Kiss, ‘Permissible Limitations on Rights’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 290, at p. 291.

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domestic level, and where non-conforming laws remain valid and operative where they relate to fundamental rights. Numerous provisions contain positive stipulations. Some proclaim that ‘everyone shall have’ particular rights.93 Some require extensive safeguards in domestic law.94 A number take the form of prohibition.95 Some contain precise specifications as to ‘the law’.96 Limitation terms are especially important. The permissive scope of limitation should by some means be reflected in domestic law where the 93 In order of appearance these are: the right to an effective remedy for violation (Article 2(3)); the right of those sentenced to death to seek pardon or commutation of their sentence (Article 6(4)); the right to compensation for unlawful arrest or detention (Article 9(5)); freedom of movement and to choose residence (Article 12(1)); the entitlement to a fair and public hearing, the presumption of innocence, and the right to appeal the conviction and sentence (Article 14(1), (2) and (5)); the right to recognition as a person before the law (Article 16); the right to the freedoms of thought, conscience and religion, of opinion and expression and of association (Articles 18, 19 and 22); the right of every child to such measures of protection as are required by their status as a minor (Article 24); and the right to participate in public life (Article 25). 94 E.g., those concerning the treatment of individuals arrested or detained (Article 9(1) (5)); those deprived of their liberty (Article 10); aliens being expelled (Article 13); those in support of the right to a fair trial (Article 14) or to avoid retroactive criminal liability (Article 15); and to prevent State misuse of the provisions entitling derogation in times of emergency (Article 4). 95 These are either expressed in general terms, such as the prohibition against slavery in all its forms (Article 8), or in terms that ‘no one shall’ be subjected to particular indignities, namely, torture or cruel, inhuman or degrading treatment or punishment (Article 7), slavery or servitude (Article 8), or be imprisoned for an inability to fulfil a contractual obligation (Article 11). Domestic law must be capable of being invoked in support of these guarantees. 96 Stipulations as to ‘the law’ fall into four categories. First, in the case of those rights which are expressed positively the role of the law is to provide substantive support. E.g., the right to life ‘shall be protected by law (Article 6(1)); the grounds and procedures by which a person may be deprived of liberty must be ‘established by law’ (Article 9(1)); an alien lawfully present in a State may be expelled only pursuant to a decision reached ‘in accordance with law’ (Article 13); the right to a fair and public hearing must be before a competent, independent and impartial tribunal ‘established by law’ (Article 14(1)); everyone has the right to the ‘protection of the law’ against interference with or attacks on private life (Article 17(2)); and ‘the law’ shall guarantee protection against discrimination on any ground (Article 26). The Committee has particular expectations in this regard. E.g., in connection with the rights to privacy, and to liberty and security, it has indicated that domestic law must specify in detail the precise circumstances in which interference may be permitted (See, e.g., General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/C/ GC/35 (GC 35) [22]; CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 (GC 16) [8]). It expects such legal protection to be found in legislation (GC 16 [2]). Secondly, are the two particular provisions which mandate domestic prohibition, and direct the content of domestic law, one by requiring that ‘the law shall prohibit any discrimination’ (Article 26), the other by stating that the prohibition against propaganda for war and the advocacy of national, racial or religious hatred shall be ‘prohibited by law’ (Article 20). Thirdly, a few provisions require protection against ‘unlawful’ measures, so that no one shall be subject to arbitrary or ‘unlawful’ interference with their privacy, family, home or correspondence, nor to ‘unlawful’ attacks on their honour and reputation (Article 17(1)). Fourthly, in limitation provisions ‘the law’ operates as a precondition for State reliance upon them (Articles 12(3), 18(3), 19(3), 21 and 22(2)). The Committee has emphasised in its General Comments that in these cases the law itself must establish the conditions under which the rights may be limited, and that restrictions which are not provided for in the law (or are not otherwise in conformity with the requirements of the relevant limitation provision) violate the guaranteed rights (GC 27 [12] on Article 12; GC 34 [26] on Article 19; GC 22 [8] on Article 18). The domestic order must meet all these Covenant stipulations of the ‘law’.

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Covenant is not directly incorporated.97 Indeed, the lack of clear status of the Covenant has led to particular Committee concern that the terms of limitation of individual Covenant provisions will not be respected. It has recommended revision ‘in order to ensure that all the requirements of the Covenant are reflected’ in domestic law, thereby ‘ensuring that the limitations imposed on the exercise of rights and freedoms under national legislation do not go beyond those permitted under the Covenant’.98 The Committee has even reminded States Parties to the European Convention that permissible restrictions under the Covenant are ‘less broad-based’ than under the European Convention,99 which is significant given that forty-six out of the forty-seven parties to the European Convention are also parties to the Covenant (the exception is Moldova). In short, compliance demands attention to the detail of Covenant text, given its deliberate and specific intentions. Even though there are limits to the Committee’s ability in OP1 decisions to explore questions concerning the content of domestic law and its general application, this is the very stuff of periodic reviews, with particular attention on whether rights and freedoms are effectually guaranteed according to their full scope, and whether they are susceptible to undue restriction. Issues of implementation are explored further in the chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, and in subsequent chapters when each right and freedom is addressed individually in detail. The Committee’s Concluding Observations are particularly useful in identifying where remedial steps may be required in-country. General Comments also provide insight into the Committee’s standards for domestic implementation. Violation The question of violation is explored in this work principally through the Committee’s OP1 decisions. Violation occurs when a right has been subjected to restriction in a manner that is in breach of the Covenant. It stems from the obligation on the State itself not to act in a way that impermissibly restricts any right,100 and to ensure there is no similar incursion from nonState actors.101 Violation is in part determined by reference to the scope of any applicable right, which is a definitional issue determined by the Committee’s interpretation of the text, particularly for those provisions with 97 See chapter on Article 2: To ‘respect and to Ensure’ Covenant Rights, ‘Terms of Limitation’. 98 Morocco CCPR/C/79/Add.44 (1994) 17. See also Hungary CCPR/C/79/Add.22 (1993) 11; Grenada CCPR/C/GRD/CO/1 (2009) 6. 99 Malta CCPR/C/79/Add.29 (1993) 9; Iceland CCPR/C/79/Add.26 (1993) 8; Denmark CCPR/C/ 79/Add.68 (1996) 11. 100 GC 31 [3], [5] and [6]. 101 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, section ‘The Twin Obligations.

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‘shall have’, ‘shall be’ and ‘shall not be denied’ stipulations.102 For some, violation subsists in restrictions in excess of that permitted by applicable terms of limitation.103 For some, it follows a failure to render the appropriate degree of protection required.104 For one, it occurs when restrictions are ‘unreasonable’ or discriminatory.105 In some provisions the right is violated by breach of an injunction such as ‘no one shall be’ subjected to the abuse in question.106 For some of these, violation turns on the concept of ‘arbitrariness’.107 Some provisions have no terms of limitation or qualification explicit in the text, for which the Committee has developed key principles, particularly concerning the threshold for violation.108

102 Articles 2(3), 6(4), 9(5), 12(1), 14(1), (2) and (5), 16, 18, 19, 22, 24, 25 and 27. 103 Articles 12(3), 18(3), 19(3), 21 and 22(2). 104 Articles 23 and 24. The protection required for the family by Art. 23 is often of a procedural nature, and demands that judicial and other authorities apply relevant criteria appropriately when adjudicating competing interests, such as child access (Tcholatch v. Canada, CCPR/C/89/ D/1052/2002, 20 March 2007 [8.7]), supported by proper enforcement mechanisms (Fei v. Colombia, CCPR/C/53/D/514/1992, 4 April 1995 [8.10]; Martínez v. Paraguay, CCPR/C/ 95/D/1407/2005, 27 March 2009 [7.3] [7.5]). For some matters it is necessary for the law to establish the relevant criteria (N.T. v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.7]). Similarly, Article 24, which gives every child the right to ‘such measures of protection as are required by [their] status as a minor’, operates to address the shortcomings of judicial and administrative authorities if they neglect relevant criteria in their assessments, such as the best interests of the child (Bakhtiyari & Bakhtiyari v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [4.1], [4.7], [9.7]), if they fail to carry out that assessment thoroughly (X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011 [10.3] [11]), or otherwise fall short in these protective obligations (De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [10.3] [10.5]; L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [3.2], [13.3] [13.4]). 105 Article 25. This means, e.g., that the grounds of restriction must be established by laws that are objective and reasonable, and incorporate fair procedures (Dissanakye v. Sri Lanka, CCPR/C/ 93/D/1373/2005, 22 July 2008 [8.3]), including transparency (Q v. Denmark, CCPR/C/113/D/ 2001/2010, 1 April 2015 [7.2] [7.5]); the basis of restriction must not to be so unreliable as to be susceptible to misuse (Sudalenko v. Belarus, CCPR/C/100/D/1354/2005, 19 October 2010 [2.3], [2.8], [6.5] [7]); and rule making processes must not to be flawed for lack of foresee ability and objectivity (Van Alphen v. Netherlands, CCPR/C/39/D/305/1988, 23 July 1990 [5.8]; Mukong v. Cameroon, CCPR/C/51/D/458/1991 (1994) 21 July 1994 [9.8]; Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.1]). 106 Articles 6(1), 7, 8(1) (3), 9(1), 11, 12(4), 14(7), 15(1), 17(1) and 18(2). 107 Articles 6(1), 9(1), 12(4) and 17(1)). ‘Arbitrariness’ is attested by elements such as ‘inappro priateness, injustice, lack of predictability’ (Van Alphen v. Netherlands, CCPR/C/39/D/305/ 1988, 23 July 1990 [5.8]; Mukong v. Cameroon, CCPR/C/51/D/458/1991 (1994) 21 July 1994 [9.8]; Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.1]). This quali fication requires any interference to be ‘in accordance with the provisions, aims and objectives of the Covenant and reasonable in the particular circumstances’ (GC 16 [4]; GC 27 [21]). Violation may also occur because the legal prescriptions that are intended to militate against arbitrariness are not met, e.g., because the interference is not ‘established by law’ or is ‘unlawful’ (Articles 9(1), 17(1)). 108 Articles, 2, 3 and 26. Those claiming discrimination must demonstrate that they are treated differently from others in similar situations, and that the categories of those compared are not relevantly distinguishable. The impugned distinction must be based on a relevant characteristic, and the success of any claim depends on belonging within the appropriate group.

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I NT E R D E P E N D E N C E A N D I N T E R A C T I O N O F R I G H T S I N T H E I R EN J O Y M E N T A ND W H E N V I O L AT E D The Covenant is a daedal composition of provisions with tight interconnection. Certain rights overlap and provide concurrent support to answer particular violative situations by difference means; some rights have interpretive influence on others; some serve to stem violation of other rights or militate against the prospects of their being violated subsequently; and some rights coexist in combination in a relationship of striking interdependence. Certain Covenant Rights are Inseparable from Each Other In a number of respects the expressive freedoms (in Articles 18, 19, 21 and 22) are inseparable conceptually from each other. The freedoms of assembly and association annunciate particular forms of the general freedom of expression. As John Humphrey explained when discussing the right of peaceful assembly, ‘[t]here would hardly be freedom of assembly in any real sense without freedom of expression; assembly is indeed a form of expression’.109 The freedom of religion or belief possesses a number of facets which reflect the distinctive elements of the other expressive freedoms. It encompasses the ‘inner’ dimension of thought, conscience and religion of the individual comparable with and overlapping the right to hold opinions. The collective dimension of religious freedom is enjoyed by similar means as the freedom of assembly (e.g., in a gathering for prayer or worship) and, as with freedom of association, an important aspect is selfautonomy at the organisational level. The other expressive freedoms are also intimately related: in the practicalities of a public assembly it is not a simple task to untangle freedom of expression from freedom of assembly;110 and it is particularly clear from restrictions on the registration of organisations aimed at stifling dissent that the freedom of association is not only an essential means by which political and other opinion is expressed, but that the legal personality of organisations is also essential to support the contractual and other operations necessary for their existence and to serve the collective interests for which they were established. In spite of this high degree of commonality across the rights in Articles 18, 19, 21 and 22, they possess different terms of limitation because of the distinguishable characteristics of each. These are tailored to the manner in which they are intended to be exercised. For example, Articles 18(1) and 19(1) admit no limitation of the nuclear components of the freedoms of belief and of opinion; Article 19(3) permits restrictions on the freedom of expression where necessary ‘for respect 109 John Humphrey, ‘Political and Related Rights’, in Theodor Meron (ed.), Human Rights in International Law, Legal and Policy Issues (Clarendon Press, 1984), vol. I, ch. 5, at p. 188. 110 E.g., Kivenmaa v. Finland, CCPR/C/50/D/412/1990, 31 March 1994, Individual Opinion by Mr Kurt Herndl (dissenting) [3.5].

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of the rights or reputations of others’ given reputational risks which may impinge upon the Article 17 rights of those affected (when comparable grounds of limitation for the other expressive freedoms are simply ‘the rights and freedoms of others’); and Article 21 adopts a more permissive formula in the legal prerequisites for limitations on freedom of assembly, to accommodate the administrative measures commonly encountered when regulating demonstrations, allowing restrictions to be ‘imposed in conformity with the law’ (instead of ‘prescribed by law’). Certain Covenant Rights Influence and are a Source of Interpretation for Others The freedom of association is acknowledged to have interpretive influence on the associative aspects of freedom of religion or belief.111 It may also inform aspects of Article 27 when supporting the interests of minority groups in the enjoyment of their own culture, religion or language. The right to self-determination in Article 1(1) has had notable influence on the interpretation of Article 25, given the practical context under consideration. For example, it shaped the Article 25 outcomes in Gillot v. France when the Committee assessed the effect of the way electorates were drawn in referenda to determine the future of French New Caledonia in a process of self-determination,112 and in Käkkäläjärvi et al. v. Finland when changes affecting eligibility to vote in elections to the Sami Parliament required consistency with Article 1.113 In spite of the differences in the limitation provisions of Articles 12(3), 18(3), 19(3), 21 and 22(2), the interpretive influence of some of them on others is evident in the way in which the Committee has approached certain common elements of their shared template. For example, General Comment 34 on Article 19 adopted principles developed under Article 12(3) to expound the domestic law requirements affecting the freedom of expression, and to explain principles of proportionality; it also relied on principles developed under Article 18(3) for the disciplines which determine the ‘necessity’ of restrictions.114 Similar concurrence of principle is increasingly reflected in the Committee’s OP1 decisions under Articles 18(3), 19(3), 21 and 22(2) in the strictness of its approach to State reliance on limitation provisions. It has repeatedly emphasised 111 Hasan and Chaush v. Bulgaria, App. No. 30985/96, (2002) 34 EHRR 55, [62]: ‘[w]here the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference’. 112 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002 [13.4]. 113 Käkkäläjärvi et al. v. Finland, CCPR/C/124/D/2950/2017, 2 November 2018 [9.9] [9.11] (violation of Art. 25, read alone and in conjunction with Art. 27, as interpreted in light of Art. 1). 114 See chapter on Article 19: Freedom of Expression, sections Article 19(3): Terms of Limitation, Disciplines Applicable to Limitation, and Necessity and Proportionality.

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the need for States to demonstrate that a restrictive measure was the least intrusive means of achieving its genuine protective purpose; to identify ‘a specific and significant threat to public order and safety’ in order to justify resort to restrictions on those grounds (to avert real (not merely hypothetical) dangers);115 when relying on ‘the fundamental rights and freedoms of others’ to identify the specific fundamental rights affected (and the persons affected); and that the mere existence of reasonable and objective justifications for limiting rights is not enough. When concurrent rights are asserted, for example, in the right to demonstrate and to counter-demonstrate, the obligation is on the State in a democratic society to put in place effective measures to protect against attacks aimed at silencing those exercising their rights.116 Among other oft-invoked principles when examining the expressive freedoms are: that States should be guided by the aim of facilitating a right, rather than seeking unnecessary or disproportionate limitations to it when aiming to reconcile an individual’s right and interests of general concern;117 that it is difficult to find any justification for restrictions imposed on someone solely for exercising their Covenant rights; and that content restrictions, aimed at the message itself, are particularly egregious.118 The Committee has also reiterated some fundamental principles concerning the expectations of a democratic society.119 The Committee has taken a distinct approach to Covenant consistency in the application of limitation terms, which achieves synchroneity across Covenant provisions. Article 12(3) possesses the only limitation clause that expressly conditions the permissibility of restrictions on their being Covenant-consistent, a requirement that was introduced to ensure that laws authorising limitation possess certain properties. As a result, restrictions on freedom of movement must be ‘consistent with the other rights recognized in the Covenant’.120 In parallel with this the Committee interprets Article 19 to require that ‘[l]aws 115 Jeong Eun Lee v. Korea, CCPR/C/84/D/1119/2002, 23 August 2002 [7.2]; Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.7]; Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [8.7] [8.8]. 116 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.3]. Detailed discussion on the resolution of concurrent rights under the European Convention is found in Stijn Smet and Eva Brems, When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony (Oxford University Press, 2017). Andrew Legg offers a useful summary of theoretical approaches in Margin of Appreciation, pp. 181 92. 117 Kirsanov v. Belarus, CCPR/C/110/D/1864/2009, 20 March 2014 [9.7]. See also Praded v. Belarus, CCPR/C/112/D/2029/2011, 10 October 2014 [7.8]; Turchenyak et al. v. Belarus, CCPR/C/108/D/1948/2010, 24 July 2013 [7. 4]; Sekerko v. Belarus, CCPR/C/109/D/1851/ 2008, 28 October 2013 [9.6]. 118 Kirsanov v. Belarus, CCPR/C/110/D/1864/2009, 20 March 2014 [9.7]; Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.6]. 119 Zvozskov et al. v. Belarus, CCPR/C/88/D/1039/2001, 17 October 2006 [7.2]; Korneenko et al. v. Belarus, CCPR/C/88/D/1274/2004, 31 October 2006 [7.3]; Kungurov v. Uzbekistan, CCPR/ C/102/D/1478/2006, 20 July 2011 [8.4]. 120 A/2929 (1955), Ch.VI, p. 39 [54]. According to GC 27 [13], adopted in GC 34 [21], laws authorising the application of restrictions should also use precise criteria.

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restricting the rights enumerated in Article 19, paragraph 2 . . . must not only comply with the strict requirements of Article 19, paragraph 3 of the Covenant but must also themselves be compatible with the provisions, aims and objectives of the Covenant’.121 Given the tight nexus between Article 19 and each of Articles 21 and 22 the same qualification may be expected to apply to them, if not also Article 18. A strict stipulation of Covenant-consistency was developed by the Committee when assessing arbitrariness under Article 17, in requiring that an authorised interference must occur only on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.122 Similarly, under Article 6, a deprivation of life is, as a rule, arbitrary if it is inconsistent with international law;123 and the ‘grounds’ and the ‘procedures’ ‘established by law’ as required by Article 9(1) are themselves arbitrary if incompatibile with another Covenant provision.124 Even outside the operation of typical limitation terms, or the qualification of arbitrariness, the Committee has interpreted Article 13, which requires any expulsion of an alien to be reached ‘in accordance with law’, to mean that the relevant provisions of domestic law must ‘of course’ themselves be compatible with the provisions of the Covenant.125 The theme of broad Covenant consonance in terms of limitation or qualification of rights appears not only to be firmly established, but increasingly vocalised. The different concepts attaching to the qualifying term ‘arbitrary’, which historically applied separately under Articles 6, 9, 12(4) and 17, are also increasingly shared. In particular, those conceived under Articles 6 and 9 are now more readily found within the ‘arbitrary’ componentry of Articles 12(4) and 17. The test traditionally applied under Articles 6 and 9 understood ‘arbitrariness’ in terms of ‘inappropriateness, injustice, lack of predictability, and due process of law, as well as elements of reasonableness, necessity and proportionality’.126 Its usage under those provisions inevitably has differing accents appropriate to the circumstances being addressed. Under Article 6 the use of potentially lethal force must be ‘strictly necessary’ in view of the threat posed, a means of ‘last resort’, as ‘an extreme measure’; while under Article 9 detention ‘must not only be lawful but 121 GC 34 [26] (fns omitted). 122 GC 16 [3]. For discussion of comparable requirements under Art. 9, see chapter on Article 9: Liberty and Security, section ‘Deprivation of Liberty Must be Lawful’. 123 See chapter on Article 6: The Right to Life, section ‘Arbitrariness through Inconsistency with International Law or Domestic Law’. 124 Fardon v. Australia, CCPR/C/98/D/1629/2007, 18 March 2010 [7.4]. See also Hicks v. Australia, CCPR/C/115/D/2005/2010, 5 November 2015 [4.7] [4.10], and for further dis cussion, chapters on Article 9: Liberty and Security, sections ‘Arbitrariness Where Detention is Incompatible with a Covenant Provision’ and ‘Arbitrariness Where Detention is Punishment for the Legitimate Exercise of Covenant Rights, or is Discriminatory’; and Article 12: Freedom of Movement of the Person, section ‘Consistency with the Covenant’. 125 Maroufidou v. Sweden, CCPR/C/12/D/58/1979, 9 April 1981 [9.3]. 126 See chapter on Article 9: Liberty and Security, section ‘Reasonableness, Necessity and Proportionality’.

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reasonable and necessary in all circumstances, for example to prevent flight, interference with evidence or the recurrence of crime’. Arbitrariness is particularly obvious in the imposition of detention (or indeed other significant detriment) as punishment for the legitimate exercise of a Covenant right, most often unwelcomed free expression of political or other opinion. The ‘inappropriateness, injustice, etc.’ formula was not, however, a standard which featured in either of General Comments 16 or 27 (on Articles 12 and 17). Instead, both those General Comments, reflecting earlier OP1 decisions, refer to arbitrariness as guaranteeing that ‘even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’.127 Yet the Article 6 and 9 standard of ‘arbitrariness’ (‘inappropriateness, injustice, etc.’) has additionally been assimilated in the Committee’s more recent analysis under Articles 12(4)128 and 17.129 It constitutes an understandable migration of principle between provisions which are all dependent on the same qualifying notion of arbitrariness, where the formula developed under one provision is apt to the circumstances in which it arises under another.130 Responding to different demands placed on the term ‘arbitrary’ in different situations, the Committee, for example, emphasised under Article 12(4) the reality that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be justified; and under Article 17 in the context of mass surveillance the need to observe ‘the principles of legality, proportionality and necessity’. Principles of arbitrariness also inform other Covenant provisions, including Articles 14 and 26.131 As this process develops, principles of limitation and qualification are likely to continue to merge into more coherent, clearer standards and disciplines in support of the individual’s Covenant rights. 127 128 129 130 131

GC 16 [4]; GC 27 [21]. Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018 [9.4]. Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.2], [7.4]. See chapter on Article 12: Freedom of Movement of the Person, section ‘Arbitrariness’. The test involving ‘injustice’ commonly applied to determine whether a trial meets the general requirements of fairness under Art. 14(1) is whether the procedure applied or the evaluation undertaken was ‘manifestly arbitrary or otherwise amounted to a denial of justice’ (e.g., Simms v. Jamaica, CCPR/C/53/D/541/1993, 3 April 1995 [6.2]; Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.3]); with the more recent qualification, ‘or the court failed in its duty of independence and impartiality’ (Allakulov v. Uzbekistan, CCPR/C/ 120/D/2430/2014, 19 July 2017 [6.3]). Equality before the courts and tribunals in Art. 14(1) requires distinctions in access to courts to be based on law and justified on objective and reasonable grounds (GC 32 [9]). This is consonant with the position under Art. 26 that ‘an individual may [unjustifiably] be deprived of his right to equality before the law if a provision of law is applied to him or her in arbitrary fashion, such that an application of law to an individual’s detriment is not based on reasonable and objective grounds’ (Borzov v. Estonia, CCPR/C/81/D/ 1136/2002, 26 July 2004, [7.2], citing Kavanagh v. Ireland, CCPR/C/71/D/819/1998, 4 April 2001 [10.3]). Arbitrariness which inheres in inequality to an individual’s detriment, where it is not based on reasonable and objective grounds, is more clearly stated in the context of the broader ‘equality before the law’ guarantee in Art. 26.

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Interdependence of Covenant Rights The interdependence of Covenant rights has numerous dimensions. The expressive freedoms show particularly strong support for certain other freedoms. The dependency of the democratic rights in Article 25 on the expressive freedoms is palpable. Without them Article 25 would be an empty shell. Without freedom of expression there would be no free debate on matters of public importance, no shaping of public opinion, or criticism of those in power or aspiring to it; without freedom of assembly no demonstrations; without freedom of association political parties could not represent the spectrum of public opinion. The expressive freedoms are the vehicles for ensuring the sort of pluralism that is both symptomatic of a healthy democratic society and essential to the existence and proper functioning of democratic institutions. A different type of interdependence exists among other provisions. In the administration of justice, Articles 9 and 14 together forestall the occurrence of various future unchecked violations. For example, by requiring the lawfulness of any detention to be assessed at an early stage, Article 9(3) may reveal abuse of prosecutorial discretion that enabled charges to be brought arbitrarily (thereby truncating further unlawful pre-trial detention and avoiding possible violation of Article 14 in taking such charges to trial). By involving the presence of the accused when pre-trial detention is brought under judicial control, Article 9(3) helps to elicit signs of torture or ill-treatment (Article 7) which may have been inflicted to obtain a confession, and which would later result in an unfair trial (Article 14(3)(g)). The procedure may also end detention in inhuman conditions, indicated by such signs (Article 10). By bringing to a head the early determination of the lawfulness of detention Article 9(3) may also avoid unfairness of a trial stemming from prolonged delay (contrary to Article 14(1) and (3)(c)). Whatever the irregularity may be that causes a trial to be an unfair trial, including a forced confession, its early exposure could avoid a resulting custodial sentence in violation of Article 9(1), and a sentence of death in violation of Article 6. Certain rights may therefore interrupt what may otherwise be a chain of successive violations. Interoperability of Covenant Rights The Covenant is drafted and interpreted to produce a careful dovetailing of its provisions, and to ensure the intended operation of different rights even when they seemingly conflict. For example: the qualifying term ‘arbitrary’ in Article 6 distinguishes between the use of fatal force by security forces which is excessive and that which is both justified and required to fulfil the State’s protective function (to save life); the term ‘arbitrary’ in Article 9 prevents unjustified detention while allowing detention by a sentencing court following the proper administration of justice, and for some offences requiring it;132 Article 9 makes due allowance for 132 Bautista de Arellana v. Colombia, CCPR/C/55/D/563/1993, 27 October 1995 [8.3].

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measures of restraint within the exigencies of normal military service,133 and Article 8(3)(c)(ii) prevents compulsory military service (and alternative service) constituting ‘forced or compulsory labour’ contrary to Article 8(3)(a); the entitlements in Article 9(3) to be tried as expeditiously as possible and in Article 14(3)(c) to be tried without undue delay must not result in a trial so precipitous that it prejudices the accused’s right under Article 14(3)(b) to have adequate time and facilities to prepare for their defence; Article 10 recognises that those who are lawfully detained are subject to restrictions that are unavoidable in a closed environment but they otherwise enjoy all Covenant rights, enabling them, for example, to resist Article 17 interference in undue restrictions on correspondence or the unwanted presence of law enforcement personnel during medical examinations; and the non-discrimination and equality provisions of Articles 2(1), 3 and 26 in some situations prohibit differentiation and in others demand it, according to common principles based on reasonable and objective justification.134 The Committee’s approach to the expressive freedoms illustrates particularly clearly that State implementation, both in domestic law and its application, must be carefully achieved in order to give effect fully to concurrent Covenant rights. It demands recognition of the scope of rights and careful regard to principles of limitation. Excessive measures implementing some rights may sacrifice others. For example, the purpose in curtailing speech which is defamatory is to protect ‘the rights and freedoms of others’, in support of the reputational protection of Article 17. However, a criminal prohibition on defamation is rarely an appropriate legislative response;135 civil defamation is the expected standard, with available defences based on public interest and truth. Contempt of court usually attracts criminal sanctions and consists of defiance against the authority and dignity of the court. In principle, the guarantee of a public criminal trial in Article 14 is to ensure transparency as an important public and individual safeguard for the accused, but in some circumstances restrictions on media reporting are needed to uphold fair trial rights which may otherwise be prejudiced, including the presumption of innocence. However, criminal sanctions, even when available, are not always justified in contempt proceedings.136 The extent of the interference must be 133 Vuolanne v. Finland, CCPR/C/35/D/265/1987, 7 April 1989 [9.4]. 134 See chapter on Article 26: Equality Before the Law Equal Protection of the Law, section ‘Special Measures, Affirmative Action and Reasonable Accommodation’. Note also ICERD Arts 1(4) and 2(2): States may take special measures ‘for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection’, and when the circumstances warrant they must take special and concrete measures. 135 See chapter on Article 19: Freedom of Expression, sections ‘Domestic Law Requirements’, and ‘Respect of the Rights and Reputations of Others’. 136 A criminal conviction was justified in Lovell v. Australia, CCPR/C/80/D/920/2000, 24 March 2003 [9.4] (when the author published confidential documents which were directed to be discovered but were not allowed to be adduced in evidence and therefore would not become part of the published record); but not in Fernando v. Sri Lanka, CCPR/C/83/D/1189/ 2003, 31 March 2005 [9.2], for repetitious filing of motions by the author for which an

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commensurate with its function, with due regard for its consequences. Hate speech covered by Article 20(2) (the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility and violence) differs from defamation and contempt in requiring a particularly strict response in all circumstances. The fact that this type of speech must attract a sanction alone places it in a specific, confined category (and demands particular standards of the law giving effect to Article 20(2)).137 The key to resolving any apparent anomalies presented by these differentiated responses (i.e., civil but not criminal defamation laws to protect honour and reputation; the sparing use of criminal laws of contempt; and mandated prohibition combined with penal sanctions to respond to extreme forms of hate speech) is found in the scope and available latitude for restriction of the rights engaged. Common to all the measures just discussed is the principle that restrictions on freedom of expression must be necessary under Article 19(3) (restriction is mandated in Article 20 because it is always necessary to prohibit such hate speech). If restriction were permitted simply on grounds of ‘reasonableness’, that it is desirable to do so, or some other basis which (without necessity) imposes restriction in the interests of the rights and freedoms of others, entirely different (Covenant-incompatible) results could ensue for the rightsholders concerned. As the Committee expressed it with a high degree of generality in the context of implementation, States must demonstrate the necessity of restrictions and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.138

STRUCTURE AND CONTENT This work is structured as a numerical progression through Articles 1 to 27, with one chapter devoted to each. Every chapter begins with an introductory section scoping the relevant right and describing its interrelation and interdependence with other rights. Depending on the provision in question it may explain how each right supports and is supported by other rights, it may illustrate how rights are typically engaged concurrently in practice, and it may depict other relevant dynamics of interrelation. A section is devoted to issues of implementation towards the end of each chapter. The chapter content is otherwise largely driven imposition of financial penalties would have evidently been sufficient (or in Dissanayake v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.3], when the author stated at a public meeting that he would not accept any ‘disgraceful decision’ of the Supreme Court. 137 For criticism of the legislative basis for prosecutions formulated in a broad and vague fashion susceptible to wide interpretation that does not comply with the principle of legal certainty and predictability, see Nasheed v. Maldives, CCPR/C/122/D/2270/2013 & 2851/2016, 4 April 2018 [8.3]. 138 GC 31 [6].

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by the text of each Article and the individual issues which predominate in the Committee’s OP1 jurisprudence and Concluding Observations. Close attention is paid to limitation provisions and other qualifying terms. The extensive use made throughout of the Committee’s Concluding Observations serves a number of purposes: to enrich illustration of the breadth and nature of the rights under discussion, particularly when Committee decisions under OP1 alone provide limited coverage; to give visibility to patterns of violation across countries and to plot developments over time; and to provide accessible resources for further research. The date and country detail amassed in the footnotes can itself often be revealing and spark ideas for further enquiry. The work also aims to cover key UN materials relevant to each right, with ancillary reference to the work of Special Rapporteurs with specialist mandates, topic-specific resolutions, related conventions and declarations, and other significant authoritative pronouncements on international norms.

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Article 1: Self-determination

INTRODUCTION Page 37 THE COMPLEMENTARY ROLES OF SELF-DETERMINATION AND SELF-GOVERNMENT/ INDEPENDENCE 43 A LEGAL RIGHT 44 A PERMANENT RIGHT 46 ARTICLE 1(1) 46 ARTICLE 1(2) 49 ARTICLE 1(3) 52 THE ROLE OF ARTICLE 1 IN INTERPRETING OTHER RIGHTS 53 IMPLEMENTATION 55 CONCLUSION 56

Covenant Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. Comparable Provisions in Other International Instruments European Convention: no counterpart. American Convention on Human Rights: no counterpart. African Charter on Human and Peoples’ Rights: Articles 20–21 CSCE/OSCE Final Act of Helsinki 1975

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INTRODUCTION Development of the Right of Self-determination The modern concept of self-determination has its origins in the Atlantic Charter, a joint declaration in 1941 by US President Franklin D. Roosevelt and British Prime Minister Winston Churchill as a statement of the war aims of both countries on which they based their hopes for a better future for the world.1 In it ‘[t]hey respect the right of all peoples to choose the form of Government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them’.2 In the immediate aftermath of the Second World War, in the Charter of the United Nations, self-determination was conceived as a ‘principle’ rather than a ‘right’, and was yoked with ‘the equal rights’ of peoples as the basis for developing friendly relations among nations, along with other measures to strengthen universal peace.3 On cessation of the League of Nations extant mandates (other than those affecting South-West Africa, which in 1990 gained independence as Namibia) were placed under the trusteeship of the United Nations to become United Nations Trust Territories administered through the United Nations Trusteeship Council, as provided by the UN Charter. The right of self-determination received no mention in the 1948 Universal Declaration, but came to be clearly stated in 1966 in the Covenant, and in identical terms in the ICESCR.4 It is proclaimed as a collective right of ‘all peoples’, distinct from all other rights in the Covenant belonging to the individual. Much of the struggle in drafting what became Article 1 of the Covenant is attributable to widely divergent views and strongly protected interests of States, combined with difficulties in defining clear and specific obligations supporting the right of self-determination in a binding instrument. Colonial issues were at the forefront,5 because of the number of territories which then had not yet attained 1 There was no mention of self determination in the Covenant of the League of Nations, but the political importance of self determination was strengthened by the Report of the International Committee of Jurists’ Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (October, 1920), see Jane A. Hofbauer, Sovereignty in the Exercise of the Right to Self Determination (Brill, 2016), pp. 64 5. 2 The Atlantic Conference and Charter, 1941, joint declaration released by US President Franklin D. Roosevelt and British Prime Minister Winston Churchill on 14 August 1941 [3]. 3 Charter of the United Nations, 24 October 1945, 1 UNTS XVI [2] (signed at San Francisco on 26 June 1945). 4 See Introduction, above. Among the leading general texts on self determination are Antonio Cassese, Self Determination of Peoples: a Legal Reappraisal (Cambridge University Press, 1995), a comprehensive account, covering the transformation from political ideal to international legal standard; Robert McCorquodale, Self determination in International Law (Ashgate/Dartmouth, 2000); Karen Knop, Diversity and Self Determination in International Law (Cambridge University Press, 2002), a study of the interpretation of the right, and comment on the exclusion of groups that self determination most affects. 5 Harold Jacobson, ‘The United Nations and Colonialism: a Tentative Appraisal’, (1962) 16(1) International Organization, p. 37, at p. 37 (colonialism was generally understood in terms of Western rule of non metropolitan areas).

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independence.6 By 1960, the process of decolonisation had been boosted by the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which declared that ‘[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.7 Though expressed as a right, it had its limitations in a non-binding declaration. The right of self-determination in binding form in the Covenant was therefore a pronounced advance. In recognition of the importance of natural resources to support the national interests and economic independence of States, in 1962 the General Assembly passed Resolution 1803 (XVII) on ‘Permanent Sovereignty Over Natural Resources’, acknowledging that the ‘right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned’. It was subsequently enshrined in moderated form in Article 1(2) of the Covenant.8 Some of the underpinnings of the UN Charter, including sovereign equality and the principle of equal rights and self-determination of peoples, were further developed by 1970 in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, which marked the 25th anniversary of the United Nations. It placed renewed emphasis on restraint in the threat or use of force against the territorial integrity or political independence of any State, the duty of non-intervention in matters within the domestic jurisdiction of any State, and the right of each State to choose and develop its political, social, economic and cultural systems.9 For indigenous peoples, a significant milestone in 2007 was the UN Declaration on the Rights of Indigenous Peoples, cementing in Article 3 indigenous peoples’ right to self-determination, by which they may freely determine their political status and pursue their economic, social and cultural development. They were also assured (in Article 4) the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.10 Fifty years after completion of the twin covenants its 6 Tomuschat examined the right of self determination following the era of decolonisation, in Christian Tomuschat, Modern Law and Self Determination (Martinus Nijhoff, 1993). 7 Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, A/RES/1514(XV) [2]. 8 GA Res 1803 (XVII) of 14 December 1962, ‘Permanent Sovereignty Over Natural Resources’ [1]. 9 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/ 2625(XXV). The Declaration describes self determination in terms of its Charter origins. 10 United Nations Declaration on the Rights of Indigenous Peoples: resolution adopted by the General Assembly, 2 October 2007, A/RES/61/295, Arts 3 and 4. See also ILO, Indigenous and Tribal Peoples Convention, C169, 27 June 1989, in which indigenous peoples are accorded

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importance is that ‘several of the Declaration’s provisions and general positions, including its Article 3 and the acceptance of peoples’ rights in general, must be understood to be reflective of customary international law’.11 The European Convention does not contain a right of self-determination, though an important initiative in 1975 to improve East/West relations was the Helsinki Final Act, which in Principle VIII addressed equal rights and selfdetermination of peoples, and underwent restatement in 1989 at the time of the break-up of the Soviet Union, in the Follow up to the Helsinki Conference.12 The African Charter is particularly important among regional instruments in the development of the rights of ‘peoples’. In Article 20(1), all peoples ‘shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.’ In Article 20(2), ‘[c]olonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community’.13 The variety of circumstances in which the right of self-determination arises, as well as the means by which self-determination conflicts are settled, are ably illustrated in the works of Hurst Hannum and Mark Weller.14 The Committee has encountered issues of self-determination for several decades in the reporting process yet has not produced clear guidance across all components of Article 1 in

11

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13 14

entitlements of self governance concerning their lands, beliefs, and economic and cultural development. Marc Weller and Jessie Hohmann, The UN Declaration on the Rights of Indigenous Peoples: a Commentary (Oxford University Press, 2018), p. 64. See also Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self Determination, Culture and Land (Cambridge University Press, 2007); Melissa Castan, ‘DRIP Feed: the Slow Reconstruction of Self determination for Indigenous Peoples’, in Sarah Joseph and Adam Macbeth (eds), Research Handbook on International Human Rights Law (Edward Elgar, 2010), p. 492; Mauro Barelli, ‘The Role of Soft Law in the International Legal System: the Case of the United Nations Declaration on the Rights of Indigenous Peoples’, (2009) 58(4) Int. Comp. L.Q., p. 957, at p. 966; Emmanuel Voyiakis, ‘Voting in the General Assemby as Evidence of Customary International Law?’, in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011), p. 209, at pp. 209 14. OSCE, Conference on Security and Co operation in Europe (CSCE): Final Act of Helsinki, 1 August 1975; Concluding Document of the Vienna Meeting of the CSCE on the Follow up to the Helsinki Conference. For an appraisal of CSCE and OSCE initiatives on self determination, see Cassese, Self Determination of Peoples, at pp. 288 301; on the role of the law of self determination in the process of the formation of States, with the continuing creation of new States, see David Raic, Statehood and the Law of Self Determination (Martinus Nijhoff, 2002). Rachel Murray and Steven Wheatley, ‘Groups and the African Charter on Human and Peoples’ Rights’, (2003) 25 Hum. Rts Q., p. 213. For discussion of ethnic, religious and regional conflicts with reference particularly to Hong Kong, India, Nicaragua, Northern Ireland, Spain, Sri Lanka and the Sudan, see Hurst Hannum, Autonomy, Sovereignty, and Self Determination: the Accommodation of Conflicting Rights (University of Pennsylvania Press, 2011). Marc Weller, in ‘Settling Self determination Conflicts: Recent Developments’, (2009) 20 EJIL, p. 111, reviewed over forty settlements and draft settlements and categorised the emerging patterns of practice.

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its Concluding Observations, or even in General Comment 12.15 The limited value of that General Comment is attributable in part to its age, the failure of States to report adequately against Article 1, and the paucity of jurisprudence given the non-justiciability of claims for collective rights under OP1. The Committee has nevertheless addressed certain acute situations with some consistency, especially those affecting Namibia and Palestine (between 1981 and 1991), questioning States on their stance and the measures taken in the light of the Article 1(3) obligation to promote the realisation of that right,16 with particular reference to relevant Security Council resolutions.17 It also sustained its opposition to public and private support for the apartheid regime of South Africa, which in some cases inevitably raised the question of ratification by States of the International Convention on the Suppression and Punishment of the Crime of Apartheid,18 and invited explanation of their failure to do so.19 In its broader approach to Article 1 the Committee has encouraged States to make progress in allowing certain population groups to exercise the right,20 and in connection with Article 1(2) it has consistently raised Article 1 in combination with Articles 2, 26 and 27 when addressing threats to the natural wealth and resources habitually used by indigenous peoples, and the need for effective consultation with them in decisionmaking that has an impact on their rights.21 The CESCR has not issued a General Comment on the counterpart provision in ICESCR. At one stage in the drafting process of both the ICESCR and the Covenant, it was suggested that the right of a people or nation to determine its 15 General Comment No. 12: Article 1 (Right to Self determination), The Right to Self determination of Peoples, 13 March 1984 (GC 12). 16 Italy A/36/40 (1981) 111; Netherlands A/37/40 (1982) 96, 117; Japan A/37/40 (1982) 57, 78; Australia A/38/40 (1983) 139; Austria A/38/40 (1983) 181; France A/38/40 (1983) 294, 316; Peru A/38/40 (1983) 260; Germany (GDR) A/39/40 (1984) 485; Trinidad and Tobago A/40/40 (1985) 109; Venezuela A/40/40 (1985) 167; Finland A/41/40 (1986) 175, 176; Germany (FRG) A/41/40 (1986) 267, 268; Sweden A/41/40 (1986) 109; Luxembourg A/41/40 (1986) 57; Tunisia A/42/40 (1987) 112, 113; Ecuador A/43/40 (1988) 319, 320; Belgium A/43/40 (1988) 466, 487; France A/43/40 (1988) 370 2; Norway A/44/40 (1989) 59; Mexico A/44/40 (1989) 103, 104; Uruguay A/44/40 (1989) 280, 281; New Zealand A/44/40 (1989) 373, 374; Portugal A/45/40 (1990) 131; Panama A/46/40 (1991) 422. 17 Security Council resolutions 385 (1976), 431 (1978), 432 (1978) and 435 (1978). 18 Germany (FRG) A/33/40 (1978) 337; Italy A/36/40 (1981) 111; Portugal A/36/40 (1981) 317 (accession to ICERD was in progress); France A/38/40 (1983) 294; Australia A/38/40 (1983) 139; Luxembourg A/41/40 (1986) 57; Germany (FRG) A/41/40 (1986) 267; Czechoslovakia A/ 41/40 (1986) 318; Tunisia A/42/40 (1987) 112; France A/43/40 (1988) 371; Japan A/43/40 (1988) 594; Netherlands A/44/40 (1989) 198; Uruguay A/44/40 (1989) 280; New Zealand A/44/ 40 (1989) 373; Mauritius A/44/40 (1989) 494; Portugal A/45/40 (1990) 131; Panama A/46/40 (1991) 422. 19 Sweden A/41/40 (1986) 109. 20 UK A/34/40 (1979) 303; Morocco CCPR/C/79/Add.113 (1999) 9; Morocco CCPR/CO/82/MAR (2004) 8 (self determination for the people of Western Sahara). See also Sudan CCPR/C/SDN/ CO/3 (2007) 7 (noting the efforts made on self determination in Southern Sudan (the Interim National Constitution provided for a referendum on self determination)). 21 See Article 1(2) below.

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‘political status’ be written into the Covenant, and the right to determine its ‘economic, social and cultural status’ into the ICESCR. After reflection it was realised this was based on an artificial distinction between political status and economic, social and cultural status. Every people or nation was or should be an integrated entity. A people or nation that could not freely determine its political status could hardly determine its economic, social and cultural status and vice versa.22 The intended mutuality between both covenants is particularly important to the right of self-determination, to benefit the least developed and most recently independent countries. It was described in the Proclamation of Teheran as the indivisibility of human rights and fundamental freedoms such that ‘the full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible’, and in similar but broader terms later in the Vienna Declaration and Programme of Action.23 The Committee made an interesting comment during the examination of Mali’s initial report, when pointing out that although both categories of human rights, namely, civil and political rights, and economic, social and cultural rights, were interrelated and interdependent, the obligations under the ICESCR could not be used as a pretext for avoiding or ignoring obligations under the Covenant.24 Interaction between Article 1 and Other Rights Article 1 remains distinct from other Covenant rights as the only collective right, even though members of ‘peoples’ are also beneficiaries of other Covenant rights, particularly the non-discrimination protection of Articles 2 and 26, and as those belonging to minorities in Article 27. The expressive freedoms (Articles 19, 21 and 22) have also been shown to have practical importance in combination with those rights in situations where interference with the traditional lands and economic activities of indigenous peoples (contrary to Article 1(2)) prompts them to protest their rights, for example, against major infrastructure projects, and this is met with violence. Article 14 may also become relevant, such as when Sami in Sweden faced an unjustifiably high burden of proof in demonstrating land ownership to realise their right to self-determination, and legal aid was not readily available to enable them to act as litigants in Sami land disputes. Articles 1 and 25 are clearly related in referenda concerning self-determination and in the political freedoms to be guaranteed in the long term. Article 1 had a special role in

22 A/2929 (1955), Ch.IV, p. 14 [14]. 23 Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April 13 May 1968, A/CONF.32/41 (1968) [13]; UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23 [5]. See Introduction, section ‘Indivisibility of Rights’. In this context note also the terms of the UN Charter Art. 55, discussed below. 24 Mali A/36/40 (1981) 231.

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interpreting Article 25 in Gillot v. France concerning the eligibility to vote in referenda for New Caledonia’s self-determination.25 Internal and External Self-determination A distinction exists between ‘internal’ and ‘external’ self-determination.26 ‘Internal self-determination’, according to the Third Committee drafters, referred to the right of a nation already constituted as a State to choose its own form of government and freely determine its own policies, free from outside interference.27 It has variously been described as ‘the right of the people (population) of an existing state to exert control over its “own” constitution and government’, in other words, its right to democracy,28 or the ‘right to authentic self-government, that is, the right of a people really and freely to choose its own political and economic regime’.29 It is closely associated with the right of every citizen to take part in the conduct of public affairs in Article 25. In this context non-discrimination is particularly important, and the Committee on the Elimination of Racial Discrimination (CERD) in its General Recommendation on the right to self-determination enjoined governments to be ‘sensitive towards the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the government of the country of which they are citizens’.30 ‘External self-determination’ is more specifically associated with throwing off colonial rule. To CERD it implies that all peoples have the right to determine 25 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002. 26 For detailed explanation, see James Summers, ‘The Internal and External Aspects of Self determination Reconsidered’, in Duncan French (ed.), Statehood and Self Determination: Reconciling Tradition and Modernity in International Law (Cambridge University Press, 2013), pp. 229 49; Kalana Senaratne, ‘Beyond the Internal/External Dichotomy of the Principle of Self Determination’, (2013) 43(2) Hong Kong L.J., p. 463. 27 A/3077 (1955), p. 12 [32]. As expressed by the Netherlands (A/C.3/SR.447 [4]), ‘internal self determination, or self determination on the national level, should be distinguished from that of external self determination, or self determination on the international level. The former was the right of a nation, already constituted as a State, to choose its form of government and to determine the policy it meant to pursue. The latter was the right of a group which considered itself a nation to form a State of its own.’ Vidmar argues that the idea of a free choice of political system, conferred to peoples by virtue of the right of self determination, is difficult to reconcile with the view that the same right demands one particular political system: Jure Vidmar, ‘The Right of Self Determination and Multiparty Democracy: Two Sides of the Same Coin’, (2010) 10 HRLR, p. 239, at p. 267. 28 Alan Rosas, ‘Internal Self Determination’, in Tomuschat, Modern Law and Self determination, p. 225, at p. 232. For analysis of the role of self determination in reference to Kosovo and Crimea and whether it holds an intrinsic link to a democratic form of government, see Vladyslav Lanovoy, ‘Self Determination in International Law: a Democratic Phenomenon or an Abuse of Right’, (2015) 4 Cambridge J. Int. & Comp. L., p. 388. 29 Cassese, Self Determination of Peoples, p. 101. 30 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS, vol. 660, p. 195 (ICERD); CERD General Recommendation No. 21: Right to Self determination: 23 August 1996 (CERD GR 21) [5].

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freely their political status and their place in the international community based on the principle of equal rights, and exemplified by the liberation of peoples from colonialism and by the prohibition against subjecting peoples to alien subjugation, domination and exploitation.31 The right to self-determination should, however, be distinguished from any supposed general right of peoples to declare unilaterally secession from a State.32

THE C OMPL EMENTA RY ROL ES O F S E L F - D E T E R M I N AT I O N A N D S E L F - G O V E R N M E N T / INDEPENDENCE In drafting Article 1 of the Covenant a number of provisions of the UN Charter were used to clarify the nature of certain State commitments. One of the purposes of the UN, expressed in Article 1(2) of the Charter, is to develop friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples. Article 55 of the Charter is concerned with promoting measures of international economic and social cooperation, ‘[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’.33 In both provisions self-determination is referred to as a ‘principle’. The Charter urged metropolitan powers (i.e., the 31 CERD GR 21 [4]. 32 CERD GR 21 [6]: ‘In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State. In this respect, the Committee follows the views expressed in An Agenda for Peace . . . namely, that a fragmentation of States may be detrimental to the protection of human rights, as well as to the preservation of peace and security. This does not, however, exclude the possibility of arrangements reached by free agreements of all parties concerned.’ Also consult Rosalyn Higgins, ‘Self Determination and Secession’, in Julie Dahlitz (ed.), Secession and International Law: Conflict Avoidance Regional Appraisals (United Nations Publications, 2003), p. 21; Anne Bayefsky, Self determination in International Law: Quebec and Lessons Learned: Legal Opinions (Martinus Nijhoff, 2000) (on the relationship between self determination and a right of secession); decision of the Supreme Court of Canada re the secession of Quebec (international law ‘does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their “parent” state’), Reference re Secession of Quebec, [1998] 2 SCR 217. For the Committee’s questioning on issues of secession see, e.g., Byelorussian SSR A/33/40 (1978) 525, 540; USSR A/33/40 (1978) 414, 433; Spain A/34/40 (1979) 205; Ukrainian SSR A/34/40 (1979) 253; Canada A/35/40 (1980) 159; Sri Lanka A/39/40 (1984) 100; Yugoslavia A/47/40 (1992) 433 5, 438 9. 33 Certain fundamental Charter principles are reflected in GC 12, particularly in the comment that ‘history has proved that the realization of and respect for the right of self determination of peoples contributes to the establishment of friendly relations and cooperation between States and to strengthening international peace and understanding’ (GC 12 [8]). Castellino perceives self determination as both a potential threat to world order, while holding out the promise of longer term peace and security based on values of democracy, equity and justice: Joshua Castellino, International Law and Self Determination: the Interplay of the Politics of Territorial Possession with Formulations of Post Colonial National Identity (Martinus Nijhoff, 2000).

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parent States of a colony or other dependent territory) to endeavour to ‘develop self-government’ in non-self-governing territories (Article 73(b)), and administering authorities to promote the development of the inhabitants of trust territories towards ‘self-government or independence’ (Article 76(b)). There was some discussion in the Commission on Human Rights during the drafting of Article 1 on the relationship between the principle of selfdetermination (Charter Articles 1 and 55) and the right to self-government or independence (Charter Articles 73(b) and 76(b)). Some delegates observed that the UN could not promote the principle of self-determination of peoples (in accordance with Articles 1 and 55) without promoting the right of the peoples of non-self-governing and trust territories to self-government or independence (in accordance with Articles 73(b) and 76(b)), or vice versa. It would be absurd to say that under the Charter the peoples of non-self-governing and trust territories should have the right to self-government or independence, but not the right to selfdetermination. The right of self-determination was a universal right.34

A LEGAL RIGHT In the Third Committee a number of countries opposed to the inclusion of an article on self-determination argued that to be effective both of the covenants then being developed must be acceptable to as many States as possible, and this provision might deter ratification; all UN Members had accepted the UN Charter provisions concerning self-determination, but self-determination could only be achieved progressively, in line with the readiness of the peoples of nonself-governing territories and trust territories to govern themselves.35 The General Assembly gave impetus to Article 1 by appointing the Commission on Human Rights to study the means of ensuring the right of selfdetermination, and it provided the framework terms of a draft.36 In the Commission there were three schools of thought on whether ‘selfdetermination’ was a ‘political principle’ or a ‘legal right’, and on the approach to be taken in the text. The first was that self-determination was a political principle of the highest importance, not strictly a right. Articles 1 and 55 of the Charter spoke of the ‘principle’, not ‘right’, of self-determination. The second was that self-determination was both a ‘right’ and a ‘principle’, indeed, the most fundamental of all human rights. It was a collective right appertaining to all peoples and all nations, and no peoples or nations (or their individual members) 34 A/2929 (1955), Ch. IV, p. 14 [6] [7]. Weller and Hohmann, The UN Declaration on the Rights of Indigenous Peoples, p. 71, observe that the UN Charter provides that the principle of territorial integrity of States applies only to State to State relationships, and the principle of self determination attaches to peoples and not to States. 35 A/3077 (1955) p. 12 [29] [30]. 36 GA Res. 545 (VI) (1952).

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would be free if denied that right. It was therefore essential that it should be written into both covenants, as it was a prerequisite to the enjoyment of all the rights and freedoms of the individual. The third was that self-determination could be the subject of a special declaration or a separate covenant, depending upon whether it was to be considered as a principle or a right. The two covenants would then be less controversial and more generally acceptable. Another possibility was to mention the principle or the right of self-determination in the preamble to each covenant, to signify its importance without creating any possible legal uncertainty as to its precise meaning.37 When this discussion resumed in the Third Committee those inclined against strict commitments argued that as a ‘principle’, rather than a’ right’, it had very strong moral force but was too complex to articulate in a legally enforceable instrument, with many terms (including ‘peoples’, ‘nations’ and ‘right of selfdetermination’) undefined. As a collective right it was inappropriate to include in a covenant attempting to lay down the rights of individuals. It was not included in the Universal Declaration, which implied that it was not essential to the enjoyment of all other human rights. This last point was disputed by those seeking to include a ‘right’ of self-determination, who argued that because it was essential for the enjoyment of all other human rights it must be in the forefront of the covenants. No attempt was being made to broaden or distort the provisions of the Charter which, although proclaiming self-determination as a ‘principle’, meant that Member States were committed to ‘respect’ the right which derived from it. They also pointed out that the General Assembly had decided to devote an article to this right in both covenants and indicated the terms in which it should be drafted.38 Article 1 thereby came to express the ‘right’ of self-determination. Dependency on the right of self-determination for the enjoyment of other Covenant rights was also established, and later explained in General Comment 12 in the following terms: The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.39

This was echoed in such cases as Lubicon Lake Band v. Canada and E.P. et al. v. Colombia with the statement that ‘the Committee reaffirms that the Covenant recognizes and protects in most resolute terms a people’s right to selfdetermination as an essential condition for the effective guarantee of observance 37 A/2929 (1955), Ch.IV, pp. 13 14, [2] [5]. 38 A/3077 (1955), pp. 12 13 [31] [37]. See also GA Res. 545 (VI) (1952).

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39 GC 12 [1].

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of individual human rights and for the promotion and strengthening of those rights’.40

A PE R M A N E N T R I G H T The right of self-determination is seen by many scholars, though by no means all, as an enduring right, not extinguished on achieving independence. It was certainly recognised in the drafting of Article 1 that there were nations that had formerly been sovereign but were no longer masters of their own destinies; and nations, now independent, that might otherwise lose their right of self-determination.41 The text of Article 1(1) itself supports the enduring nature of the right, in the affirmation that ‘[a]ll peoples have the right of self-determination’. The corresponding obligation in Article 1(3) on all States Parties is a continuing one ‘to respect [the right of self-determination] in conformity with the provisions of the Charter’.42 The right to self-determination also goes hand-in-hand with the Charter purpose of ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. From its observations in the reporting process it is clear that the Committee considers the right to be a continuing one, applicable to ‘all peoples’ (not just the colonised), and not, for example, extinguished at the moment of independence.43

A RT I C L E 1 ( 1 ) All Peoples: a Collective, Not Individual, Right At a time when draft Article 1(1) referred to ‘all peoples and all nations’ possessing the right of self-determination, the word ‘peoples’ was understood to mean 40 Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 26 March 1990 [13.3]; E.P. et al. v. Colombia, CCPR/C/39/D/318/1988, 25 July 1990 [8.2]. 41 A/2929 (1955), Ch.IV, p. 14 [10]. 42 Nowak, CCPR Commentary, at p. 14, emphasises the present tense of the word ‘have’ in Art. 1(1), and equivalent terminology in Arts 6(1) and 9(1), which is not ‘consumed’. Cf. Cassese, Self Determination of Peoples, p. 101. 43 Jordan A/37/40 (1982) 170 (the statement that ‘Jordan believed that self determination was a continuous process and did not end with the declaration of independence’ showed that the government was conscious of its duties towards Jordanian society and its aspirations); Sri Lanka A/39/40 (1984) 100 (the right of self determination ‘was a right of a continuing character the right of the whole people to choose their form of government and to elect their chosen representatives to carry out policies endorsed by the electorate’); Australia A/43/40 (1988) 428 (Australia considered that the right of self determination was not fully exercised by simply gaining independence after a colonial era); Sri Lanka A/46/40 (1991) 461 (the separatists centred their claim on a traditional homeland but the principle of self determination was interpreted in Sri Lanka as being in effect only at the point of decolonisation); Azerbaijan CCPR/C/79/Add.38 (1994) 6 (the Committee recalled that under Art. 1 the principle of self determination ‘applies to all peoples and not merely to colonized peoples’.

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peoples in all countries and territories, whether independent, trust or non-selfgoverning. It was suggested that ‘peoples’ should apply to ‘large compact national groups’, to ‘ethnic, religious or linguistic minorities’, and to ‘racial units inhabiting well-defined territories’; it should be understood in its most general sense and no definition was thought necessary. The words ‘all nations’ were added in order to emphasise the universal character of the right,44 but deleted by the working party appointed to develop the drafting further, since ‘peoples’ was considered to be more comprehensive and consistent with the Preamble to the Charter (though there was still concern that the meaning of ‘peoples’ differed across paragraphs and was far from clear). Some found the deletion of ‘nations’ disarming because it strengthened the argument that separatist movements within States could be encouraged.45 A proposal was made that ‘the State shall ensure to national minorities the right to use the native tongue and to have the national schools, libraries, museums and other cultural and educational institutions’. This was not adopted because to some it would retard the process of assimilation of immigrants to a new country and prevent the formation of a homogeneous society. Others feared it might encourage separatist or irredentist movements and might bring about a multiplication of barriers and frontiers. Minorities were then already dealt with in what became Article 27.46 Antonio Cassese suggests ‘all peoples’ refers to any people irrespective of the international political status of the territory they inhabit. It applies not only to peoples that have not yet attained political independence but also to those of independent and sovereign States.47 In relation to minorities he considered that a national or ethnic group constitutionally recognised as a component part of a multinational State is a ‘people’ entitled to self-determination, though Kiss was wary of constitutional recognition as a requirement.48 The primary source of protection for individuals belonging to a minority group is Article 27.49 In consequence of the right of self-determination being expressed as a collective right, the Committee has treated petitions based on Article 1 by individuals (rather than on behalf of a people) as inadmissible, since individuals

44 A/2929 (1955), Ch.IV p. 14 [10]. 45 A/3077 (1955), p. 22 [63]. 46 A/2929 (1955), Ch.IV, p. 15 [22]. 47 Antonio Cassese, ‘The Self Determination of Peoples’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981) p. 92, at p. 94. 48 Cassese, ‘The Self Determination of Peoples’, at p. 96. Cf. Alexandre Kiss, ‘The Peoples’ Right to Self determination’, (1986) 7 HRLJ, p. 165, at p. 173. 49 On the relationship between self determination and minority rights in international law, see Patrick Thornberry, ‘Self Determination, Minorities, Human Rights: a Review of International Instruments’, (1989) 38(4) Int. Comp. L.Q., p. 867; Thomas D. Musgrave, Self determination and National Minorities (Clarendon Press, 1997).

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cannot be victims of violation of Article 1.50 (This has even been the convenient basis for rendering less well-conceived claims inadmissible.51) There is therefore little OP1 guidance on key fundamental aspects of Article 1, such as whether the Mikmaq in Mikmaq Tribal Society v. Canada, the Sami in Ivan Kitok v. Sweden, the Lubicon Lake Band in Lubicon Lake Band v. Canada or the Rehoboth Baster Community in Diergaardt et al. v. Namibia, constituted a ‘people’.52 Such cases have, however, raised separate issues admissible under Article 27. The lack of Committee competence under OP1 to examine Article 1 claims does not, evidently, affect the obligations on States concerning implementation. Article 2(1) obliges States to ‘respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’. It is clear from the Committee’s review of State reports, and in particular from the requirements for implementation discussed below, that Article 1 is not excluded. Meaning of Self-determination When the draft Article 1 considered by the Commission on Human Rights was defined as the right of all peoples and nations ‘freely to determine their political, 50 Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 26 March 1990 [13.3], [32.1] (expro priation of the territory of the Lubicon Lake Band to grant oil and gas exploration leases). The Committee commented that OP1 provides a procedure under which individuals can claim that their individual rights have been violated, and these are set out in Part III of the Covenant, in Arts 6 27. Followed, e.g., in E.P. et al. v. Colombia, CCPR/C/39/D/318/1988, 25 July 1990 [8.2] (asserted sovereignty over an archipelago off mainland Colombia under the doctrine of uti possidetis as members of an overwhelmingly English speaking Protestant population); A.B. et al. v. Italy, CCPR/C/40/D/413/1990 at 30, 2 November 1990 [3.2] (alleged violation of Art. 1 against the people of South Tirol by encroachment on the ‘autonomous legislative and executive regional power’ of the province); R.L. et al. v. Canada, CCPR/C/43/D/358/1989 at 16, 5 November 1991 [6.2] (members of the Whispering Pines Indian Band, living in British Columbia, challenged certain aspects of the legislation that was enacted following Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981); Käkkäläjärvi et al. v. Finland, CCPR/C/124/D/2950/2017, 2 November 2018 [8.6] (election criteria to Sami Parliament). 51 Hom v. Philippines, CCPR/C/78/D/1169/2003, 30 July 2003 [4.2] (alleged deprivation of retire ment benefits, the author’s very means of subsistence); Wilson v. Australia, CCPR/C/80/D/1239/ 2004, 1 April 2004 [4.3] (unfair trial allegations); and Sroub v. Czech Republic, CCPR/C/97/D/ 1573/2007, 27 October 2009 [8.5] (claim for restitution of property seized in the Communist era); S. v. Denmark, CCPR/C/122/D/2642/2015, 26 March 2018 [7.4] (deportation). 52 Mikmaq Tribal Society v. Canada, Communication No. 78/1980, Supp. No. 40 (A/39/40) at 200 (1984), 29 July 1984 [8.2] (the author claimed not to represent a minority within the meaning of Art. 27, but a people within the meaning of Art. 1; however, he did not prove he was authorised to act as a representative on behalf of the Mikmaq Tribal Society and the claim was inadmissible); Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [6.3] (loss of Sami status to exercise traditional Sami rights to land and water); Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.3] (claim that the 124 year long existence of Rehoboth as a continuously organised territory was brought to an end at the time of Namibia’s independence, as not allowed to pursue economic social and cultural development, nor allowed to freely dispose of the community’s national wealth and resources).

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economic, social and cultural status’ it was said to be ‘a very comprehensive conception’ of the right: every people or nation should be free to establish its own political institutions, to develop its own economic resources, and to direct its own social and cultural evolution, without the interference of other peoples or nations. Although attempts were made to give substance to the right by exemplifying it (to include the right of every people or nation, for example, ‘to establish an independent State’, to ‘choose its own form of government’, to ‘secede from or unite with another people or nation’) an abstract statement of the right was thought preferable to any incomplete enumeration. Among the less convincing arguments against the text proposed was that the definition was too broad in that it might sanction the burning of foreign books and the confiscation of foreign investments. More credibly, it was criticised for not being self-explanatory or self-sufficient, and the meaning of ‘status’ was far from clear.53 General Comment 12 offers little guidance on the meaning of selfdetermination beyond reciting the text: ‘Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely “determine their political status and freely pursue their economic, social and cultural development”. The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law.’54 A more complete picture is provided by the Committee’s Concluding Observations and other materials on Article 1(2) and (3), particularly the obligations to ‘promote the realization of the right of self-determination’ and to ‘respect that right’, considered next.

A RT I C L E 1 ( 2 ) Freedom to Dispose of Natural Wealth and Resources Text was proposed in the Commission on Human Rights which would provide ‘permanent sovereignty over [peoples’] natural wealth and resources’, and that ‘[i]n no case may a people be deprived of its own means of subsistence on the grounds of any rights that may be claimed by other States’. Against this it was argued that ‘permanent sovereignty’ was not a tenable concept, as any State could voluntarily limit its own sovereignty at any time. The proposition was also said to be dangerous as it would sanction unwarranted expropriation or confiscation of foreign property and would subject international agreements and arrangements to 53 A/2929 (1955), Ch.IV, pp. 14 15 [11] [15]. For an account of the law of self determination as the product of the interaction between nationalism and international law, see James Summers, Peoples and International Law: How Nationalism and Self Determination Shape a Contemporary Law of Nations (Martinus Nijhoff, 2007). 54 GC 12 [2].

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unilateral renunciation. In support of the text, it was explained that the intention was to warn against such foreign exploitation as might result in depriving the local population of its own means of subsistence.55 In the Third Committee some countries found the text acceptable, but others considered it too far-reaching and to infringe upon existing international treaties and agreements between States, and could be interpreted to mean expropriation without just compensation. It could discourage foreign investors and could harm the policy of assistance to underdeveloped countries.56 It eventually became a right of peoples, for their own ends, to dispose freely of their natural wealth and resources. As General Comment 12 explains, it entails corresponding duties for all States and the international community.57 Article 1 is supported by the terms of Article 47 of the Covenant, which states that ‘Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully their natural wealth and resources.’58 Traditional Lands and Economic Activities of Indigenous People A number of claims under Article 1(2) have resulted from the economic exploitation of resources at the expense of traditional livelihoods of indigenous populations. An aspect of them has often been the limited engagement afforded to indigenous people in decision-making on issues affecting their traditional lands and economic activities. This is an issue that has also commonly been raised in the reporting process,59 and represents an area of overlap between Article 1 and Article 27.60 In a number of cases, the Article 1 claim was inadmissible (for want of OP1 competence, already discussed), while parallel Article 27 allegations

55 A/2929, Ch.IV (1955), p. 15 [19] [21]. 56 A/3077 (1955) p. 15 [44]. 57 GC 12 [5]. 58 A review is undertaken of OECD and UN instruments for improved human rights awareness and compliance in the context of economic investments by Hans Morten Haugen, ‘Peoples’ Right to Self determination and Self Governance Over Natural Resources: Possible and Desirable?’, (2014) EiP 8(1), p. 3. 59 Canada CCPR/C/79/Add.105 (1999) 8 (noting that the Royal Commission on Aboriginal Peoples concluded that without a greater share of lands and resources institutions of aboriginal self government will fail); Sweden CCPR/CO/74/SWE 15 (decision making in the fields of hydroelectricity, mining and forestry projects, as well as the privatisation of land (Arts 1, 25 and 27)); Sweden CCPR/C/SWE/CO/6 (2009) 20 (the natural environment and necessary means of subsistence for the Sami people (Arts 1, 25 and 27)); Chile CCPR/C/CHL/CO/5 (2007) 19 (claims by indigenous peoples, the Mapuche in particular, had not been met, and slow progress was made in demarcating indigenous lands; dismay that ‘ancestral lands’ were still threatened by forestry expansion and megaprojects in infrastructure and energy (Arts 1 and 27)); Mexico CCPR/C/MEX/CO/5 (2010) 22 (ensure effective consultation of indigenous peoples for deci sion making in all areas that have an impact on their rights (constitutional reform discussions), in accordance with Art. 1(2)). 60 See chapter on Article 27: Ethnic, Religious and Linguistic Minorities, sections ‘Interference So Substantial as to Amount to the Denial of Article 27 Rights’ and ‘Conflict between State/Private Interests and Those of the Minority Group in the Exploitation of Natural Resources’.

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succeeded.61 Articles 2(1) and 26 are often raised together in Concluding Observations, for example, when indigenous communities have been subjected to ill-treatment, threats and harassment when protesting against hydroelectric infrastructure construction projects, mining operations or tourism facilities on their territory.62 The situation of indigenous peoples has been improved by implementation of the International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169). However, all measures required by virtue of Article 1 need to be implemented. When Finland was working towards ratifying the ILO Convention the Committee still recommended that it increase efforts to revise domestic legislation to guarantee fully the rights of the Sami people in their traditional land, to ensure respect for the right of Sami communities to free, prior and informed participation in policy and development processes that affect them.63 In neighbouring Sweden, even though the Sami people had been able to realise their right to selfdetermination, the duty to consult on extractive and development projects was limited and a high burden of proof was placed on Sami claimants in demonstrating land ownership, exacerbated by the lack of access to legal aid by Sami villages.64 It is further worth noting in this context that the right of peoples freely to dispose of their natural resources also raises the question of protection from pollution.65 61 Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 26 March 1990 [32.2] (the Committee supported the Art. 27 claim, though with very little reasoning since the State already offered a suitable remedy); Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009 [6.3], [7.7] (the Arts 1 and 27 claims were both based on the diversion of groundwater from the author’s land which destroyed the ecosystem, causing degradation of the land, the drying out of the wetlands, widespread loss of livestock and the collapse of the community’s only means of survival). The Art. 27 claims failed in Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.5]; Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.8]; Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.6]. For a study of a particular indigenous group, see Rohaida Nordin and Matthew Witbrodt, ‘Self Determination of Indigenous Peoples: the Case of the Orang Asli’, (2012) 20 Asia Pac. L. Rev., p. 189. 62 Panama CCPR/C/PAN/CO/3 (2008) 21 (the absence of a process of consultation to seek the prior, free and informed consent of indigenous communities to the exploitation of natural resources; the ill treatment, threats and harassment to which members of the communities had reportedly been subjected on the occasion of protests against hydroelectric infrastructure construction projects, mining operations or tourism facilities on their territory; and the non recognition of the special status of indigenous communities that were not within a comarca (Arts 1, 26 and 27 of the Covenant). See also Venezuela CCPR/C/VEN/CO/4 (2015) 21 (some indigenous peoples had been victims of acts of violence committed by State and non State actors (Arts 1, 2, 6, 7 and 27)). 63 Finland CCPR/C/FIN/CO/6 (2013) 16 (State committed to ratifying the ILO Convention No. 169, but the Sami still lacked participation and decision making powers over matters of funda mental importance to their culture and way of life, including rights to land and resources (Arts 1, 26 and 27)). 64 Sweden CCPR/C/SWE/CO/7 (2016) 38 (Arts 1, 2, 14, 26 and 27). 65 France A/38/40 (1983) 294 (one member recalled the right of peoples freely to dispose of their natural resources implied the right to protect the latter from pollution and asked how France reconciled the right of the peoples of its territories in the South Pacific to protect themselves from

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A RT I C L E 1 ( 3 ) At a time when the proposed text of Article 1(3) was to provide that States be obliged to promote the realisation of the right of self-determination, as they were responsible for the administration of non-self-governing and trust territories, it was amended to include all States, whether or not they administered any nonself-governing or trust territories. It was further generally agreed that they should both ‘promote’ and ‘respect’ the right of self-determination, and should do so ‘in conformity with the provisions of the United Nations Charter’. There were two qualifying clauses which were not adopted. The first was that States should promote the right of self-determination ‘in accordance with constitutional processes’, intended to mean ‘by legal and peaceful means’, but those words could pose an insurmountable obstacle if they meant constitutional amendment was needed before the right was granted to a non-self-governing or trust territory. The second qualification was that States shall respect the right of self-determination ‘with proper regard for the rights of other States and peoples’, which was successfully opposed in principle because it would have permitted the exercise of a basic right on the condition that all the rights of other States and peoples – and possibly secondary or acquired rights – were not thereby injured.66 The obligations on States in Article 1(3) apply not only to their own peoples but ‘all peoples’, relevant especially for those that have not been able to exercise or have been denied their right to self-determination. Under these obligations States must take positive action to facilitate realisation of, and respect for, the right of peoples to self-determination, and must also refrain from interfering in the internal affairs of other States in a way that adversely affects the exercise of the right to self-determination.67 Implementation of Article 1 by ‘promoting’ the realisation of the rights of selfdetermination in practice is signalled to a large extent through States supporting referenda,68 and their participation in the machinery of various international organisations and instruments (including the Declaration on the Granting of Independence to Colonial Countries and Peoples,69 the Venice Declaration of the States Members of the European Community,70 the Helsinki Accords,71 the ILO Convention No. 169,72 the Intergovernmental Group to Monitor the Supply and

66 68 69 70 71

atmospheric pollution with the carrying out of atomic weapon tests in the Murunoa Atoll). For the challenges which environmental degradation poses for human rights, see Malgosia Fitzmaurice, ‘Environmental Degradation’, in Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran and David Harris (eds), International Human Rights Law (Oxford University Press, 2010), p. 622. A/2929 (1955), Ch.IV, p. 15 [16] [18]. 67 GC 12 [6]. Canada A/35/40 (1980) 159, 181; Denmark A/36/40 (1981) 94, 107; Spain A/40/40 (1985) 479; Australia A/43/40 (1988) 427; France A/43/40 (1988) 370, 375; Morocco A/46/40 (1991) 238 9. USSR A/40/40 (1985) 261; Australia A/43/40 (1988) 427; New Zealand A/44/40 (1989) 375. Belgium A/43/40 (1988) 487; France A/43/40 (1988) 372. Germany (GDR) A/39/40 (1984) 486. 72 Finland CCPR/C/FIN/CO/6 (2013) 16.

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Shipping of Oil and Petroleum Products to South Africa,73 and other international fora).74 Implementation by ‘respecting’ that right is indicated (at least minimally) by restraint in the use of force,75 among other means.76

T H E R O L E OF A RT I C L E 1 I N IN TE RPR ETIN G O T H E R R IG H T S Article 1 shaped the Committee’s approach in Gillot v. France to the Article 25 claim by certain French citizens resident in New Caledonia who challenged the criteria for a restricted electorate governing the right to vote in referenda associated with New Caledonia’s self-determination. The criteria allowed only those to vote who had sufficiently strong links with the territory because its institutional development was at issue. Although the Committee accepted that it did not have competence under OP1 to consider an alleged violation of the right to self-determination, it decided that ‘it may interpret article 1, when this is relevant, in determining whether rights protected in parts II and III of the Covenant have been violated. The Committee is of the view, therefore, that, in this case, it may take article 1 into account in interpretation of article 25 of the Covenant.’ Article 1 was particularly relevant to the non-discrimination aspects of Article 25 (the right and opportunity ‘without any of the distinctions mentioned in article 2 and without unreasonable restrictions’, etc.). The question was whether criteria applied to produce the restricted electorate for the referenda were compatible with Article 25. The Committee found that they were. They were applied strictly and solely to ballots held in the framework of a selfdetermination process, and could be justified as proportionate only in that context (not general elections). It was not unreasonable to limit participation 73 New Zealand A/44/40 (1989) 374 (economic and commercial measures to prevent support for the apartheid régime). 74 Venezuela A/36/40 1980 48, 66 (the country supported and voted in favour of self determination in various international forums); Mexico A/38/40 (1983) 63, 83 (Mexico’s active participation as a member of the United Nations Council for Namibia was the best possible illustration of its foreign policy). 75 Among relevant Art. 1 issues, see Senegal A/35/40 (1980) 200, 219 (interaction between the Committee and Senegal concerning intervention by the use of arms in the affairs of another State); Germany (FRG) A/41/40 (1986) 267 (would the State be able to support the use of force in eliminating apartheid). 76 Among relevant Art. 1 issues, see Portugal A/36/40 (1981) 317 (the right of peoples to revolt recognised in the Portuguese Constitution, was itself subject to the principle of non interference in the domestic affairs of other States); Afghanistan A/40/40 (1985) 612 (Afghanistan subscribed to the resolution of the non aligned countries prohibiting interference in the internal affairs of countries by foreign powers); Dominican Republic A/40/40 (1985) 386, 406 (the representative reaffirmed the country’s dedication to the principle of non intervention, which constituted one of the key tenets of the Constitution of the Dominican Republic, and had staunchly supported the efforts of the Contadora Group). See also El Salvador A/39/40 (1984) 73 (objection to ‘foreign backed military and paramilitary units’ in the Salvadorian people’s struggle for self determination).

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in local referendums to persons ‘concerned’ by the future of New Caledonia who had proven, sufficiently strong ties to that territory.77 In Mahuika et al. v. New Zealand the authors claimed that legislation in 1992, aimed at finally settling long-contested traditional Maori fishing claims, violated the Maori’s right to self-determination by confiscating their fishing resources, denying them their right to freely determine their political status and interfering with their right to freely pursue their economic, social and cultural development. They claimed that the right to self-determination was effective only when people have access to and control over their resources. The Committee took the view at admissibility stage that only consideration of the merits would enable it to determine the relevance of Article 1 to the authors’ Article 27 claims. However, it is not clear in what way, if at all, the Committee was influenced by Article 1 in its merits decision. There it commented that the right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context, a point that applies equally to Article 27 matters when they are devoid of Article 1 considerations.78 It reiterated some established Article 27 principles concerning the threshold at which the State licensing of economic activity constitutes a denial of the right of members belonging to minorities ‘to enjoy their own culture’, and it emphasised the need for members of the minority to have the opportunity to participate in decision-making processes on measures that affect or interfere with their culturally significant economic activities. It then measured these principles against the facts and concluded there was no Article 27 violation.79 In this instance the Committee appears to have given little weight to Article 1 in what was essentially vanilla Article 27 reasoning. Article 1 was more influential in Gillot because it positively and directly informed the Committee’s assessment of the question of discrimination, necessary for its Article 25 determination, particularly as to the purpose to be achieved in the electoral design.

77 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002 [13.4], [13.6] [13.18]. See also [14.2] [14.7] for the Committee’s assessment of whether the cut off points were excessive for the length of residence requirement (ten and twenty years). Whether the requirements had the purpose or effect of being restrictive in a disproportionate manner was viewed in the light of the nature and purpose of the referenda, where the first ballot concerned the continuation or non continuation of the process of self determination (ten years) compared with the ballot on the option of independence (twenty years as an alternative to other ties). These were not excessive as they were in keeping with the nature and purpose of the ballots concerned, nor disproportionate with respect to a decolonisation process involving the participation of residents who, over and above their ethnic origin or political affiliation, had helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory. 78 Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.3]. See also Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.3]. 79 Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [3], [6.1], [7.6], [9.4] [9.8].

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I M P L E M E N TAT I O N In spite of the reporting duty under Article 40(1) many States ignore Article 1 altogether in their returns, some provide inadequate information, or confuse Article 1 with other provisions, particularly Article 25 (by responding on Article 1 by reference to election laws) or Article 27 (by addressing only minority issues). Instead, it is expected that States should describe, in reference to Article 1(1), the constitutional and political processes which in practice allow the exercise of the right of self-determination; they should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of Article 1(2), and the extent to which that affects the enjoyment of other rights in the Covenant; and in reference to their obligations under Article 1(3) should identify the positive action and other measures taken to facilitate realisation of and respect for the right of peoples to self-determination.80 The failure of States to report adequately against Article 1 may be the result of lack of clear direction from the Committee on the scope and content of the right of self-determination, particularly in the early life of the Covenant. Although the Committee often raises issues of self-determination, sufficient to identify issues and developments affecting particular States,81 its output year-on-year may not have been sufficient to enable States to grasp its expectations. 80 GC 12 [3] [6]. For examples of inadequate reporting against Art. 1, see Barbados A/36/40 (1981) 151; Tanzania A/36/40 (1981) 207; Guinea A/39/40 (1984) 139; Egypt A/39/40 (1984) 293; Canada A/40/40 (1985) 195; Denmark CCPR/CO/70/DNK (2000) 11; Brazil CCPR/C/BRA/CO/ 2 (2005) 5; Canada CCPR/C/79/Add.105 (1999) 8 (even though the situation of the aboriginal peoples remains ‘the most pressing human rights issue facing Canadians’). 81 Australia A/43/40 (1988) 426 (enquiring what Australia’s views and actions had been with regard to the referendum in New Caledonia); Bolivia A/44/40 (1989) 432 (Bolivia was in fact the outcome of the people’s exercise of its right of self determination); Byelorussian SSR A/33/40 (1978) 525, 540 (the right freely to secede from the USSR); Belarus A/47/40 (1992) 525 (legal and practical consequences of the dissolution of the Soviet Union); Denmark A/33/40 (1978) 98; Germany (FRG) A/33/40 (1978) 337 (one Committee member observation that promotion of the right to self determination must not be perverted to further expansionist aims or to justify claims to foreign territories and to jurisdiction over foreign citizens); Germany (GDR) A/39/40 (1984) 485, 486 (whether reunification accorded with the principle of self determination); France A/38/ 40 (1983) 294, 316 (independence achieved for Algeria and Djibouti); Finland A/41/40 (1985) 175, 177; France A/43/40 (1988) 370 3 (the special status of Mayotte; outcome of the refer endum in New Caledonia; the legal status of the Kanaks); Finland A/34/40 (1979) 421 (the extent of autonomy granted to the Åland Islands); Finland A/46/40 (1990) 111, 112 (whether new self government legislation for the Åaland Islands had been enacted); Iraq A/46/40 (1991) 650 (the Autonomous Region of Kurdistan; recognition of the Kurdish peoples); Nicaragua A/38/40 (1983) 238 (status of the Miskitos); New Zealand (Cook Islands) A/40/40 (1985) 432 (develop ments concerning the Cook Islands since exercising their right to self determination); New Zealand A/44/40 (1989) 373 (Tokelauan self determination and Niu); Mauritius A/44/40 (1989) 497 (status of the Chagos Archipelago); Morocco A/37/40 (1982) 136, 153, Morocco CCPR/C/79/Add.44 (1994) 8, Morocco CCPR/C/79/Add.113 (1999) 9 and Morocco CCPR/CO/ 82/MAR (2004) 8 (preparations towards referendum in Western Sahara); Korea A/47/40 (1992) 474, 489 (movement towards reunification); Netherlands A/37/40 (1982) 94, 96, 117 (constitu tional relationship with Netherlands Antilles); New Zealand A/50/40 (1995) 175 (delegation of powers to Tokelauan authorities); Portugal A/45/40 (1990) 124, 126 (Macao, the Azores and

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Although in some countries certain elements of the right of self-determination are enshrined in the Constitution and other domestic provisions,82 the domestic law of many States gives less prominence to the right of self-determination than other Covenant rights, and for many their adoption of the standards of Article 1 is evidenced less by specific provisions oriented around Article 1 than adherence to relevant declarations and conventions.83

C O N C L US I O N The UN Charter was the cradle of the right of self-determination, it shaped the formation of the right in both covenants, and endures in the text of Article 1 of each of those instruments, requiring States to promote the realisation of the right and to respect it, ‘in conformity with the provisions of’ the UN Charter. Articles 1 and 27 of the Covenant achieved for the right of self-determination and the protection of members of minorities what could not be achieved in the Universal Declaration.84

Madeira), 131 3 (East Timor); Senegal A/42/40 (1987) 190, 191 (whether groups living in Casamance could be qualified as ‘peoples’); Spain A/40/40 (1985) 479 (1978 referendum), Spain A/46/40 (1991) 181 (Basque region); Sudan CCPR/C/SDN/CO/3 (2007) 7 (constitutional provision for a referendum on self determination); USSR A/45/40 (1990) 73, 83, 84, 87 (decentralisation of State power, sovereign republics and other territorial units); UK A/34/40 (1979) 239, 301, 302, 330 (‘political’ dependencies included Hong Kong, Gibraltar, Belize, the Falkland Islands and the other, ‘normal’, colonies); Yugoslavia A/47/40 (1992) 433 4, 438 40 (Republics of Slovenia and Croatia unilaterally decided to proclaim independence and secede from Yugoslavia). 82 Byelorussian SSR A/33/40 (1978) 540; USSR A/33/40 (1978) 414, 433 (the right of nations to self determination was reflected to the best in chapters 8, 9, 10 and 11 of the Constitution); Ukrainian SSR A/34/40 (1979) 253 (Art. 69 of the Constitution stated that ‘the Ukrainian SSR shall retain the right freely to secede from the USSR’); Morocco A/37/40 (1982) 153 (the requirements of Art. 1 were fully met by constitutional provisions); Yugoslavia A/39/40 (1984) 205 (the Constitution confirmed the equality of all nations and nationalities; and provided for equality through concrete measures often found in the provisions of self management bodies); USSR A/40/40 (1985) 262 (the Declaration of Rights of the Peoples of Russia affirmed the right to self determination of all peoples of former Tsarist Russia); Dominican Republic A/ 40/40 (1985) 406 (the principle of non intervention constituted one of the key tenets of the Constitution); Spain A/40/40 (1985) 479 (Autonomous Communities were authentic political entities with their own executive and legislative institutions sharing responsibilities with the State in their areas of competence, which were defined by the Constitution); Luxembourg A/41/ 40 (1986) 49 (the right of self determination was specifically enshrined in the Constitution, particularly in the provisions regarding elections and equality before the law); France A/43/40 (1988) 371 (the right of peoples to self determination was enshrined in the preamble to the French Constitution); Sudan CCPR/C/SDN/CO/3 (2007) 7 (Art. 222 of the Interim National Constitution provided for a referendum on self determination). 83 There appears to have been some limited anticipation on the Committee’s part early on that the right to self determination might be ‘expressly guaranteed’ in domestic law: Canada A/35/40 (1980) 159 (some members noted that the right to self determination was not expressly guaranteed in any of the Canadian provinces and was not even mentioned in the laws of British Columbia and Quebec; more information requested on any specific guarantees to ensure respect for that right). 84 See chapter on Article 27: Ethnic, Religious and Linguistic Minorities, section ‘Introduction’.

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The right of self-determination is of cardinal importance, given the dependence on it for the enjoyment of all other rights in the Covenant, yet the precise legal content of that right remains uncertain. The meaning and significance of Article 1 are obscured by the lack of a developed corpus of OP1 decisions, which stems from the Committee’s limited competence under that procedure. Selfdetermination has received consistent though incomplete attention in the Committee’s review of State reports, mainly on questions within a specific compass, such as (in relation to Article 1(2)) the degree of engagement with indigenous people in decision-making on issues affecting their traditional lands and economic activities, and (in relation to Article 1(3)) on the position taken on situations affecting Namibia and Palestine, or in opposition to the apartheid regime of South Africa. The hesitance on the part of many countries to report adequately on Article 1 implementation may be the result of genuine lack of understanding of its content, or the lack of any domestic provisions which specifically address the right. The role of Article 1 in hastening the end of colonial rule and more broadly in giving effect to the right of self-determination should not be understated, particularly given its value in a binding instrument of universal application, engaging the responsibility of Contracting States in a global culture change.

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Article 2: To ‘Respect and to Ensure’ Covenant Rights

INTRODUCTION ARTICLE 2(1): TO ‘RESPECT’ AND TO ‘ENSURE’ ARTICLE 2(2): LAWS AND OTHER MEASURES TO GIVE EFFECT TO COVENANT RIGHTS ARTICLE 2(3): REMEDIES CONCLUSION

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Covenant Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Comparable ‘Respect and Ensure’ Provisions in Other International Instruments European Convention: Articles 1, 13. American Convention on Human Rights: Articles 1(1), 2 and 25. African Charter on Human and Peoples’ Rights: Articles 1 (and 25). 58

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Comparable Non-Discrimination Provisions in Other International Instruments European Convention: Article 14 American Convention on Human Rights: Article 1(1). African Charter on Human and Peoples’ Rights: Article 2.

INTRODUCTION The Significance and Reach of Article 2 Article 2 is pivotal to securing ‘respect’ for and for ensuring to all individuals under a State’s responsibility the rights enshrined in the Covenant. It also firmly establishes that this is to occur without discrimination on the stated grounds. It demands domestic implementation to give ‘full effect’ to those rights, with accompanying remedies for violation. Article 2 extends the rights guaranteed substantively in the Covenant by establishing certain obligations of general application. The words ‘all individuals within its territory and subject to its jurisdiction’ in Article 2(1) affirm that the reach of the Covenant is extraterritorial, and that individuals need not meet qualifying criteria (such as nationality). The terms ‘undertakes’ ‘to respect’ and ‘to ensure’ invoke commitments both of restraint on States and of positive protection against non-State sources of violation. They give the Covenant immediate effect. A fundamental and far-reaching feature of Article 2(1) is the commitment to respect and to ensure those rights ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Practical implementation is addressed in Article 2(2), by which each State must take the necessary steps to adopt laws or other measures necessary to give effect to those rights, to the extent it has not already done so, and under Article 2(3) to ensure an effective remedy for violation in combination with the right to have that remedy enforced. The individual provisions of the Covenant, including Article 2, are binding on States as a matter of treaty obligation, on their own terms. Under Article 26 of the Vienna Convention on the Law of Treaties States are bound to give effect to them in good faith. The Covenant may also give rise to complaints from other States Parties to the Covenant where the Committee has been given competence by a State to receive communications under Article 41 alleging failure to fulfil its Covenant obligations. The Accessory Character of Article 2 Article 2 is located in Part II of the Covenant, along with Article 3 which similarly addresses discrimination (in terms of gender equality), and two other provisions of

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general application (Article 4, concerned with derogation in time of public emergency, and Article 5, which is an interpretive provision).1 Article 2 (like Article 3) is said to possess ‘accessory character’, meaning that it can be violated only in conjunction with another substantive provision of the Covenant, that is, Articles 6–27, found in Part III of the Covenant.2 Article 2 is described as laying down a general obligation for States Parties. The accessory properties of Article 2 are expressed in the requirement in Article 2(1) that States Parties respect and ensure ‘the rights recognized in the Covenant’ without distinction on the grounds mentioned; and in the obligation in Article 2(3) to provide an effective remedy for ‘any person whose rights or freedoms as recognized herein’ are violated. In the early case of K.L. v. Denmark, when the author claimed that he was deprived of a remedy in breach of Article 2(3) because domestic courts dismissed his tax claims for filing them out of time, the communication was inadmissible because ‘there can be no breach of article 2(3) unless a remedy is sought for the violation of one of the rights or freedoms recognized elsewhere in the Covenant’.3 Article 2 cannot in isolation give rise to an OP1 claim.4 The Committee is also reluctant to make findings under Article 2(2), which obliges each State Party to adopt laws and other measures to give effect to Covenant rights. In Gerald Neuman’s view this is the correct approach, since the Committee is able to, and does, examine the effect of laws on victims before it and to recommend changes to the legal framework. The unnecessary addition of more abstract violations (under Article 2(2)) would impair the legibility of the Committee’s Views, which are complicated enough already.5 However, when Article 2(2) allegations are made in conjunction with other Covenant provisions they will be admissible if the failure by the State to observe its Article 2 obligations is the proximate cause of a distinct violation of the Covenant directly affecting the victim.6 1 Article 5 does not give rise to any separate individual right: Levinov v. Belarus, CCPR/C/123/D/ 2235 & 6/2013, 19 July 2018 [5.5]. 2 Discussed by Nowak, CCPR Commentary, pp. 35 7; and in the context of the ICESR, Magdalena Sepúlveda, The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights (Intersentia, 2003), pp. 257 9. 3 K.L. v. Denmark, Communication No. 81/1980, CCPR/C/OP/1, 27 March 1981, at 28 (1984). 4 Rogerson v. Australia, CCPR/C/74/D/802/1998, 3 April 2002 [7.9]; Basso v. Uruguay, CCPR/C/ 100/D/1887/2009, 19 October 2010 [9.4]; A.P. v. Ukraine, CCPR/C/105/D/1834/2008, 23 July 2012 [8.5]; Castañeda v. Mexico, CCPR/C/108/D/2202/2012, 18 July 2013 [6.8]; Polyakov v. Belarus, CCPR/C/111/D/2030/2011, 17 July 2014 [7.4]; Malika El Boathi v. Algeria, CCPR/C/119/D/2259/2013, 17 March 2017 [6.4]. Also on the redundancy of Art. 2(1) in such cases, see the Individual Opinion of Committee member Gerald L. Neuman (con curring) [2] in Leven v. Kazakhstan, CCPR/C/112/D/2131/2012, 21 October 2014. For further elaboration see below, section ‘Article 2 as a Tool for Changing Deficient Domestic Laws’. 5 Individual Opinion of Gerald L. Neuman (concurring) in Mihoubi v. Algeria, CCPR/C/109/D/ 1874/2009, 18 October 2013. 6 Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [8.4] (Art. 2(2) claim that unclear domestic legislation was so restrictive that it limited the very essence of their freedoms under Arts 19 and 21 failed, because the Arts 19 and 21 allegations were based on the

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The operation of Article 2(1) and (2) is most evident in findings of violation of a substantive Covenant right ‘in conjunction with Article 2’. An example is Patera v. Czech Republic when domestic court orders in a family law matter were not effective. The court had ordered parental access for the author to his son but fines against the author’s wife for thwarting it were neither fully enforced nor replaced with other measures aimed at ensuring the author’s rights. Taking into account considerable delays at various stages of the proceedings (among other circumstances), the Committee found that the author’s rights under Article 17, in conjunction with Article 2(1) and (2), did not receive effective protection.7 Carranza Alegre v. Peru concerned the brutal treatment of a medical practitioner for having treated terrorists. She was detained arbitrarily, kept in solitary confinement, subjected to physical and mental torture by anti-terrorist authorities, and was tried in secret by faceless courts. The Committee answered her Article 2(1) claim based on a failure by the State ‘to respect’ a number of substantive rights by findings of violation of Articles 7, 9, 10 and 14, together with Article 2(1).8 Article 2 may not be invoked when the substantive right is excluded by reservation. In Duilio Fanali v. Italy the Committee commented that the ‘general right to a remedy [in Article 2(3)] is an accessory one, and cannot be invoked when the purported right to which it is linked is excluded by a reservation, as in the present case’.9 It is less than perfectly clear that ‘the rights recognized in the present Covenant’ mentioned in Article 2 include the right of self-determination in Article 1. The positioning of Article 1 on its own in a separate Part (Part I) suggests it is excluded, as do the obligations in Article 2(1) and (3) to respect and to ensure the rights recognised in the Covenant ‘to all individuals’ (not peoples), and to ensure a remedy to ‘any person whose rights or freedoms as recognized herein’ are violated.10

7 8 9 10

interpretation and application of the same laws); Griffiths v. Australia, CCPR/C/112/D/1973/ 2010, 21 October 2014 [6.4] (claims under Arts 2(2) and 2(3)(a) did not succeed based on the State’s failure to adopt legislative or other measures to give effect to the protection from arbitrary detention in extradition cases because an examination of them would not be distinct). Patera v. Czech Republic, CCPR/C/75/D/946/2000, 25 July 2002 [7.3] [7.4]. Alegre v. Peru, CCPR/C/85/D/1126/2002, 28 October 2005 [8]. Fanali v. Italy, Communication No. 75/1980, CCPR/C/OP/2 at 99 (1990), 31 March 1983 [13]. For interpretation concerning the inclusion or otherwise of the right of self determination in Art. 1 as a substantive right for this purpose, see Nowak, CCPR Commentary, pp. 34 5. Note also the approach under OP1. As observed in the chapter on Article 1: Self determination, section ‘Implementation’, the Committee nevertheless requires domestic implementation of Article 1 in accordance with Art. 2(1), and reporting against that obligation. Those substantive provisions which offer lex specialis protection in addition to the general coverage of Art. 2 (such as Art. 14(5) or Art. 26) would be excluded from the range of substantive rights in conjunction with which Art. 2 is intended to operate: Fanali v. Italy, Communication No. 75/1980, CCPR/C/OP/2 at 99 (1990), 31 March 1983 [13].

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Victim Status under Article 1 of OP1 Where an OP1 claim impugns domestic law or practice, it must have sufficient impact on the author to establish the necessary victim status for violation in relation to a substantive provision. The author in A.W.P. v. Denmark was a Muslim who claimed a violation of Articles 2(3)(b), 20(2) and 27 in the State’s failure to fulfil its positive obligation to take effective action against the expression of anti-Muslim sentiments by members of the Danish Parliament and the European Parliament. With regard to Articles 20 and 27, the Committee reiterated that no one may in theoretical terms and by actio popularis object to a law or practice which they maintain to be at variance with the Covenant, without demonstrating either that the State had already impaired the exercise of their right, or that such impairment is imminent. The author failed to establish that the statements had such specific consequences for him.11 In Toonen v. Australia, by contrast, the author was a victim because of the threat of enforcement of legislation criminalising certain same-sex conduct, and the pervasive impact of it on him personally.12 Chapter Outline This Chapter follows the structure and content of Article 2(1)–(3). It introduces the ‘without distinction’ limb of Article 2(1),13 but the discussion on its role in combating status-based discrimination is continued in the chapter on Article 26, rather than this chapter, because of the common ground across the two provisions.14

A RT I C L E 2 ( 1 ) : TO ‘ R E SPEC T ’ A N D TO ‘ E N S U R E ’ Immediate Effect Obligations under Article 2(1) are of immediate effect.15 In the preparatory debates there was discussion about the need ‘for a certain degree of elasticity’ in these obligations.16 An oral Australian proposal which required States to adopt 11 A.W.P. v. Denmark, CCPR/C/109/D/1879/2009, 1 November 2013 [6.4]. See also Beydon et al. v. France, CCPR/C/85/D/1400/2005, 31 October 2005 [4.3]; Brun v. France CCPR/C/88/D/ 1453/2006, 8 October 2006 [6.3]; Andersen v. Denmark, CCPR/C/99/D/1868/2009, 26 July 2010 [6.4]. 12 Toonen v. Australia, CCPR/C/50/D/488/1992, 31 March 1994 [5.1]. 13 See section ‘Without Distinction of any Kind, such as Race, Colour, Sex, Language, Religion, Political or Other Opinion, National or Social Origin, Property, Birth or Other Status’ below. 14 See chapter on Article 26: Equality before the Law Equal Protection of the Law. See also chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights. 15 Harris, ‘An Introduction’, at p. 4. 16 A/2929 (1955), Ch.VI, p. 17 [8]; E/CN.4.SR.125, p. 3 (Denmark); E/CN.4.SR.193 [79] (USA); E/CN.4.SR.329 p. 6 (Belgium). For commentary close to the time of drafting, Egon Schwelb,

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legislative and other measures ‘within a reasonable time’17 succeeded but was short-lived.18 There then followed various suggestions for setting definite time limits for implementation, which were not adopted since they revealed the weaknesses of this approach (principally in the difficulties of foreseeing the amount of time needed).19 The decision was made to include an undertaking on States (which ultimately became Article 40) to submit reports on legislative and other measures, as a means of curbing excessive delays and similar abuse in implementation.20 It was thought that the idea of progressive implementation (which was then proposed for the ICESCR) was most inappropriate for civil and political rights, which were capable of immediate implementation, reflecting concern that Covenant ratification might otherwise result in no more than a vague promise to be fulfilled by some unspecified date.21 In the Third Committee a proposal to revive the ‘reasonable time’ formula did not succeed;22 instead the notion of implementation at the earliest possible moment was implicit in Article 2 as a whole.23 Manfred Nowak concludes that all provisions of the Covenant are directly applicable and, with the entry into force of the Covenant for any State Party, place that State under an immediate international obligation to respect and ensure these rights, the only exception in his view being Article 23(4) which obligates States merely to ‘implement the equality of [rights and responsibilities of spouses as to marriage] progressively’.24 The Committee has long assumed the immediacy of State obligations under Article 2(1) both in the reporting procedure and when considering individual communications.25 General Comment 31 asserts in straightforward terms that the obligation under Article 2(1) ‘has immediate effect for all States parties’.26 The purpose of reporting under Article 40 on the progress made in the enjoyment of rights is not inconsistent with this conclusion since it merely acknowledges that States will also achieve progress in domestic implementation after ratification.27 The

17 18 19 21 22 23 24 25 26 27

‘The Nature of the Obligations of the States Parties to the International Covenant on Civil and Political Rights’, in René Cassin, Amicorum Discipulorumque Liber (Pedone, 1969), vol. 1, pp. 301 24; and the drafting history itself, Marc Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff, 1987), pp. 59 62. E/CN.4/SR.125, p. 17 (Australia). For deletion of these qualifying words E/CN.4/SR.329, p. 15 (China), p. 16 (France) and (India). See A/2929 (1955), Ch.VI, p. 17 [9]. 20 See A/2929 (1955), Ch.VI, pp. 17 18 [9] [11]. E/CN.4/SR.138 [17] (GB); A/2929 (1955), Ch.VI, pp. 17 18 [10]. A/5655 (1963), p. 7 [23]. For the view that dispensing with strict time limits implies a degree of progressive implementation, see A. H. Robertson and J. G. Merrills, Human Rights in the World (Manchester University Press, 1996), p. 35. A/5655 (1963), p. 7 [23]; A/C.3/SR. 1257 [12] (India). Nowak, CCPR Commentary, pp. 61 1, 515 (Art. 23(4) requires States to ‘take appropriate steps to ensure equality’ etc.). Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Clarendon Press, 1991), pp. 275 6. General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 (GC 31) [5]. Nowak, CCPR Commentary, p. 62.

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reporting procedure provides the opportunity to identify particular obstacles to implementation even if the legal and practical apparatus for compliance with Article 2 are fully in place. The Twin Obligations The obligation to ‘respect’ in Article 2(1) imposes restraint on the State itself as a source of restriction on the enjoyment of rights. Restrictions may not extend beyond the permissible limits circumscribed for each right.28 The obligation to ‘ensure’ entails State responsibility to secure adequate protection against restriction from non-State sources, measured by the same permissive limits.29 It attaches, for example, to State failure to exercise due diligence to prevent, punish, investigate or redress harm caused by non-State actors.30 ‘All Individuals Within Its Territory and Subject to Its Jurisdiction’ (Rationae Personae and Loci Scope) The obligations on each State in Article 2(1) extend to ‘anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party’.31 The term ‘individual’ was preferred to ‘person’ because 28 GC 31 [6]. For the Committee’s concern at State observance of limitation provisions, see section ‘Terms of Limitation’, below. 29 Private sources are referred to, e.g., in General Comments (CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9 [6]; CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10 [20], [31]; GC 31 [8]) and OP1 decisions (e.g., Nahlik v. Austria, CCPR/C/57/D/608/1995, 22 July 1996 [8.2] (rejecting the State’s argument that the communication was inadmissible since it related to alleged discrimination within a private agreement); Gauthier v. Canada, CCPR/C/65/D/633/1995, 5 May 1999 [13.5] [13.6]; Love et al. v. Australia, CCPR/C/77/D/983/2001, 25 March 2003; Arenz et al. v. Germany, CCPR/C/80/D/1138/2002, 24 March 2004 [8.5] (dismissing the State’s argument that it cannot be held responsible for the authors’ exclusion from a political party on the basis of their affiliation to Scientology because it was the decision of a private association)); and in Articles 5 and 7 of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, Report of the International Law Commission on the Work of Its Fifty Third Session, A/56/10 II (2001), Yearbook of the International Law Commission, pp. 42 5. 30 GC 31 [8]. Andrew Clapham offers detailed coverage of the human rights obligations of non State actors and how they may be held legally accountable in Human Rights Obligations of Non State Actors (Oxford University Press, 2006); but more recent discussion is available in Math Noortmann, August Reinisch and Cedric Ryngaert (eds), Non State Actors in International Law (Bloomsbury, 2015). On the nature of the obligations under Art. 2(1) and their interrelation with Arts 4 and 5, see Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 72. 31 GC 31 [10]. Note the Committee’s regret that the United States continued to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory: USA CCPR/C/USA/CO/4 (2014) 4; and responsibility attributed to Australia over unauthorised maritime arrivals when taken to regional processing centres in Papua New Guinea and Nauru, based on the significant levels of control and influence it exercised over the operation

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‘person’ presupposes recognition before the law and may allow avoidance of obligations through denial of legal personality.32 Article 2(1) does not depend on reciprocity, or (subject to the individual terms of Covenant provisions such as Article 25, which applies only to citizens) nationality,33 and it applies equally to prisoners,34 those in the military,35 the stateless and aliens (such as asylum seekers, refugees and migrant workers),36 as well as clandestine seasonal workers, gypsies and other people living on the margins.37 General Comment 31 refers to the obligation of a State not to extradite, deport, expel or otherwise remove a person from its territory, as a concomitant of the duty to respect and ensure Covenant obligations, where there is a real risk of irreparable harm.38 The Article 2(1) obligations reach extraterritorially to the acts of agents of a State committing violations overseas,39 to those of companies and other enterprises under its jurisdiction operating abroad,40 to military or peacekeeping

32 33 34

35

36 37 38

39

40

of the offshore regional processing centres, including over their establishment, funding and service provision: Australia CCPR/C/AUS/CO/6 (2017) 35, 36. For the concept of ‘power or effective control’, see Alex Conte, ‘Human Rights beyond Borders: a New Era in Human Rights Accountability for Transnational Counter Terrorism Operations’, (2013) 18(2) JC&SL, p. 233. For discussion in the Third Committee, see A/5655 (1963), p. 5 [17]; Bossuyt, Guide to the ‘Travaux Préparatoires’, p. 53. Sri Lanka CCPR CCPR/CO/79/LKA (2003) 7 (Committee concern that some Covenant rights were denied to non citizens without any justification). Yevdokimov and Rezanov v. Russian Federation, CCPR/C/101/D/1410/2005, 21 March 2011 [7.4]. Note also the applicability of the Covenant in the Basic Principles for the Treatment of Prisoners: Resolution adopted by the General Assembly, 28 March 1991, A/RES/45/111, Principle 5. Vuolanne v. Finland, CCPR/C/35/D/265/1987, 7 April 1989 [9.3]: ‘The all encompassing character of the terms of [Art. 2(1)] leaves no room for distinguishing between different categories of persons, such as civilians and members of the military, to the extent of holding the Covenant to be applicable in one case but not in the other.’ General Comment No. 15: The Position of Aliens Under the Covenant, Adopted at the Twenty seventh Session of the Human Rights Committee, on 11 April 1986, [1] [2]. Committee questioning of France at A/38/40 (1983) 295. GC 31 [12]; chapters on Article 6: The Right to Life, The State’s Protective and Other Duties, section ‘Obligations on Expulsion or Extradition’; Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, The State’s Obligation of ‘Effective Protection’, section ‘Obligations on Expulsion or Extradition’. In Burgos v. Uruguay, Communication No. R.12/52, A/36/40 at 176 (1981), 29 July 1981, the Committee observed at [12.1] that although the arrest and initial detention and mistreatment of the victim allegedly took place on foreign territory, the Committee was not barred by virtue of Art. 2(1) from considering the allegations, together with the claim of subsequent abduction into Uruguayan territory, inasmuch as these acts were perpetrated by Uruguayan agents acting on foreign soil. Hugh King canvasses the extent to which States Parties owe their human rights obligations abroad in ‘Extraterritorial Human Rights Obligations of States’, (2009) 9 HRLR, p. 521. E.g., Yassin et al. v. Canada, CCPR/C/120/D/2285/2013, 26 July 2017 [6.5]: ‘While the human rights obligations of a State on its own territory cannot be equated in all respects with its obligations outside its territory, the Committee considers that there are situations where a State party has an obligation to ensure that rights under the Covenant are not impaired by extraterri torial activities conducted by enterprises under its jurisdiction’, relying on: Munaf v. Romania,

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exercises overseas,41 and to States when occupying disputed or foreign territory.42 They operate extraterritorially per force to prevent arbitrary deprivation of the right to enter one’s own country under Article 12(4). Article 2(1) binds a State when acting on behalf of another State.43 It may even be engaged when a State gives its permission to use territory for purposes incompatible with the Covenant. For example, it became a matter of Committee concern that the United Kingdom allowed the use of its British Indian Ocean Territory as a transit point for rendition flights carrying individuals to countries where they risked being subject to torture or ill-treatment.44 ‘Without Distinction of any Kind, such as Race, Colour, Sex, Language, Religion, Political or Other Opinion, National or Social Origin, Property, Birth or Other Status’ This section serves as an introduction to the non-discrimination text ‘without distinction of any kind’ in Article 2(1) and the related equality and nondiscrimination provisions of Articles 3 and 26, to outline and draw certain distinctions between them. Article 3 is discussed more fully in the chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, below. Because the non-discrimination text of Article 2(1) has much in

41 42

43 44

CCPR/C/96/DR/1539/2006, 30 July 2009 [14.2] (the question was whether, by allowing the author to leave the premises of the Romanian Embassy in Baghdad, it exercised jurisdiction over him); Hicks v. Australia, CCPR/C/115/D/2005/2010, 5 November 2015 [4.4] [4.6] (Australia had some influence over the way the United States treated the author and was in a position to take positive measures to ensure his proper treatment, but its influence did not amount to the exercise of power or effective control over the author). Among relevant Concluding Observations note Canada CCPR/C/CAN/CO/6 (2015) 6 (recommendation to enhance the effectiveness of existing mechanisms to ensure that all Canadian corporations under the State’s jurisdiction, in particular mining corporations, respect human rights standards when operating abroad); Korea CCPR/C/ KOR/CO/4 (2015) 10, 11 (expectation that all business enterprises domiciled in its territory and/ or subject to its jurisdiction respect Covenant human rights standards throughout their opera tions). On the liability of companies generally, see Marius Emerland, ‘The Corporate Veil in the Jurisprudence of the Human Rights Committee and the Inter American Court and Commission of Human Rights’, (2004) 4(2) HRLR, p. 257. GC 31 [10]. For Committee requests for confirmation of the extraterritorial reach to military operations abroad, see, e.g., Syria A/34/40 (1979) 290; Lebanon A/38/40 (1983) 341. For peacekeeping and military operations, see Belgium CCPR/CO/81/BEL (2004) 6. See Israel CCPR/CO/78/ISR (2003) 11, Israel CCPR/C/ISR/CO/4 (2014) 17 and the International Court of Justice Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (I.C.J. Reports 2004, p. 136), confirming that the Covenant is applicable (and States are accountable under Art. 2(1)) for acts done by a State in exercise of its jurisdiction outside its own territory. For violations of Arts 7, 9 and 13 by Equador during operations on behalf of the US Drug Enforcement Agency in Ecuador, see García v. Ecuador, CCPR/C/40/D/319/1988, 18 October 1990. UK CCPR/C/GBR/CO/6 (2008) 13 (prompting the Committee to recommend that the UK should investigate and establish an inspection system to ensure that its airports not be used for such purposes). On the responsibility for British forces overseas, see UK CCPR/C/GBR/CO/6 (2008) 14 and UK CCPR/C/GBR/CO/7 (2015) 9.

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common with Article 26, it is dealt with more fully in the chapter on Article 26: Equality before the Law Equal Protection of the Law, below.

The Rights to Equality and Non-discrimination The rights to equality and non-discrimination in the Covenant were hard fought. It was not possible during the 1919 Paris Conference to express even the principle of racial equality in the Covenant of the League of Nations.45 The UN Charter achieved a significant advance in 1945 by basing the UN on the principle of the sovereign equality of all its Members, and by confidently reaffirming ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’.46 It established among the purposes of the UN ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.47 It was not until the Covenant that obligations of non-discrimination and equality became the subject of binding obligations across States on a universal scale. They are found in Article 2(1) (the obligation to ‘respect and to ensure’ Covenant rights without distinction of any kind); Article 3 (the undertaking to ensure the equal right of men and women to the enjoyment of Covenant rights); Article 4(1) (derogation is not to involve discrimination solely on the stated grounds); Article 20(2) (the obligation to prohibit advocacy of national, racial or religious hatred constituting incitement to discrimination); Article 23(4) (equality of rights and responsibilities of spouses); Article 24(1) (protection for children without discrimination on stated grounds); Article 25 (the distinctions in Article 2 may not apply to the right to take part in the conduct of public affairs, to vote and have access to public service); and Article 26 (the right to equality before the law and equal protection of the law without any discrimination). As the italics show, some refer to ‘the equal right’, ‘equality’ or ‘equal’ (respectively, Articles 3, 23(4) and 26); some refer to ‘distinctions’ (Articles 2(1) and 25), while others adopt ‘discrimination’ (Articles 4(1), 24(1) and 26).48 Ramcharan considers that much of such terminology is interchangeable, and its use more ‘loose’ than deliberate and precise, largely attributable to the extensive period over which these provisions were drafted (1947–66), the changing membership and transformation of the UN and of the various organs. For example, in the Third Committee the word ‘distinction’ in the ICESCR was deliberately 45 Paul Gordon Lauren, Power and Prejudice: the Politics and Diplomacy of Racial Discrimination, 2nd edn (Westview Press, 1996), pp. 99 100. 46 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Preamble, para 2. 47 Charter of the United Nations, Art. 1(3). See also Arts 13(1)(b), 55(c) and 76(c). 48 For selected works by leading authors on the subject of equality and non discrimination under international law, see Stephanie Farrior (ed.), Equality and Non Discrimination under International Law, vol. 2 (Routledge, 2017).

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changed to ‘discrimination’, while ‘distinction’ in the counterpart Article 2(1) of the Covenant remained unchanged; nevertheless, the clear intention behind the terms in both covenants was to exclude only arbitrary or unjust distinction or discrimination.49 The intended pejorative sense of the term ‘discrimination’ in Article 26 was particularly well expressed in the Third Committee by the Italian delegate Francesco Capotorti when explaining that ‘there were cases in which the law was justified in making distinctions between individuals or groups, but the purpose of the article was to prohibit discrimination, in the sense of unfavourable and odious distinctions which lacked any objective or reasonable basis’.50 The differences between ‘positive’ and ‘negative’ formulations of equality are touched on briefly in the chapter on Article 3.51 On the differences in terminology between Covenant Articles 2 and 26, Nowak commented in the light of the drafting history that it may not be concluded that Article 2(1) prohibits every ‘distinction’ on the basis of its stated grounds, whereas Article 26 precludes only ‘discriminatory distinctions’: in both cases distinctions are prohibited as discriminatory only when they are not supported by reasonable and objective criteria.52 The principles developed by the Committee in its OP1 jurisprudence which are common to Articles 2(1), 3 and 26 are discussed further in the chapter on Article 26.53 The Committee often refers to ‘discrimination’ without observing the precise terminology of those provisions (‘without distinction of any kind’ in Article 2(1), ‘equality’ in Article 3, ‘equal protection without any discrimination’ in Article 26).54 Articles 2(1), 3 and 26 all apply principles of direct and indirect discrimination, to exclude from prohibition differentiation based on reasonable and objective criteria, and to capture lack of differentiation which disproportionately disadvantages those in a particular group without reasonable and objective justification.

How the Key Equality and Non-Discrimination Provisions (Articles 2(1), 3 and 26) Differ from Each Other Article 2(1) guarantees enjoyment of Covenant rights without discrimination on the enumerated grounds. Article 3 also guarantees the equal right of men and 49 Ramcharan, ‘Equality and Nondiscrimination’, p. 251 at p. 259. 50 Nowak, CCPR Commentary, p. 629, n. 155. 51 Chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Development of Article 3’. 52 Nowak, CCPR Commentary, pp. 45 6. For discussion on the meaning of ‘discrimination’ under international law to denote only unreasonable, arbitrary or invidious distinctions, see Warwick McKean, Equality and Discrimination Under International Law (Clarendon Press, 1983), p. 288. 53 Article 26: Equality Before the Law Equal Protection of the Law, section ‘Without Discrimination (Reasonable and Objective Criteria)’. 54 E.g., CCPR General Comment No. 18: Non discrimination, 10 November 1989, adopted at the Thirty seventh Session of the Human Rights Committee (GC 18) [2], [7], [10], [11].

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women to the enjoyment of Covenant rights. As already noted, because Article 2(1) and 3 are not self-standing, they are known as ‘accessory’ prohibitions or ‘subordinate norms’.55 Article 26 differs from them in that it is autonomous. It provides a general right to equality before the law and, without discrimination, to the equal protection of the law, reinforced by a requirement that the law shall prohibit discrimination and guarantee equal and effective protection against discrimination on the listed grounds. General Comment 18 explains what Article 26 adds to Article 2: While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitation . . . article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligation imposed on States parties in regards their legislation and the application thereof. Thus, when legislation is adopted by a state party, it must comply with the requirements of article 26 that its contents should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.56

Articles 2 and 26 are identical in their exemplification of grounds on which discrimination is to be prohibited (‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’). For areas of similarity between the non-discrimination text of Articles 2(1) and 26 (the enumerated grounds of discrimination, and principles for determining discrimination), refer to the chapter on Article 26. For issues concerning discrimination based on sex, and the overlap between Articles 2(1) and 3, refer to the chapter on Article 3.

A RT I C L E 2 ( 2 ) : L AW S A N D O T H E R M E A S U R E S TO G I V E E F F E C T TO C O V E N A NT RI G H T S Necessary Steps Unlike Article 2(1) of the International Covenant on Economic Social and Cultural Rights, which obligates states to take ‘legislative or other measures’, Article 2(2) of the Covenant requires States to ‘take the necessary steps . . . to 55 Daniel Moeckli, ‘Equality and Non Discrimination’, in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (Oxford University Press, 2010), p. 194. At pp. 193 4, Moeckli also canvasses the differences in equality and non discrimination provisions across regional instruments. 56 GC 18 [12]. For the origins of this approach, S.W.M. Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196 (1990), 9 April 1987 [12.3].

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adopt such laws and other measures as may be necessary’.57 A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.58 A number of Covenant provisions are directive in what is required in order to achieve certain aspects of compliance. Some mandate ‘protection’ by law (Articles 6, 17(2)); some stipulate that particular procedures must be ‘established’ by law or conducted ‘in accordance with’ law (Articles 9(1), 13, 14(5)); some require that the authority by which rights may be restricted be derived ‘by law’ (Articles 12(3), 18(3), 19(3) and 22(2)) or ‘in conformity with the law’ (Article 21)); some are couched in terms of required prohibitions, such as ‘no one shall be’ or ‘shall be prohibited’ (Articles 7, 8, 9(1), 11, 12(4), 18(2), 20); some provide detailed stipulations as to content (Articles 9(2)–(5), 10, 12(1) and (2), 14, 15, 16, 23(2)), or both content and terms of limitation (Articles 12(3), 18(1), (3) and (4), 19(1) and (2), 21, 22(1)); some require specific protection (Articles 17(2), 23(1), 24(1) and 27); and some are required to meet particular standards of equality (Articles 3, 23(4) and 26) or non-discrimination (Article 2(1), 24(1) and 26). On ratification States are required to make any changes to domestic laws and practices that are necessary to conform them with the Covenant. Where there are inconsistencies, domestic law or practice must be changed to meet the standards imposed by the Covenant’s substantive guarantees.59 Achieving Covenant Compliance in Domestic Law

Incorporation and Alternative Models Article 2(2) allows for different domestic constitutional structures and does not require the Covenant to be directly applicable in the courts, for example, by incorporation of the Covenant into national law.60 However, the Committee 57 On the obligation to adopt legislative or other measures, see Oscar Schachter, ‘The Obligation to Implement the Covenant in Domestic Law’, in L. Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 311, at p. 319. On whether the Covenant creates only duties of result or also duties of conduct, such as the enactment of specific safeguards against violations, see Anja Seibert Fohr, ‘Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its Article 2 Para. 2’, (2001) 5 Max Planck YBUNL, p. 399. 58 GC 31 [14]. On lack of resources as inadequate justification for failure to implement, see McGoldrick, Human Rights Committee, pp. 273 4. 59 GC 31 [13]. On domestic implementation, see Christian Tomuschat, ‘National Implementation of International Standards on Human Rights’, (1984/5) CYHR, p. 31; Harris, ‘An Introduction’, pp. 1 8. 60 Evrezov et al. v. Belarus, CCPR/C/112/D/1999/2010, 10 October 2014 [7.4]; Vasily Poliakov v. Belarus, CCPR/C/111/D/2103/2011, 17 July 2014 [9.5]. For a survey of judicial interpretation of human rights law of the superior courts of 103 countries in America, Europe, Africa, Asia, the Caribbean and the Pacific, as well as jurisprudence of human rights monitoring bodies, see Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2017).

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does consider that constituent guarantees may receive enhanced protection if the Covenant is automatically or through specific incorporation part of the domestic legal order, and it invites States that have not already done so to consider incorporating the Covenant to render it part of domestic law to facilitate full realisation of Covenant rights as required by Article 2.61 It has recommended that the Covenant be given direct effect as an option,62 or that its provisions be made ‘directly applicable’ before the courts,63 and it has pointed out as anomalous the position in those countries where the European Convention is directly applicable but the Covenant is not.64 The Committee’s specific on-going concern has been that the provisions of the Covenant have full effect in the domestic legal order, as required by the text of Article 2(1).65 It expects the Covenant not to be overridden by domestic provisions,66 and is concerned where the Covenant has only persuasive rather than binding authority at domestic level.67 A regular theme in its questioning in the review process has been how conflicts are resolved. The Committee considers that the status of the Covenant in any system of law should at least be clear, to allow rights and freedoms to be invoked directly in the courts,68 consistently,69 and for conflicts between national laws and Covenant obligations to be resolved.70 As a result, it has been concerned about legislative provisions which permit non-conforming laws to remain valid and operative where they 61 GC 31 [13]. 62 Hungary A/48/40 (1993) 665 (ensure that the provisions of the Covenant be fully incorporated into domestic law or be given direct effect). 63 Gabon CCPR/C/79/Add.71 (1996) 18. 64 Iceland CCPR/C/79/Add.26 (1993) 8, 12; Iceland CCPR/CO/83/ISL (2005) 9. See also Austria CCPR/C/AUT/CO/5 (2015) 5. 65 Egypt CCPR/CO/76/EGY (2002) 4; Philippines CCPR/CO/79/PHL (2003) 6; Sri Lanka CCPR CCPR/CO/79/LKA (2003) 7; Central African Republic CCPR/C/CAF/CO/2 (2006) 6; Algeria CCPR/C/DZA/CO/3 (2007) 6; Denmark CCPR/C/DNK/CO/5 (2008) 6; Burundi CCPR/C/BDI/ CO/2 (2014) 5; Chad CCPR/C/TCD/CO/2 (2014) 5; Djibouti CCPR/C/DJI/CO/1 (2013) 5; Indonesia CCPR/C/IDN/CO/1 (2013) 5; Ireland CCPR/C/IRL/CO/4 (2014) 5; Malawi CCPR/ C/MWI/CO/1 (2014) 5; Sudan CCPR/C/SDN/CO/4 (2014) 7; Austria CCPR/C/AUT/CO/5 (2015) 6; Denmark CCPR/C/DNK/CO/6 (2016) 6; Sweden CCPR/C/SWE/CO/7 (2016) 5; Mauritius CCPR/C/MUS/CO/5 (2017) 5; Pakistan CCPR/C/PAK/CO/1 (2017) 6. 66 Ireland CCPR/C/79/Add.21 (1993) 9; Norway CCPR/C/79/Add.27 (1993) 8; Latvia CCPR/C/ 79/Add.53 (1995) 9; New Zealand A/50/40 (1995) 176; Rwanda CCPR/C/RWA/CO/4 (2016) 5; Algeria CCPR/C/DZA/CO/4 (2018) 5. 67 Grenada CCPR/C/GRD/CO/1 (2009) 6. 68 Mongolia A/47/40 (1992) 586; Mongolia CCPR/C/79/Add.7 (1992) 5; Slovenia CCPR/C/79/ Add.40 (1994) 8; Morocco CCPR/C/79/Add.44 (1994) 7; Lithuania CCPR/C/79/Add.87 (1997) 9; Monaco CCPR/CO/72/MCO (2001) 5; Argentina CCPR/CO/70/ARG (2000) 8; Burkina Faso CCPR/C/BFA/CO/1 (2016) 5; Jamaica CCPR/C/JAM/CO/4 (2016) 9; Morocco CCPR/C/MAR/ CO/6 (2016) 5; Madagascar CCPR/C/MDG/CO/4 (2017) 5; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 5; Gambia CCPR/C/GMB/CO/2 (2018) 7. 69 El Salvador CCPR/C/SLV/CO/7 (2018) 5. 70 Mongolia CCPR/C/79/Add.120 (2000) 7; Monaco CCPR/CO/72/MCO (2001) 5; San Marino CCPR/C/SMR/CO/2 (2008) 5; Mexico CCPR/C/MEX/CO/5 (2010) 6; Kuwait CCPR/C/KWT/ CO/3 (2016) 6; Jordan CCPR/C/JOR/CO/5 (2017) 4; Bahrain CCPR/C/BHR/CO/1 (2018) 5; Lebanon CCPR/C/LBN/CO/3 (2018) 5.

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relate to fundamental rights,71 or where there is no mechanism for resolving such incompatibility.72 It is also concerned about the lack of comprehensive incorporating legislation where required by dualist systems.73

Compliance with Other Conventions The Committee has often drawn attention to the Covenant’s greater scope than the European Convention,74 including in Covenant Articles 3, 4, 12, 22, 24, 25, 26 and 27 (although the Committee is somewhat inconsistent in the Covenant provisions it lists for these purposes).75 Some Committee members have pointed out that the European Convention and the Covenant impose different requirements in certain areas, such as the permissible responses to a public emergency.76 The Committee has also reminded States that permissible restrictions under the Covenant are ‘less broad-based’ than under the European Convention.77 As a practical response to such differing convention requirements Belgium, for example, maintained its reservation to the effect that Articles 19, 21 and 22 shall be applied in the context of the provisions and restrictions set forth or authorised in the equivalent provisions of the European Convention, aware also that the European Court (unlike the Committee) had power to require Belgium to change legislation inconsistent with the Convention.78

Terms of Limitation The scope of limitations under domestic law is a subject of routine questioning.79 Limitation provisions express the latitude available to States in restricting

71 Sri Lanka CCPR CCPR/CO/79/LKA (2003) 7. See also questioning on the report of Canada CCPR A/35/40 (1980) 160 (members asked whether the courts had already declared any law of Canada inoperative because its provisions were contrary to those of the Canadian Bill of Rights). 72 Sri Lanka CCPR CCPR/CO/79/LKA (2003) 7; El Salvador CCPR/C/SLV/CO/6 (2010) 4. See also questioning of Congo A/42/40 (1987) 260. 73 Malawi CCPR/C/MWI/CO/1 (2011) 6; Australia CCPR/C/AUS/CO/6 (2017) 5. 74 Austria A/47/40 (1992) 83; Austria CCPR/C/79/Add.103 (1998) 7; UK CCPR/C/GBR/CO/6 (2008) 6; Ireland CCPR/C/IRL/CO/3 (2008) 6; Sweden CCPR/C/SWE/CO/6 (2009) 5; Austria CCPR/C/AUT/CO/5 (2015) 5. 75 Iceland CCPR/C/79/Add.98 (1998) 8 (referring to Arts 3, 4, 12, 22, 24, 25, 26 and 27); Sweden CCPR/CO/74/SWE (2002) 6 (referring to Arts 25, 26 and 27); Iceland CCPR/CO/83/ISL (2005) 9 (referring to Arts 4, 12, 22, 25 and 27). 76 E.g., Austria CCPR/C/SR. 1719 (1998) 8 9, where Mr Pocar could not accept the statement in Austria’s report that if a situation of public emergency arose the authorities would act under the relevant provisions of Art. 15 of the European Convention not Art. 4 of the Covenant. The difficulty was that the requirements for dealing with emergencies were different in each instru ment, in regard both to the list of non derogable rights and to the non discrimination clause. 77 Malta CCPR/C/79/Add.29 (1993) 9; Iceland CCPR/C/79/Add.26 (1993) 8; Denmark CCPR/C/ 79/Add.68 (1996) 11. 78 Belgium A/47/40 (1992) 400 and 403. 79 Finland CCPR A/32/44 (1977) 125(h); Tunisia CCPR A/32/44 (1977) (10) 121(a); Iran A/37/40 (1982) 304.

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particular rights and are stated most clearly in Articles 12(3), 18(1), (3) and (4), 19(1) and (2), 21 and 22(1). The Committee has frequently voiced concern or recommended review of domestic law to ensure that the limitations imposed on the exercise of rights and freedoms under national law do not go beyond those permitted under the Covenant.80 It has also taken issue with States entering reservations to those Covenant provisions from which no derogation is permitted under Article 4(2) in times of public emergency threatening the life of the nation,81 or where States allow for general restrictions in circumstances where no derogation is permitted under Article 4(2).82 In some cases domestic laws give supremacy to religious law,83 or State ideology (in former Yugoslavia civil and political rights could be restricted ‘by the interests of socialist society’),84 thereby subjecting all limitation provisions to those sources. In the Committee’s view, cultural and religious specificities may be taken into consideration in order to develop adequate means to ensure respect for universal human rights, but they cannot jeopardise the very recognition of these rights for all.85

Reservations Concerning the Supremacy of Other Sources of Law A number of countries have entered reservations or interpretive declarations concerning the supremacy of national or religious law. Kuwait’s declaration on Article 2(1) and 3, to the effect that the rights which those Articles embody ‘must be exercised within the limits set by Kuwaiti law’ was considered by the

80 Mongolia A/47/40 (1992) 601; Mongolia CCPR/C/79/Add.7 (1992) 5; Hungary CCPR/C/79/ Add.22 (1993) 11; Sri Lanka CCPR/C/79/Add.56 (1995) 10; Morocco CCPR/C/79/Add.44 (1994) 17; Sri Lanka CCPR CCPR/CO/79/LKA (2003) 8; Grenada CCPR/C/GRD/CO/1 (2009) 6; Australia CCPR/C/AUS/CO/6 (2017) 16 (certain counter terrorism powers); Gambia CCPR/C/GMB/CO/2 (2018) 41 (strict compliance with Art. 21 needed for Public Order legisla tion). For the Committee’s concern at generalised forms of limitation, see, e.g., Jordan A/46/40 (1991) 570 (international conventions took precedence over domestic legislation ‘unless public order would be jeopardized thereby’); Japan CCPR/C/79/Add.102 (1998) 8 (‘public welfare’ is vague and open ended and which may permit restrictions exceeding those permissible); Azerbaijan CCPR/C/AZE/CO/4 (2016) 6 (constitutional modifications could lead to restrictions of Covenant rights through general and broad limitation clauses); Belize CCPR/C/BLZ/CO/1/ Add.1 (2018) 5 (constitutional limitation on grounds of public interest (‘some Covenant rights may never be restricted or be restricted subject only to very specific conditions provided for therein’)). 81 Mauritania CCPR/C/MRT/CO/1 (2013) 6 (reservation derogating from Art. 18). 82 Sri Lanka CCPR A/39/40 (1984) 109 (constitution permitted derogation from Art. 15). See also Mongolia A/47/40 (1992) 601. 83 Mauritania CCPR/C/MRT/CO/1 (2013) 6 (Islam as the only source of law in Mauritania); Kuwait CCPR/C/KWT/CO/3 (2016) 6; Jordan CCPR/C/JOR/CO/5 (2017) 4; Bahrain CCPR/ C/BHR/CO/1 (2018) 7. 84 Yugoslavia A/33/40 (1978) 369. See also Romania A/34/40 (1979) 151; Portugal A/36/40 (1981) 295 (the Portuguese Constitution expressly laid down as its object the transition to socialism); USSR A/40/40 (1985) 255 6. 85 Yemen CCPR/CO/84/YEM (2005) 5.

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Committee to be incompatible with the object and purpose of the Covenant and indicated that it should be withdrawn.86 The Committee also encouraged Mauritania to withdraw reservations under Article 18 (declaring its application to be without prejudice to the Islamic Sharia) and Article 23(4) (interpreting its provisions on the rights and responsibilities of spouses as to marriage as not affecting in any way the prescriptions of the Islamic Sharia).87 Similarly, with Bahrain’s reservations to Articles 3, 18 and 23, which were to be applicable only to the extent that they did not affect the prescriptions of Sharia.88 Given that Article 2(2) provides the overarching framework within which Covenant rights are to be promoted, reservations under that Article are incompatible with the Covenant.89 The Committee invited the United States to reconsider its declaration that the Covenant’s provisions are non-self-executing.90

Comprehensive Coverage The Committee habitually picks up State omissions in the domestic protection for Covenant rights, but typically does so in Concluding Observations under the relevant Covenant provision, rather than as a matter of implementation under Article 2. Nevertheless, on a number of occasions the Committee has invoked Article 2 to express regret or concern that not all of the provisions of the Covenant have been fully incorporated into domestic law,91 including to object that not all Covenant rights are guaranteed,92 in some cases in spite of an official promulgation of the Covenant.93 The Committee commented generally with reference to Article 2 on Australia’s lack of a ‘comprehensive legal framework for the protection of the Covenant rights at the federal level’.94

Institutions Although Article 2 makes no mention of human rights institutions, the Committee acknowledges their importance to effective Covenant implementation. It has encouraged a number of countries to establish (if they have not done so already) a national institution with competence in the field of human rights,95 across 86 88 90 91

Kuwait CCPR/C/KWT/CO/2 (2011) 7. 87 Mauritania CCPR/C/MRT/CO/1 (2013) 6. Bahrain CCPR/C/BHR/CO/1 (2018) 7. 89 GC 31 [5]. USA CCPR/C/USA/CO/4 (2014) 4(c). Norway CCPR/C/79/Add.27 (1993) 8; Korea A/47/40 (1992) 514; Hungary CCPR/CO/74/ HUN (2002) 6; New Zealand CCPR A/50/40 (1995) 176; Sudan CCPR/C/SDN/CO/3 (2007) 8; Denmark CCPR/C/DNK/CO/5 (2008) 6; Malawi CCPR/C/MWI/CO/1 (2011) 6. See also chapter on Article 26: Equality before the Law Equal Protection of the Law, section ‘Implementation’ (a recurring theme of the Committee’s review of periodic reports has been omissions from the coverage of domestic discrimination laws). 92 Ireland CCPR A/55/40 (2000) 432. 93 Dominican Republic CCPR A/48/40 (1993) 449. 94 Australia CCPR/C/AUS/CO/5 (2009) 8. See also Australia CCPR/C/AUS/CO/6 (2017) 5. 95 Monaco CCPR/CO/72/MCO (2001) 6; Italy CCPR/C/ITA/CO/5 (2006) 7; Japan CCPR/C/JPN/ CO/5 (2008) 9; San Marino CCPR/C/SMR/CO/2 (2008) 6; Botswana CCPR/C/BWA/CO/1

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a broad mandate.96 The recommended attributes for such a body are sufficient independence,97 transparency,98 proper resourcing99 (including financial, technical and human resources);100 proper functionality;101 authority spanning domestic and international human rights obligations;102 functions extending to enforcement and decision-making;103 appropriate implementing legislation;104 and compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).105

Federal Structures A number of treaty provisions have a bearing on federal structures. Article 2(2) envisages the ‘necessary steps’ to give effect to Covenant rights will be taken in accordance with domestic constitutional processes. Article 50 addresses the position of those countries with a federal structure, stating that ‘[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions’. Particular force is also lent by Article 27 of the Vienna Convention on the Law of Treaties, which prevents a State from appealing to provisions of its internal law as justification for a failure to perform a treaty. As General Comment 31 clarifies: All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level national, regional or local are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the

96 97

98 99

100 101 103 104 105

(2008) 8; Hungary CCPR/C/HUN/CO/5 (2010) 7; Dominican Republic CCPR/C/DOM/CO/5 (2012) (6); Iran CCPR/C/IRN/CO/3 (2011) 7; Iceland CCPR/C/ISL/CO/5 (2012) 5. See also Belgium CCPR/C/BEL/CO/5 (2010) 8. Switzerland CCPR/C/CHE/CO/3 (2009) 7; Germany CCPR/C/DEU/CO/6 (2012) 6; Sweden CCPR/C/SWE/CO/6 (2009) 4; Sweden CCPR/C/SWE/CO/7 (2016) 8; Bangladesh CCPR/C/ BGD/CO/1 (2017) 5; Slovakia CCPR/C/SVK/CO/4 (2016) 8. Tunisia CCPR/C/79/Add.43 (1994) 7, 14; Syria CCPR/CO/84/SYR (2005) 5; Ireland CCPR/C/ IRL/CO/3 (2008) 7; Maldives CCPR/C/MDV/CO/1 (2012) 7; Austria CCPR/C/AUT/CO/5 (2015) 9, 10; Rwanda CCPR/C/RWA/CO/4 (2016) 9; Algeria CCPR/C/DZA/CO/4 (2018) 15; Bahrain CCPR/C/BHR/CO/1 (2018) 9; Lao CCPR/C/LAO/CO/1 (2018) 7. Mauritius CCPR/C/MUS/CO/5 (2017) 7; Thailand CCPR/C/THA/CO/2 (2017) 9 (transparency of the process for selecting members of the Commission). Albania CCPR/C/ALB/CO/2 (2013) 6; Ireland CCPR/C/IRL/CO/4 (2014) 6; Ghana CCPR/C/ GHA/CO/1 (2016) 9; El Salvador CCPR/C/SLV/CO/7 (2018) 7; Guinea CCPR/C/GIN/CO/3 (2018) 9; Hungary CCPR/C/HUN/CO/6 (2018) 13; Lebanon CCPR/C/LBN/CO/3 (2018) 7; Liberia CCPR/C/LBR/CO/1 (2018) 8. Jordan CCPR/C/JOR/CO/4 (2010) 5; Djibouti CCPR/C/DJI/CO/1 (2013) 6; Cyprus CCPR/C/ CYP/CO/4 (2015) 5. Ethiopia CCPR/C/ETH/CO/1 (2011) 6. 102 Ireland CCPR/C/IRL/CO/4 (2014) 6. Netherlands CCPR/CO/72/NET (2001) 18; Georgia CCPR/C/GEO/CO/4 (2014) 6. Russian Federation CCPR/C/79/Add.54 (1995) 13; Swaziland CCPR/C/SWZ/CO/1 (2017) 14. UN General Assembly, National Institutions for the Promotion and Protection of Human Rights, 20 December 1993, A/RES/48/134.

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The Committee has addressed the question of federal structures in a number of instances. In the case of Australia, it took account of the fact that that political negotiations take place between Australia’s Commonwealth Government and the governments of those states and territories that have adopted legislation or policies that may involve a violation of Covenant rights, but it stressed that these negotiations cannot relieve Australia of its obligation to respect and ensure Covenant rights in all parts of its territory without any limitations or exceptions. Such political arrangements may not condone restrictions on Covenant rights that are not permitted under the Covenant.107 In reference to the United States, it noted the limited avenues available to ensure that state and local governments respect and implement the Covenant, adding (among a long list of recommendations) that the United States should engage with stakeholders at all levels to identify ways to give greater effect to the Covenant at federal, state and local levels, citing the above passage from General Comment 31.108 The Committee has offered no relief from the requirements of Article 50 in numerous Concluding Observations addressed to countries with a federal structure, reiterating the need to establish proper mechanisms to ensure the full applicability of the Covenant,109 and is particularly conscious that sub-national legislation in some countries is a source of inconsistency with the Covenant,110 and that in some countries violations are most likely to occur at the state or municipal level.111

Article 2 as a Tool for Changing Deficient Domestic Laws Individual Committee members from time to time have advocated more widespread adoption of findings of violation of Article 2(1) and (2) in addition to the more common findings under Article 2(3). Mr Salvioli has argued that failure to bring domestic legislation into line with the provisions of the Covenant constitutes a violation in and of itself of the obligations set out in Article 2(2). When the Committee in Weerawansa v. Sri Lanka found violation of Article 6(1) in the automatic and mandatory imposition of the death penalty in spite of a thirty-year moratorium on its use, he was dissatisfied that there was no separate finding under Article 2(2). In his Individual Opinion he expressed the view the legislation itself 106 GC 31, para 4. 107 Australia A/55/40 vol.1 (2000) 516 17. 108 A/69/40 (2014) 138 (4) USA. 109 Switzerland CCPR/CO/73/CH (2001) 6; Germany CCPR/CO/80/DEU (2004) 12; Mexico CCPR/C/MEX/CO/5 (2010) 5; Argentina CCPR/ARG/CO/4 (2010) 8; USA CCPR/C/USA/ CO/4 (2014) 4(d). See also Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 5, 6. From the perspective of implementation, see Brad Roth, ‘Understanding the “Understanding”: Federalism Constraints on Human Rights Implementation’, (2001) 47(3) Wayne L. Rev., p. 891. 110 Indonesia CCPR/C/IDN/CO/1 (2013) 6. 111 Mexico A/38/40 (1983) 64.

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breached Article 2(2) ‘inasmuch as Sri Lanka has not taken the requisite action under its domestic law to give effect to the right covered by article 6 of the Covenant’.112 More recently, the individual opinion of Messrs Salvioli and Rodríguez-Rescia in Mihoubi v. Algeria raised the potential for Article 2(2) findings to impact positively on remedies, but it also sheds light on why there may be Committee constraint in recommending legislative change. Amnesty laws applied in the context of the Algerian Civil War prohibited individuals, on pain of imprisonment, from pursuing legal remedies to uncover serious crimes such as (in that case) enforced disappearance. The Committee found a violation of Article 2(3), in conjunction with Articles 6, 7, 9, 10 and 16, with regard to the direct victim, and of Article 2(3) in conjunction with Article 7 with regard to the author, his mother. However, it did not recommend, as a means of redress, conforming these laws (which promote impunity) to the Covenant. These members considered the abolition of those laws indispensable to guaranteeing that incidents similar to those in this petition did not recur. They would have liked the Committee to find that by adopting those laws the State failed to comply with the general obligation in Article 2(2), and it should also have found a violation of that obligation in conjunction with other substantive provisions.113 By contrast, the individual opinion by Mr Neuman in Mihoubi already touched on in section ‘The Accessory Character of Article 2’, above, shows why he remained unconvinced of the practical value of Article 2(2) findings, given that the Committee is already able to examine the effect of laws on victims before it, as well as to recommend changes to a State’s legal framework to protect the victim and to prevent future violations against others. He was also concerned that recommending changes to 112 Individual Opinion by Committee member Mr Fabian Omar Salvioli (partially dissenting) at [9], [11] in Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, 17 March 2009. He also argued (at [8]) for a broad interpretation: ‘in keeping with the pro persona postulate, precedence in human rights matters must be given to the broadest interpretation when the issue is one of safeguarding rights, to the narrowest when the issue is that of determining the scope of restrictions, and in any event to an interpretation that makes sense of the rule or provision concerned.’ 113 Individual opinion by Mr Fabián Omar Salvioli and Mr Víctor Manuel Rodríguez Rescia at [8] [14], and Individual (concurring) Opinion by Mr Gerald L. Neumanin at [5] [10] in Mihoubi v. Algeria, CCPR/C/109/D/1874/2009, 18 October 2013. For a similar claim, see El Boathi v. Algeria, CCPR/C/119/D/2259/2013, 17 March 2017 [6.4] (violation of Art. 2(3), read in conjunction with Arts 6 (1), 7, 9 and 16 because the ordinance implementing the Charter for Peace and National Reconciliation prohibited using the justice system to shed light on the worst offences, including enforced disappearance). For the Committee’s approach to issues of impu nity and past human rights violations, see Anja Seibert Fohr, ‘Fight against Impunity under the International Covenant on Civil and Political Rights’, (2002) 6 Max Planck YBUNL, p. 301; and for sample Concluding Observations Argentina CCPR/C/ARG/CO/5 (2016) 27, 28; Liberia CCPR/C/LBR/CO/1 (2018) 10. For State accountability for corruption Cameroon CCPR/C/ CMR/CO/5 (2017) 9, 10; Dominican Republic CCPR/C/DOM/CO/6 (2017) 29; Romania CCPR/C/ROU/CO/5 (2017) 7; Algeria CCPR/C/DZA/CO/4 (2018) 11, 33; Guinea CCPR/C/ GIN/CO/3 (2018) 12.

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a State’s laws may impact on the interests of relevant stakeholders with no opportunity to participate in the Committee’s proceedings. In practice the Committee includes in its Views the need for measures to be taken to avoid recurrence of the type of violation in question, which may require changes to domestic laws or practices.114 It also expects recommendations in Concluding Observations to be implemented.115

A RT I C L E 2 ( 3 ) : R E M E D I E S The obligations in Article 2(3) are to ensure an effective, enforceable remedy for violation of a Covenant right, determined and enforced by a competent domestic authority. This may entail a combination of criminal and civil remedies,116 but criminal proceedings mark the gravity of more serious violations. Where effective remedies are not available for violation States should undertake a review with a view to filling any legislative gaps.117 The Committee often reminds States in the periodic review process of their obligations under Article 2(3) when there has been an OP1 finding of violation, and apparent obstacles exist to providing effective remedies.118 It has power to do so because its Views represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument.119 Article 2(3)(a): An Effective Remedy

Nature of Remedies A preference for judicial remedies under Article 2(3)(a) is indicated by the obligation in Article 2(3)(b) ‘to develop the possibilities of judicial remedy’, even though the same provision refers more broadly to ‘competent judicial, administrative or legislative authorities’. That description generally rules out

114 GC 31 [17]; Correia de Matos v. Portugal, CCPR/C/86/D/1123/2002/Rev.1, 28 March 2006 [8]; Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012 [12]; Nasheed v. Maldives, CCPR/C/122/D/2270/2013, 4 April 2018 [10]. 115 The Committee’s approach is represented by Bulgaria CCPR/C/BGR/CO/4 (2018) 5; Lithuania CCPR/C/LTU/CO/4 (2018) 5. 116 Finland CCPR/C/79/Add.91 (1998) 10 (the Committee was concerned that criminal law may not alone be appropriate to determine appropriate remedies for violation). 117 USA CCPR/C/USA/CO/4 (2014) 4(c). 118 Tajikistan CCPR/CO/84/TJK (2005) 8 (interim measures); Uzbekistan CCPR/CO/83/UZB (2005) 6 (interim measures); Ukraine CCPR/C/UKR/CO/7 (2013) 6; Kazakhstan CCPR/C/ KAZ/CO/2 (2016) 6; Australia CCPR/C/AUS/CO/6 (2017) 10; Algeria CCPR/C/DZA/CO/4 (2018) 8; Belarus CCPR/C/BLR/CO/5 (2018) 12; Hungary CCPR/C/HUN/CO/6 (2018) 10. 119 General Comment No. 33: Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 25 June 2009, CCPR/C/GC/33 [13] [14].

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decisions made solely by political and subordinate administrative organs,120 or those which are otherwise not independent and free of political constraint.121 In cases of serious violations, administrative remedies are inappropriate, and protective measures may be called for. In Bautista de Arellana v. Colombia, the Committee rejected the State’s submissions that an effective remedy was met by disciplinary sanctions against those responsible for Nydia Bautista’s incommunicado detention, abduction, torture and death, combined with the judgment of an administrative tribunal granting compensation to her family, ‘because purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective remedies within the meaning of article 2, paragraph 3, of the Covenant, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life’. In addition to damages, the Committee required appropriate protection for members of the family, and criminal proceedings leading to the prompt prosecution and conviction of those responsible. It also reminded the State of its obligation to ensure that similar events do not occur in the future.122 Shortly afterwards in Jose Vicente and Others v. Colombia the Committee more specifically indicated that the term ‘domestic remedies’ is understood to refer primarily to judicial remedies, while acknowledging that the effectiveness of a remedy also depends to some extent on the nature of the alleged violation: if the alleged offence is particularly serious, as with violations of basic human rights, in particular the right to life, purely administrative and disciplinary remedies cannot be considered adequate and effective. An additional feature of the particular proceedings at issue (involving military jurisdiction) was that any possibility of obtaining redress was precluded because the victims and their families were not party to and could not intervene in them.123 Article 2(3) is capable of being invoked in a wide range of circumstances. Examples include the inability to access legal aid (preventing a death row prisoner in Kennedy v. Trinidad and Tobago from challenging the propriety of his criminal proceedings);124 the inability to challenge an Electoral Commission ruling in Sinitsin v. Belarus which declared a nomination invalid, and resulted in a refusal to register the candidacy;125 and a non-discretionary award of substantial 120 Nowak, CCPR Commentary, p. 64. Valeska David usefully analyses the remedies in the Committee’s jurisprudence up to its 104th Session (excluding follow up) in ‘Reparations at the Human Rights Committee: Legal Basis, Practice and Challenges’, p. 8. For comparative reflections on the Inter American system, see Valeska David, ‘The Expanding Right to an Effective Remedy: Common Developments at the Human Rights Committee and the Inter American Court’, (2014) 3 Brit. J. Am. Legal Stud., p. 259. 121 Schachter, ‘The Obligation to Implement the Covenant’, at p. 330. 122 Bautista de Arellana v. Colombia, CCPR/C/55/D/563/1993, 27 October 1995 [8.2] [8.3]; also Arhuaco v. Colombia, CCPR/C/60/D/612/1995, 29 July 1997 [8.2], [10]. 123 Vicente et al. v. Colombia, CCPR/C/56/D/612/1995, 14 March 1996 [5.3]. 124 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.10] (the denial of legal aid was in violation of Art. 14(1) in conjunction with Art. 2(3)). 125 Sinitsin v. Belarus, CCPR/C/88/D/1047/2002, 20 October 2006 [7.3] (violation of Art. 25(b), read in conjunction with Art. 2).

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costs in Äärelä and Näkkäläjärvi v. Finland without regard for the implications for the particular authors or its deterrent effect.126 It was also violated in L.M.R. v. Argentina when a permanently mentally impaired rape victim had to appear before three separate courts, during which time her pregnancy was prolonged by several weeks, with attendant consequences for her health, ultimately leading her to resort to illegal abortion.127 Sometimes the Article 2(3)(a) deficiency is administrative failure on the part of the State. In Poma Poma v. Peru, in the context of a claim that a water diversion programme caused degradation of the author’s traditional grazing land in violation of her Article 27 rights, the competent domestic court did not allow her case to open because of a procedural error, namely, the lack of a report that the authorities were supposed to submit, thereby denying her an effective remedy.128 In Choudhary v. Canada the failure subsisted in the authorities cutting short an assessment of the author’s refugee claim because he did not establish his identity at an initial stage.129 In some circumstances the effective remedy under Article 2(3)(a) is provided by the State refraining from deportation, such as in Warsame v. Canada, when there were substantial grounds for believing there to be a real risk of irreparable harm.130 Even though certain Covenant Articles provide for a specific remedy in particular circumstances, the Committee is not thereby deterred from making findings under Article 2(3). For example, Article 9(3) and (4) guarantees prompt judicial control and entitlement to judicial proceedings to determine the lawfulness of detention, and Article 9(5) guarantees an enforceable right to compensation for unlawful arrest or detention. The Committee found a violation of the right to an effective remedy under Article 2(3) in addition to violations of Article 9(1)–(4) in Luyeye v. Zaire following incommunicado detention for a prolonged period without a hearing (because there was no effective remedy under the domestic law against the substantive violations involved),131 and in Baritussio v. Uruguay a violation of Article 9(4) in conjunction with Article 2(3), because there was 126 Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.2] (violation of Art. 14(1) in conjunction with Art. 2). 127 L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, 29 March 2011, [9.4], [10] (violation of Arts 7, 17, and 2(3) in relation to Arts 3, 7 and 17). 128 Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009 [7.8] (violation of Art. 2(3)(a), read in conjunction with Art. 27). 129 Choudhary v. Canada, CCPR/C/109/D/1898/2009, 28 October 2013 [9.6] [9.8] (the expulsion of the author and his family would constitute a violation of Arts 6(1) and 7, read in conjunction with Art. 2(3)). 130 Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [10] (deportation to Somalia would, if implemented, violate the author’s rights under Arts 6(1) and 7 (as well as 12(4), 17 and 23(1)). 131 Luyeye Magana ex Philibert v. Zaire, Communication No. 90/1981, CCPR/C/OP/2 at 124 (1990), 21 July 1983 [8] (Art. 2(3) violation in addition to Art. 9(1) (4)); also Koreba v. Belarus, CCPR/C/100/D/1390/2005, 25 October 2010 [8] (violation of Art. 2(3), read in conjunction with Arts 7 and 14, paragraph 3(g); Israil v. Kazakhstan, CCPR/C/103/D/2024/ 2011, 31 October 2011 [10] (violation of Art. 9(1), read together with Art. 2(3)(a)).

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no competent court to which the relevant co-author could have appealed during her arbitrary detention.132 The interrelation between Articles 2(3) and 14 is more complex, since Article 14(5) (review of a conviction by a higher tribunal) is lex specialis in relation to Article 2(3)(a) such that if the alleged violation of Article 14(5) is admissible, it is unnecessary for the Committee to decide on a violation of Article 2(3).133 Otherwise Article 14 findings are common in conjunction with Article 2(3), and span issues such as placing the burden of proof on the author that his or her confession was made under duress,134 the absence of a procedure for launching a new investigation to establish the author’s innocence in the case of a clear miscarriage of justice, in order to enable him to obtain compensation under Article 14(6),135 and inaction of administrative authorities and excessive delays in implementing court decisions.136 The text of Article 2(3)(a) (through the words ‘are violated’) suggests that the right to an effective remedy applies only after a violation has been committed,137 but this does not prejudice the protective obligations of the State, such as under Article 6 to protect the right to life of every person within its territory and under its jurisdiction.138 A broad range of remedies is required under Article 2(3): ‘an effective remedy may in certain circumstances require States Parties to provide for and to implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations’.139 Among other measures included in General Comment 31 are ‘restitution, rehabilitation and measures of satisfaction such as 132 Masslotti and Baritussio v. Uruguay, Communication No. R.6/25, Supp. No. 40 (A/37/40) at 187, 26 July 1982 [13]. 133 Terrón v. Spain, CCPR/C/82/D/1073/2002, 5 November 2004 [6.6]. 134 Singarasa v. Sri Lanka, CCPR/C/81/D/1033/2001, 21 July 2004 [7.4] (by placing the burden of proof that a confession was made under duress, the State violated Art. 14(2) and (3)(g), read together with Art. 2(3) and 7). 135 Dumont v. Canada, CCPR/C/98/D/1467/2006, 16 March 2010 [23.5] [23.6] (the author was deprived of an effective remedy to enable him to establish his innocence in order to obtain compensation under Art. 14(6), in violation of Art. 2(3), read in conjunction with Art. 14(6)). 136 Czernin v. Czech Republic, CCPR/C/83/D/823/1998, 29 March 2005 [7.5] (Art. 14(1) in conjunction with Art. 2(3)). See also Pimentel et al. v. Philippines, CCPR/C/89/D/1320/2004, 19 March 2007 [9.2] (court spent eight years and three hearings considering a subsidiary issue (the amount of a filing fee) without explanation, in violation of Art. 14(1), read in conjunction with Art. 2(3)). 137 The Committee’s early position is shown in C. F. et al. v. Canada, Communication No. 113/ 1981, CCPR/C/OP/1 at 13 (1980), 12 April 1985 [6.2]: the Covenant ‘provides that a remedy shall be granted whenever a violation of one of the rights guaranteed by it has occurred; consequently, it does not generally prescribe preventive protection, but confines itself to requiring effective redress ex post facto’. 138 See chapter on Article 6: The Right to Life, section ‘To Protect the Right to Life’; General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36, 30 October 2018 (advance unedited version) [19]. 139 GC 31 [19]. On interim relief, see Sandy Ghandhi, ‘The Human Rights Committee and Interim Measures of Relief’, (2007) 13 Canterbury L.R., p. 203.

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public apologies, public memorials, guarantees of non-repetition and changes in the relevant laws and practices, as well as bringing to justice perpetrators’.140 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted in 2005, contemplate ‘full and effective reparation’ for victims of gross violations of international human rights law and serious violations of international humanitarian law, appropriate and proportional to the gravity of the violation and the circumstances of each case.141 The Committee does not have power to order reparation. It instead draws to the attention of States their binding obligation to provide victims with an effective remedy, with an indication of which ones it considers appropriate. In Horvath v. Australia, for example, it noted that Article 2(3) does not impose on States any particular form of remedy. In deciding whether reparation is adequate it takes into consideration the availability and effectiveness not just of one particular remedy, but the cumulative effect of several remedies of different nature, such as criminal, civil, administrative or disciplinary.142

Duty to Investigate The Committee attached particular importance in General Comment 31 to the institutional support required for addressing claims of violation, in particular judicial mechanisms, and administrative machinery to discharge the general obligation to investigate allegations promptly, thoroughly and effectively through independent and impartial bodies, adding that failure to do so may give rise to an independent breach of Article 2(3).143 Both a criminal investigation and consequential prosecution are necessary remedies for violations of certain human rights, such as those protected by Article 6,144 and Article 7.145 Expedition and effectiveness are particularly important to the 140 GC 31 [16]. See also discussion in Nowak, CCPR Commentary,at pp. 67 8, on whether a violation must have occurred. The text bears some similarity to the requirement in the 1998 Rome Statute of the International Criminal Court, Art. 75(2) for ‘principles relating to repara tions to, or in respect of, victims, including restitution, compensation and rehabilitation’. 141 A/RES/60/147, adopted without vote, 64th plenary meeting, issued in GAOR, 60th sess., Suppl. No. 49, Annex, guideline 18. 142 Horvath v. Australia, CCPR/C/110/D/1885/2009, 27 March 2014 [8.2]. 143 GC 31 [15]. 144 Amirov v. Russian Federation, CCPR/C/95/D/1447/2006, 2 April 2009 [11.2]; Pestano v. Philippines, CCPR/C/98/D/1619/2007, 23 March 2010 [7.2]; Olmedo v. Paraguay, CCPR/ C/104/D/1828/2008, 22 March 2012 [7.3]. 145 Sathasivam and Saraswathi v. Sri Lanka, CCPR/C/93/D/1436/2005, 8 July 2008 [6.4]; Krasovskaya v. Belarus, CCPR/C/104/D/1820/2008, 26 March 2012 [8.3]. Put less explicitly in Rodríguez v. Uruguay, CCPR/C/51/D/322/1988, 19 July 1994 [12.3]; Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.4]; Gapirjanov v. Uzbekistan, CCPR/C/98/D/1589/2007, 18 March 2010 [8.3]; Katsaris v. Greece, CCPR/C/105/D/1558/ 2007, 18 July 2012 [10.4].

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adjudication of cases concerning torture and other forms of mistreatment under Articles 7,146 and sufficient steps must be taken to ensure safety following death threats or other threats to personal security under Article 9.147 The failure to investigate deprives victims of access to an effective remedy (especially where the perpetrators have been identified).148 It applies even in a state of emergency.149 A finding may be made under Article 2(3) for failure to investigate, even if there is insufficient evidence to support a finding of violation of the substantive Covenant provision.150 Undue delay in conducting an investigation may suffice.151 The investigative rigour applied must do justice to the severity of allegations.152 The Covenant does not provide that private individuals have a right to demand that the State criminally prosecute another person;153 it is for the State to prosecute, try and punish the culprits,154 including where private sources are responsible,155 especially for violations recognised as criminal under domestic or international law, such as torture or similar cruel, inhuman and degrading treatment, summary and arbitrary killing, and enforced 146 Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.5]; Banda v. Sri Lanka, CCPR/C/91/D/1426/2005, 26 October 2007 [7.4]; Kalamiotis v. Greece, CCPR/C/93/D/1486/ 2006, 24 July 2008 [7.3]; Gunaratna v. Sri Lanka, CCPR/C/95/D/1432/2005, 17 March 2009 [8.3]. See also General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992 [14] (complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective). 147 Jayawardena v. Sri Lanka, Communication No. 916/2000, A/57/40 at 234, 22 July 2002 [7.3] (the failure to investigate death threats to the life of the author violated his right to security of person under Art. 9(1). See also Páez v. Colombia, CCPR/C/39/D/195/1985, 12 July 1990 [5.6]; Chongwe v. Zambia, CCPR/C/70/D/821/1998, 25 October 2000 [5.3]; Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [7.2]; Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/ 2004, 14 July 2006 [9.7]; Gunaratna v. Sri Lanka, CCPR/C/95/D/1432/2005, 17 March 2009 [8.4]. 148 El Hassy v. Libya, CCPR/C/91/D/1422/2005, 24 October 2007 [8]; El Abani v. Libya, CCPR/C/ 99/D/1640/2007, 26 July 2010 [7.10]; Zarzi v. Algeria, CCPR/C/101/D/1780/2008, 22 March 2011 [7.10]. 149 Traore v. Côte d’Ivoire, CCPR/C/103/D/1759/2008, 31 October 2011 [6.5], [7.6]. 150 Amirov v. Russian Federation, CCPR/C/95/D/1447/2006, 2 April 2009 [11.4] [11.6] (violation of Arts 6 and 7, in each case read in conjunction with Art. 2(3) even though the evidence did not reach the threshold that would allow a finding of a direct violation of Arts 6 and 7). See also Novaković v. Serbia, CCPR/C/100/D/1556/2007, 21 October 2010 [7.2] [7.3] (violation of Art. 2(3) in conjunction with Art. 6); Avadanov v. Azerbaijan, CCPR/C/100/D/1633/2007, 25 October 2010 [9.5] (violation of Art. 7, read in conjunction with Art. 2(3)). 151 Georgopoulos et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010 [7.3] [7.4]. 152 Puertas v. Spain, CCPR/C/107/D/1945/2010, 27 March 2013 [8.6] (the closure of the case at the examination stage, which prevented the holding of the trial (juicio oral), did not meet the requirements or thoroughness for allegations of torture). 153 H.C.M.A. v. Netherlands, CCPR/C/35/D/213/1986, 30 March 1989 [11.6]; R.A.V.N. et al. v. Argentina, CCPR/C/38/D/344/1988, 26 March 1990 [5.5]; Vicenté et al. v. Colombia, CCPR/C/60/D/612/1995, 29 July 1997 [8.8]. 154 Grioua v. Algeria, CCPR/C/90/D/1327/2004, 10 July 2007 [9]; Kimouche v. Algeria, CCPR/C/ 90/D/1328/2004, 10 July 2007 [9]. See also Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011 [7.4]. 155 Krasovskaya v. Belarus, CCPR/C/104/D/1820/2008, 26 March 2012 [8.3]; GC 31 [8].

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disappearance.156 The obligation to investigate allegations of enforced disappearances and to bring the culprits to justice is not an obligation of result, but of means, and must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities of the State Party.157 On the investigative responsibilities of States in the event of extrajudicial killing, the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions provide extensive stipulations.158 As to amnesty programmes, in Concluding Observations the Committee has generally taken a strict line on amnesty laws,159 including their effects in impeding investigation,160 prosecution and appropriate punishment of those responsible for violations.161 They may undermine efforts to re-establish respect for human rights in the wake of massive human rights violations experienced under past regimes.162 When it comes to torture the Committee has long maintained that amnesty legislation is ‘incompatible with the obligations of the state party under the Covenant’ where it excludes . . . the possibility of investigation into past human rights abuses and thereby prevents the state from discharging its responsibility to provide effective remedies to the victims of those abuses’.163 Statutes of limitation can give rise to Article 2(3) claims if flagrantly inconsistent with the gravity and nature of the crime, such as rape,164 or crimes amounting to torture and ill-treatment.165 156 GC 31 [18]. 157 Prutina et al. v. Bosnia and Herzegovina, CCPR/C/107/D/1917 1918 & 1925/2009 & 1953/ 2010, 28 March 2013 [9.5]; Rizvanović and Rizvanovic v. Bosnia and Herzegovina, CCPR/C/ 110/D/1997/2010, 21 March 2014 [9.5]. 158 Principles on the Effective Prevention and Investigation of Extra legal, Arbitrary and Summary Executions, United Nations, 24 May 1989. 159 See, e.g., CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992 [15]; Peru CCPR/C/79/ Add.67 (1996) 20 (the Committee considers amnesty laws violate the Covenant) and Peru CCPR/C/79/Add.72 (1996) 9, deploring that its recommendation to repeal amnesty laws was not followed). 160 Spain CCPR/C/ESP/CO/6 (2015) 21 (concern that the 1977 Amnesty Act, which hinders the investigation of past human rights violations, particularly crimes of torture, enforced disap pearance and summary execution, should remain in force); Sierra Leone CCPR/C/SLE/CO/1 (2014) 17 (the blanket amnesty provision continued to impede the investigation of grave human rights violations that occurred in the past). See also Honduras CCPR/C/HND/CO/2 (2017) 8. 161 Serbia and Montenegro CCPR/CO/81/SEMO (2004) 9; Algeria CCPR/C/DZA/CO/3 (2007) 7; El Salvador CCPR/C/SLV/CO/6 (2010) 5. 162 Haiti CCPR/C/79/Add.49 (1995) 8. See also Macedonia CCPR/C/MKD/CO/2 (2008) 12 (ensure that the law on amnesty is not applied to the most serious human rights violations or violations that amount to crimes against humanity or war crimes). 163 Rodriguez v. Uruguay, CCPR/C/51/D/322/1988, 19 July 1994 [12.4]. 164 Maya v. Nepal, CCPR/C/119/D/2245/2013, 17 March 2017 [12.4] [12.5] (the State Party’s general failure to investigate and establish accountability for rape and abduction was in violation of Art. 2(1) and 3, read in conjunction with Art. 7, and Art. 26; a thirty five day statute of limitation for the crime of rape was in violation of Art. 2(3), read in conjunction with Arts 7 and 26). 165 For Committee condemnation of statutes of limitations for prosecuting torture, see Jordan CCPR/C/JOR/CO/5 (2017) 17; Liechtenstein CCPR/C/LIE/CO/2 (2017) 30; Serbia CCPR/C/

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Article 2(3)(b): Remedy to be Determined by Competent Authorities As with Article 2(3)(a), a literal reading of Article 2(3)(b) suggests that a breach of one of the guarantees of the Covenant must be first be established. However, as the Committee noted in Kazantzis v. Cyprus, the obligation in Article 2(3)(b) would be void if it this were the case. While a State Party cannot be reasonably required to make such procedures available no matter how unmeritorious claims may be, Article 2(3) provides protection to alleged victims if their claims are sufficiently well-founded to be arguable under the Covenant.166 The criminal jurisdiction of military authorities should be of ‘restrictive and exceptional scope’ in a democratic State where the rule of law must prevail, even when military personnel are tried.167 According to principle 9 of the draft Principles Governing the Administration of Justice through Military Tribunals, ‘in all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes’.168 Article 2(3)(c): Enforcement of Remedies As the Committee put it in Horvath v. Australia, the obligation in Article 2(3)(c) means that State authorities have the burden to enforce judgments of domestic courts which provide effective remedies to victims. In order to ensure that, States should use all appropriate means and organise their legal systems in such a way as to guarantee the enforcement of remedies in a manner that is consistent with their obligations under the Covenant. The Committee found a violation of Article 2(3) where domestic police legislation limited State responsibility for wrongful police acts without providing for an alternative mechanism for full compensation for Covenant violations by them. The Committee considered that in situations where the execution of a final judgment becomes impossible in view of the

SRB/CO/3 (2017) 26; Lao CCPR/C/LAO/CO/1 (2018) 24; Lebanon CCPR/C/LBN/CO/3 (2018) 27. On amnesties and impunity, see also section ‘Article 2: As a Tool for Changing Deficient Domestic Laws’, below, and chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Amnesties, Impunity and Statute of Limitations’. 166 Kazantzis v. Cyprus, CCPR/C/78/D/972/2001, 7 August 2003 [6.6]. See also Faure v. Australia, CCPR/C/85/D/1036/2001, 31 October 2005 [7.2] [7.4] (the absence of a remedy available to test an arguable claim under Art. 8 (to challenge the substantive elements of a Work for Dole Program) amounted to a violation of Art. 2(3), read together with Art. 8). 167 Kholodova v. Russian Federation, CCPR/C/106/D/1548/2007, 1 November 2012 [10.5] (viola tion of Art. 2(3)(a), in conjunction with Art. 6(1) in the absence of any explanation for military jurisdiction when trying military personnel accused of a grave crime). 168 The Draft Principles Governing the Administration of Justice Through Military Tribunals is an expert document submitted to the UN in 2006 (E/CN.4/2006/58).

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circumstances of the case, other legal avenues should be available in order for the State to comply with its obligation to provide adequate redress to a victim.169 Each State must ensure that the competent authorities will enforce remedies when granted. As the Committee put it in Panagiotis A. Sechremelis et al. v. Greece, the protection guaranteed by Article 2(3) ‘would not be complete if it did not extend to the enforcement of decisions adopted by courts in full respect of the conditions set up in article 14’.170

C O N C L US I O N Article 2 is fundamental to the character of the Covenant as a whole: in the major contribution it makes to the non-discrimination and equality provisions which make up much of the fabric of the Covenant; in defining the nature and scope of State obligations assumed in relation to substantive Covenant rights; and by giving practical efficacy to those obligations by guaranteeing effective remedies for violation. Implementation is a major theme of this work, stemming from the obligation on each State Party ‘to respect and to ensure’ Covenant rights. Each chapter specifically addresses issues concerned with implementation, disclosing distinct patterns across countries and over time and, as already observed in this chapter, Article 2 itself requires domestic implementation.171 Article 2 is at the heart of making the Covenant a domestically invokable reality among Contracting States, supported by remedies which are preferably judicially ordered.

169 Horvath v. Australia, CCPR/C/110/D/1885/2009, 27 March 2014 [8.6] [8.7]. 170 Sechremelis et al. v. Greece, CCPR/C/100/D/1507/2006, 25 October 2010 [10.4] (a Greek court ordered Germany to pay compensation to the relatives of the victims of the Distomo massacre in 1944, but the Minister of Justice refused to authorise enforcement for maintenance of good relations with another State). 171 See section ‘Achieving Covenant Compliance in Domestic Law’, above.

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Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights

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Covenant Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Comparable Provisions in Other International Instruments European Convention: no counterpart. American Convention on Human Rights: no counterpart. African Charter on Human and Peoples’ Rights: approximated in Article 18(3).

INTRODUCTION Article 3 in the Context of Other Equality and Non-discrimination Provisions Article 3 was introduced in discussion in the previous chapter, in sections ‘The Rights to Equality and Non-discrimination’ and ‘How the Key Equality and NonDiscrimination Provisions (Articles 2(1), 3 and 26) Differ from Each Other’. The main Covenant provisions which prohibit discrimination based on sex are Article 2(1) (requiring States to ‘respect and ensure’ Covenant rights); Article 3 (referring to the ‘equal rights of men and women’ with respect to the enjoyment of Covenant rights (duplicating in large part the gender-specific coverage of Article 2(1))); and Article 26 (guaranteeing ‘equal’ protection of the law, and thereby ‘equal and effective protection against discrimination’ on grounds of sex).1 Other provisions 1 On distinctions based on sex, see chapter on Article 26: Equality before the Law and Equal Protection of the Law, sections ‘Grounds of Discrimination’, ‘Sex’. Also of relevance in the same

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offering more confined protection include Article 4(1) (derogating measures in time of public emergency are not to be discriminatory on particular grounds which include sex), and the chapeau to Article 25 (which rules out distinctions mentioned in Article 2(1)). Also Article 25(c) requires access on ‘general terms of equality’ to public service, in an area of particularly important overlap with Article 3. Article 3, like Article 2, has accessory character by virtue of its reference to the equal rights of men and women ‘to the enjoyment of all civil and political rights set forth in the present Covenant’. The implications of its accessory character have already been discussed.2 A violation of Article 3 does not depend on violation of any other Covenant right.3 Article 3 has much in common with Articles 2(1) and 26, and may be violated concurrently with those provisions by the same factual substratum.4 They all share the same prohibition against direct and indirect discrimination, and treat as beyond the scope of the prohibitions in those provisions differential treatment if the criteria for it are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.5 However, although Article 3 may overlap with Articles 2(1) and 26, it has independent characteristics and value which will be explored in this chapter. Development of Article 3 and Enduring Resistance to its Implementation Article 3 has no precedent in the Universal Declaration.6 In the drafting of Article 3 in the Commission on Human Rights there was some discussion as to whether the provision as a whole was redundant given the content of Articles 2 and 26, and concern that it might undermine Article 2, in particular by suggesting that something further was required to make effective non-discrimination on grounds of sex. On the other hand, it was contended that Article 3 did not merely state the principle of equality but enjoined States to make equality an ‘effective reality’, that it would in no way be prejudicial to Articles 2 and 26, and that every effort should be made to

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chapter are sections ‘Discrimination on Grounds of Sex and Marital Status in Social Security Legislation’ and ‘Discrimination on Grounds of Sex in Other Contexts’. For the meaning of accessory character, see chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, section ‘The Accessory Character of Article 2’. E.g., Aumeeruddy Cziffra et al. v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(i)8]: ‘Whenever restrictions are placed on a right guaranteed by the Covenant, this has to be done without discrimination on the ground of sex. Whether the restriction in itself would be in breach of that right regarded in isolation, is not decisive in this respect. It is the enjoyment of the rights which must be secured without discrimination.’ E.g., Shirin Aumeeruddy Cziffra and 19 other Mauritian women v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(ii)2 4]. Discussed further in the chapter on Article 26: Equality before the Law and Equal Protection of the Law, section ‘Without Discrimination (Reasonable and Objective Criteria)’. On the origins of women’s rights, see Johannes Morsink, ‘Colonies, Minorities and Women’s Rights’, in The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Philadelphia Press, 1999), p. 92.

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do away with all prejudice in that field, even though it meant the repetition of so essential a provision as that of equality between men and women. It was also recalled that the General Assembly wished to include in the Covenant ‘an explicit recognition of equality of men and women’ to the enjoyment of human rights.7 In the Third Committee the point was made that even if Article 3 overlapped with Article 2, it was still necessary to reaffirm the equal rights of men and women, as a fundamental principle, enshrined in the UN Charter, especially as there were still many prejudices preventing its full application.8 Since the Covenant was concluded the single most significant advance was the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),9 which provides the most comprehensive coverage against nondiscrimination on the basis of sex, although other multilateral conventions cover particular aspects of gender equality, such as political rights,10 the nationality of married women,11 prerequisites for marriage,12 and equal remuneration and other occupational rights.13 CEDAW is supplemented by the Declaration on the Elimination of Violence against Women.14 7 A/2929 (1955), p. 22 Ch.VI [33] [34], referring to GA Res 421 (V), 4 December 1950, section E. There has been much discussion on the positive and negative formulations of equality. Matthew Craven distinguishes between positive and negative postulations of the principle of equality, in The International Covenant on Economic, Social and Cultural Rights: a Perspective on its Development (Clarendon Press, 1995), p. 154: ‘In positive terms the principle would require that everyone be treated in the same manner unless some alternative justification is provided. In negative terms, the principle might be restated to allow differences in treatment unless they are based upon a number of expressly prohibited grounds.’ As Gillian MacNaughton observes, in ‘Untangling Equality and Non Discrimination to Promote the Right to Healthcare for All’, (2009) 11 Health and Human Rights J., p. 47, at p. 48, when arguing that both positive equality and status based non discrimination have important roles in contributing to realising social rights, the positive and negative forms of equality are very different: ‘When positive equality is the norm, any inequality must be justified. When negative equality is the norm, most inequalities are accepted; only inequalities based upon one of the prohibited grounds, for example, race, sex, language or religion, must be justified. Importantly, in international law, the equality principle is usually stated in the negative form, which is commonly known as “non discrimination”.’ See also Bertrand Ramcharan on the equality and non discrimination as affirmative and negative statements of the same principle, in ‘Equality and Nondiscrimination’, pp. 252 3; and McKean, Equality and Discrimination Under International Law, pp. 285 8; and for normative and philosophical bases of the principle of equality, Jarlath Clifford, ‘Equality’, in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford University Press, 2013), p. 420. 8 A/5365 (1962), p. 24 [85]. 9 CEDAW, 18 December 1979, UNTS, vol. 1249, p. 13. For an invaluable guide, see Marsha Freeman, Christine Chinkin and Beate Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: a Commentary (Oxford University Press, 2012). 10 Convention on the Political Rights of Women, 20 December 1952, A/RES/640(VII). 11 Convention on the Nationality of Married Women, 29 January 1957, Opened for signature and ratification by General Assembly Resolution 1040 (XI) of 29 January 1957. 12 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962. 13 ILO Convention No. 100 Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 1951. 14 Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104.

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General Comment 28 addresses convergent aspects of Article 2(1) and 3 together when describing the State’s obligations of implementation: The obligation to ensure to all individuals the rights recognized in the Covenant, established in articles 2 and 3 of the Covenant, requires that States parties take all necessary steps to enable every person to enjoy those rights. These steps include the removal of obstacles to the equal enjoyment of such rights, the education of the population and of State officials in human rights, and the adjustment of domestic legislation so as to give effect to the undertakings set forth in the Covenant. The State party must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women.15

Discrimination on the basis of sex has been an unabated concern of the Committee in the periodic review process. It has urged affirmative action or other effective measures to adjust the gender wage gap,16 and to increase women’s participation at senior levels in public service,17 in the private sector,18 in the judicial system,19 academia,20 in parliament,21 and in Cabinet positions.22 It has observed how in different cultural and legal settings women have been subjected to discrimination in their ability to vote or be elected to public office,23 that in courts their testimony has been of less value than that of men,24 they have suffered discrimination with regard to the ability to acquire nationality or transmit nationality to their children, as well as in other aspects of nationality. Gender discrimination has also been deeply rooted in social structures such as male family headship,25 in patriarchal 15 CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10 (GC 28) [3]. Positive measures are also referred to at [29] in the context of Art. 25. 16 Japan CCPR/C/JPN/CO/5 (2008) 13; Sweden CCPR/C/SWE/CO/7 (2016) 18; Poland CCPR/C/ POL/CO/7 (2016) 21; Argentina CCPR/C/ARG/CO/5 (2016) 7; Azerbaijan CCPR/C/AZE/CO/4 (2016) 14; Madagascar CCPR/C/MDG/CO/4 (2017) 17; Romania CCPR/C/ROU/CO/5 (2017) 21; Bulgaria CCPR/C/BGR/CO/4 (2018) 19; Lithuania CCPR/C/LTU/CO/4 (2018) 15; Norway CCPR/C/NOR/CO/7 (2018) 12. 17 Finland CCPR/C/79/Add.91 (1998) 13; Georgia CCPR/CO/74/GEO (2002) 13; Haiti CPR/C/ HTI/CO/1 (2014) 8; Uruguay CCPR/C/URY/CO/5 (2013) 10; Cyprus CCPR/C/CYP/CO/4 (2015) 8; Spain CCPR/C/ESP/CO/6 (2015) 11. 18 Jamaica CCPR/C/JAM/CO/3 (2011) 13; Cape Verde CCPR/C/CPV/CO/1 (2012) 8; Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 10; Slovenia CCPR/C/SVN/CO/3 (2016) 11; Dominican Republic CCPR/C/DOM/CO/6 (2017) 11; Mongolia CCPR/C/MNG/CO/6 (2017) 9. 19 Kuwait CCPR/C/KWT/CO/2 (2011) 8; UK CCPR/C/GBR/CO/7 (2015) 12; Kuwait CCPR/C/ KWT/CO/3 (2016) 16; Congo CCPR/C/COD/CO/4 (2017) 15; Turkmenistan CCPR/C/TKM/ CO/2 (2017) 11. 20 Poland CCPR/C/POL/CO/6 (2010) 9; Iceland CCPR/C/ISL/CO/5 (2012) 7. 21 Hungary CCPR/C/HUN/CO/5 (2010) 10; Ukraine CCPR/C/UKR/CO/7 (2013) 9; Russian Federation CCPR/C/RUS/CO/7 (2015) 11; Burkina Faso CCPR/C/BFA/CO/1 (2016) 11; Kuwait CCPR/C/KWT/CO/3 (2016) 16; Moldova CCPR/C/MDA/CO/3 (2016) 13. 22 Suriname CCPR/C/SUR/CO/3 (2015) 13; Mauritius CCPR/C/MUS/CO/5 (2017) 13. 23 Kuwait CCPR/CO/69/KWT (2000) 6. 24 Kuwait CCPR/C/KWT/CO/2 (2011) 11; Yemen CCPR/C/YEM/CO/5 (2012) 10. 25 Korea CCPR/C/79/Add.114 (1999) 10.

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attitudes and prejudices,26 and customary law,27 in some cases leading women to be treated as minors,28 and with civil and political rights of women safeguarded ‘in a manner consistent with their nature’.29 Measures of protection against violence against women generally have been persistently inadequate. Domestic and sexual violence against women still remains prevalent in many States,30 without adequate investigation, prosecution and punishment of perpetrators.31 Violence against women has been seen in some cultures as a family matter so that it has gone unreported and unanswered.32 The interconnection between Article 3 and other rights is extensive. The pervasive impact of gender discrimination is evident in the Committee’s revised General Comment on Article 3, General Comment 28, which acknowledges that inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes.33 Chapter Outline The Committee’s jurisprudence specifically on Article 3 is relatively confined, but its Concluding Observations provide a rich narrative disclosing the reciprocal support which exists between Article 3 and other Covenant rights when they are concurrently engaged in different situations. Most of this chapter will be devoted to such situations, by reference to Concluding Observations and OP1 decisions. The chapter will end with coverage of matters of Article 3 implementation beyond those already canvassed in this Introduction.

S I T U ATI ON S IN W HI C H A RTI C L E 3 I S C O M MO N LY E N GA G ED The Right to Life The right to life under Article 6 is of special relevance in those countries where there is high incidence of prenatal sex selection, abortion of female foetuses, female

26 Jordan CCPR/C/79/Add.35 (1994) 15; Nepal CCPR/C/NPL/CO/2 (2014) 8; Sierra Leone CCPR/C/ SLE/CO/1 (2014) 10. For an inadmissible claim alleging a sexist policy of punishing men in matters of conjugal violence for the benefit of extremist feminist groups, thereby undermining the equality of marriage partners, see Dupuy v. Canada, CCPR/C/83/D/939/2000, 18 March 2005 [3.3]. 27 Gambia CCPR CCPR/CO/75/GMB (2002) 16. 28 Lesotho CCPR/C/79/Add.106 (1999) 10. 29 Egypt CCPR A/48/40 (1993) 682. 30 UK CCPR/C/GBR/CO/7 (2015) 13; Mauritania CCPR/C/MRT/CO/1 (2013) 10; Sweden CCPR/ C/SWE/CO/7 (2016) 20. 31 Iran CCPR/C/IRN/CO/3 (2011) 11. 32 Uzbekistan CCPR/C/UZB/CO/4 (2015) 9. 33 GC 28 [5].

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infanticide,34 the burning of widows and dowry killings. The right to the life of the mother is also central to the Committee’s approach to the termination of pregnancies.

Abortion A State’s law and policy towards abortion raise important issues under Articles 3, 6, 7, 17 and 26.35 Insofar as they relate to the right to life they are discussed further in the chapter on the right to life, where the main concerns are: to ensure that legislation is not unduly restrictive in cases where the life of the mother is endangered, including by resort to clandestine abortions; and that it permits abortion in cases of fatal foetal abnormality, for therapeutic reasons, and where pregnancy results from rape or incest.36 In Amanda Mellet v. Ireland the Committee found violations of Articles 7, 17 and 26 when restrictive abortion laws in Ireland caused the author, who discovered in the twenty-first week of her pregnancy that her foetus had terminal congenital defects, to choose between carrying it to term, knowing the outcome, or having a voluntary termination of pregnancy in a foreign country. The legal regime in Ireland was such that women with a foetus which had a fatal impairment and which they bore to full term received the full protection of the public healthcare system (their medical needs were met, they continued to be covered by health insurance and benefit from the care and advice of their public medical professionals throughout the pregnancy). After miscarriage or delivery they received any needed post-natal medical attention as well as bereavement care. By contrast, women who choose to terminate a non-viable pregnancy had to bear the cost themselves, entirely outside the public healthcare system, they were denied health insurance coverage and had to travel abroad at their own expense to secure an abortion (with all the financial, psychological and physical burdens that imposes), and they were denied much needed post-termination medical care and bereavement counselling. In Mellet the Committee made a finding of violation of Article 26 (not Article 3, even though the author’s claim was that Ireland’s criminalisation of abortion subjected her to a gender-based stereotype of the reproductive role of women primarily as mothers, and that stereotyping her as a reproductive instrument subjected her to discrimination). The differential treatment to which she was subjected (as a woman who chose a termination) in relation to other similarly situated women (who carried the foetus to term) failed to take into account adequately her medical needs and socio-economic circumstances and did not meet the requirements of 34 Clara Chapdelaine Feliciati covers the origins of female infanticide and the extent to which it is addressed under the Covenant in Feminicides of Girl Children in the Family Context: An International Human Rights Law Approach (Brill, 2018). 35 For a review of the developments of reproductive rights, see Nancy Northrup, ‘Family, Sex, and Reproduction: Emerging Issues in International Law: Introductory Remarks’, (2010) 104 Am. Soc. Int. L., p. 375. 36 Chapter on Article 6: The Right to Life, sections ‘Right to Life in Particular Settings’, ‘Abortion’.

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reasonableness, objectivity and legitimacy of purpose.37 A similar finding was made in Siobhán Whelan v. Ireland.38 For the denial of termination services as an aspect of Articles 7 and 17, see other relevant chapters.39 The Committee has maintained constant concern for maternal mortality from unsafe terminations.40 In response to the widespread use of abortion as a contraceptive measure, it has recommended affordable contraception in combination with reproductive and sexual health education in school curricula and for the broader public.41 It has been concerned at the persistently high incidence of adolescent pregnancy,42 which in some countries is connected to early marriage, and is also associated maternal mortality. In response to the practice in some countries of sex-selective abortions, the Committee has recommended monitoring the scale of this phenomenon, addressing its root causes and long-term implications, and carrying out awarenessraising activities on the detrimental impact of sex selection and on the equal value of girls and boys.43 Cruel, Inhuman or Degrading Treatment

Denial of Access to Pregnancy Termination Services The impact of the Irish health system was an Article 7 violation in Mellet v. Ireland (and Whelan v. Ireland) because it subjected the author to conditions of intense physical and mental suffering, exacerbated by her not being able to continue receiving medical care and health insurance coverage.44 The denial of a pregnancy termination likewise violated Article 7 in K.N.L.H. v. Peru, which concerned a 17-year-old girl who carried an anencephalic foetus to full term, causing her deep depression and distress at seeing her daughter’s

37 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.10] [7.11]. 38 The finding in Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017 [7.12], based on the same system in Ireland also avoided Art. 3. Although predating these decisions relevant discussion is provided by Siobhan Mullally, ‘Debating Reproductive Rights in Ireland’, (2005) 27 Hum. Rts Q., p. 78. 39 See chapters on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, sections ‘Cruel Inhuman or Degrading Treatment’, ‘Reproductive Rights (Denial of Abortion and Sterilisation)’; Article 17: Privacy, Family, Home, Correspondence; Honour and Reputation, sections ‘Key Elements of Article 17’, ‘Denial of Abortion Services’. 40 See chapter on Article 6: The Right to Life, section ‘Abortion’. 41 Moldova CCPR/C/MDA/CO/2 (2009) 17 (abortion as a contraceptive measure is widespread); Moldova CCPR/C/MDA/CO/3 (2016) 23 (forced contraception and forced abortions). 42 Colombia CCPR/C/COL/CO/7 (2016) 20; Moldova CCPR/C/MDA/CO/3 (2016) 17; Romania CCPR/C/ROU/CO/5 (2017) 25; Liberia CCPR/C/LBR/CO/1 (2018) 26. 43 Georgia CCPR/C/GEO/CO/4 (2014) 7(f). 44 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.4]; Whelan v. Ireland, CCPR/C/ 119/D/2425/2014, 17 March 2017 [7.4].

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marked deformities, knowing that the baby would not survive.45 Similarly, in L.M.R. v. Argentina when a young woman with permanent mental impairment with a mental age of between 8 and 10 years was pregnant as a result of a suspected rape.46 These issues are discussed further in the chapter on Article 7.47

Violence against Women, including Domestic Violence Violence against women is one of the most commonly raised issues in Concluding Observations under Article 3, concurrently with Article 7 and (when it concerns domestic violence) Article 23.48 The Declaration on the Elimination of Violence against Women is a particularly influential in directing the work of the Special Rapporteur on Violence against Women, whose mandate was created in 1994. Violence against women and domestic violence receive constant Committee attention. Recurring recommendations include: enhancements to legislation or the legal framework for the protection of women against violence, including domestic violence;49 nationwide awareness-raising initiatives and training activities for State officials, especially judges, prosecutors, police officers and medical and paramedical personnel, to ensure that they respond effectively in all cases of domestic violence and genderbased violence;50 compilation of statistical data;51 ensuring that occurrences are reported and thoroughly investigated, that perpetrators are prosecuted and, if convicted, punished with appropriate sanctions; and ensuring that victims have access to effective reparation and means of protection, including through effective enforcement of protection orders, and through the provision of adequate numbers of shelters.52 45 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003/Rev.1, 24 October 2005 [6.3]. 46 L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, 29 March 2011 [9.2]. See also L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [13.6]. 47 Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, sections ‘Cruel Inhuman or Degrading Treatment’, ‘Reproductive Rights (Denial of Abortion and Sterilisation)’. 48 For discussion of violence in the context of CEDAW, see Christine Chinkin, ‘Violence against Women’, in Marsha Freeman, Christine Chinkin and Beate Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: a Commentary (Oxford University Press, 2012), p. 443, and more generally Alice Edwards, Violence against Women under International Human Rights Law (Cambridge University Press, 2010); and with an emphasis on provoking State action, Shazia Choudhry and Jonathan Herring, ‘Righting Domestic Violence’, (2006) 20(1) Int. J. Law Policy Family, p. 95. 49 Jordan CCPR/C/JOR/CO/5 (2017) 11; Bulgaria CCPR/C/BGR/CO/4 (2018) 22; Hungary CCPR/C/HUN/CO/6 (2018) 26; Lebanon CCPR/C/LBN/CO/3 (2018) 20; Lithuania CCPR/C/ LTU/CO/4 (2018) 18. 50 Algeria CCPR/C/DZA/CO/4 (2018) 24; Liberia CCPR/C/LBR/CO/1 (2018) 25; Norway CCPR/ C/NOR/CO/7 (2018) 15; Sudan CCPR/C/SDN/CO/5 (2018) 20. 51 Bulgaria CCPR/C/BGR/CO/4 (2018) 22; Gambia CCPR/C/GMB/CO/2 (2018) 16. 52 Moldova CCPR/C/MDA/CO/3 (2016) 16; Australia CCPR/C/AUS/CO/6 (2017) 22; Bangladesh CCPR/C/BGD/CO/1 (2017) 18; Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 28; Mongolia CCPR/C/MNG/CO/6 (2017) 18; Romania CCPR/C/ROU/CO/5 (2017) 24; Swaziland CCPR/C/SWZ/CO/1 (2017) 27; Turkmenistan CCPR/C/TKM/CO/2 (2017) 13.

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Sexual Violence (including Rape) Protective measures are especially needed in times of internal conflict against rape, abduction and other forms of gender-based violence.53 The gang rape of the victim in Purna Maya v. Nepal left her with serious internal injuries requiring hospitalisation. In finding violations of Articles 2(1) and 3, read in conjunction with Article 7, and of Article 26, the Committee emphasised the discriminatory purpose of the attack, and the particularly serious discriminatory consequences for female rape victims in Nepalese society. It also severely criticised the thirty-five-day statute of limitation applicable to the crime of rape under domestic legislation, which led to the refusal to register her complaint; it was flagrantly inconsistent with the gravity and nature of the crime and had a disproportionately negative effect on women, who were predominantly the victims of rape.54 The author in Ribeiro v. Mexico was a journalist who was detained for offences of defamation and calumny following publication of a book about a child sexual exploitation ring. While detained she was subjected to repeated sexual assaults, death threats and other ill-treatment in violation of Article 7. The Committee further determined that the ill- treatment to which she was subjected had a discriminatory purpose based on her sex, evident in the sexual comments made against her, and the sexualised treatment and gender-based violence inflicted on her, and it found a violation of Article 3, read in conjunction with Article 7.55 The Committee did not address Article 3, though made a clear Article 26 finding, in X v. Sri Lanka in the official handling of the author’s complaint after she was abducted and raped by two Sinhalese men. The police failed to provide interpretation services while recording her statement, and at the trial of the alleged perpetrators of her rape the judge did not prevent her being publicly humiliated by defence counsel.56 Measures of protection against violence against women generally have been inadequate, resulting in a reluctance to report (even in cases of rape).57 In some countries a rapist may be exempt from prosecution or punishment if he marries the victim.58

53 GC 28 [8]; Congo CCPR/C/COD/CO/4 (2017) 19, 20. 54 Maya v. Nepal, CCPR/C/119/D/2245/2013, 17 March 2017 [12.4] [12.5]. See also Nepal CCPR/ C/NPL/CO/2 (2014) 13. 55 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018 [10.2] [10.3]. 56 X v. Sri Lanka, CCPR/C/120/D/2256/2013, 27 July 2017 [7.5] [7.6]. 57 Sudan CCPR/C/SDN/CO/3 (2007) 14. 58 Peru CCPR/C/79/Add.72 (1996) 15; Dominican Republic CCPR/C/DOM/CO/5 (2012) 12. See also Paraguay CCPR A/50/40 (1995) 207 (distinctions in the punishment accorded to persons who rape or abduct women depending on the marital status of the victim).

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In some countries marital rape has not been criminalised,59 or only in certain narrow circumstances.60

Other Forms of Violence against Women Articles 3 and 7 are often engaged in situations of forced abortion and forced sterilisation;61 genital mutilation;62 and other harmful traditional practices, including rites of widowhood,63 ‘wife inheritance’,64 Devadasi,65 Oro worship (which prohibits women from leaving their homes during a certain period),66 ceremonies which lead to sexual abuse,67 and breast ironing.68 As an issue under Articles 3, 7, 24 and 26 the Committee has raised concern at irreversible and invasive medical interventions for purposes of gender assignment in infants and children not able to provide fully informed and free consent.69 Slavery, Servitude, Forced and Compulsory Labour Article 8 is a contemporary issue in the trafficking of women and children, as well as forced labour and prostitution, and may also take more subtle forms such as domestic or other kinds of personal service.70 59 Ethiopia CCPR/C/ETH/CO/1 (2011) 8; Korea CCPR/C/KOR/CO/4 (2015) 19; Kuwait CCPR/C/ KWT/CO/3 (2016) 18; Congo CCPR/C/COD/CO/4 (2017) 17; Jordan CCPR/C/JOR/CO/5 (2017) 10; Madagascar CCPR/C/MDG/CO/4 (2017) 23; Mauritius CCPR/C/MUS/CO/5 (2017) 19; Belarus CCPR/C/BLR/CO/5 (2018) 23; Guinea CCPR/C/GIN/CO/3 (2018) 23; Lebanon CCPR/C/LBN/ CO/3 (2018) 19; Liberia CCPR/C/LBR/CO/1 (2018) 24; Lithuania CCPR/C/LTU/CO/4 (2018) 17; Sudan CCPR/C/SDN/CO/5 (2018) 19. On the importance of this issue, see Melanie Randall and Vasanthi Venkatesh, ‘The Right to No: State Obligations to Criminalize Marital Rape and International Human Rights Law’, (2015) 41 Brook. J. Int. L., p. 154; Melanie Randall and Vasanthi Venkatesh, ‘Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations under Human Rights Law’, (2015/16) 109 AJIL, p. 189. 60 Burkina Faso CCPR/C/BFA/CO/1 (2016) 17 (if committed ‘repeatedly’ or when the partner exhibits ‘any physical incapacity to engage in a sexual relationship’, and even then it is punish able only with a fine); Jamaica CCPR/C/JAM/CO/4 (2016) 23. For discussion on marital rape under the European Convention, see Stephanie Palmer who discussed marital rape in the European context in ‘Rape in Marriage and the European Convention on Human Rights’, (1997) 5(1) Feminist Legal Studies, p. 91; Clare McGlynn, ‘Rape, Torture and the European Convention on Human Rights’, (2009) 58 Int. & Comp. L.Q., p. 565. 61 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’. 62 See ibid., section ‘Female Genital Mutilation’. 63 Benin CCPR/C/BEN/CO/2 (2015) 12. 64 Kenya CCPR/C/KEN/CO/3 (2012) 15. 65 India CCPR/C/79/Add.81 (1997) 32. 66 Benin CCPR/C/BEN/CO/2 (2015) 12. 67 Malawi CCPR/C/MWI/CO/1 (2014) 8. 68 Cameroon CCPR/C/CMR/CO/5 (2017) 19. 69 Australia CCPR/C/AUS/CO/6 (2017) 25. See also Switzerland CCPR/C/CHE/CO/4 (2017) 24, 25 (concern that the performance of surgical procedures on intersex children, causing physical and mental suffering, is still not strictly regulated; recommendation to take all necessary measures to ensure that no child undergoes unnecessary surgery intended to assign sex, and to see to it that medical records are accessible and that inquiries are launched in cases where intersex persons are subjected to treatment or surgical procedures without their effective consent). 70 See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour, sections ‘Forced Marriage’, ‘Human Exploitation by Trafficking’.

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Article 17 may also be invoked in the conditions of domestic labour as they have existed in the maquila/maquiladora (fabrication) industries in Guatemala and in parts of Mexico involving (in both countries) women being required to undergo mandatory pregnancy testing.71 Pregnancy testing during the recruitment process was also practised more widely in business enterprises in Guatemala.72 The Right to Liberty and Freedom of Movement Articles 9 and 12 operate where women are confined by cultural constraints within the house, or where marital powers over the wife, or parental powers over adult daughters, prevent them travelling or being issued with a passport. Conditions of Detention By virtue of Article 10, women are required to be separated from men in prisons, including from male guards, and pregnant women prisoners have particular requirements for humane treatment especially during birth and while caring for their newborn children, but these safeguards are often abused. Equality before the Courts and Tribunals One of the clearest Article 3 findings was in Ato del Avellanal v. Peru because only the husband was entitled to represent matrimonial property, that is, the wife was not equal to her husband for purposes of suing in Court, in violation of Articles 3, 14(1) and 26, even though the author has ownership of the property and had sought recovery of rent arrears.73 Article 14 is also a concern in those countries where women do not give evidence as witnesses on the same terms as men, where so-called ‘honour crimes’ remain unpunished, and where laws impose more severe penalties on women than on men for adultery or other offences. The Right to Recognition before the Law Article 16 implies that women may not be treated as objects to be gifted or traded. Furthermore, the sexual life of a woman should not be taken into consideration in deciding the extent of her legal rights and protections, including protection against rape.

71 Guatemala CCPR/C/GTM/CO/3 (2012) 9; Mexico CCPR/C/MEX/CO/5 (2010) 7. 72 Guatemala CCPR/C/GTM/CO/4 (2018) 8. 73 Del Avellanal v. Peru, Communication No. 202/1986, Supp. No. 40 (A/44/40) at 196, 28 October 1988 [10.1] [10.2].

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Privacy, Family Life and the Home The early and valuable leading case on the intersection between Articles 3 and 17 is Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius. The Committee made multiple findings of violation of Articles 2(1), 3 and 26, in conjunction with Article 17(1), because immigration legislation required alien husbands of Mauritian women, but not alien wives of Mauritian men, to apply for a residence permit. Only those authors who were married were affected. The underlying point was that the protection of a family may not vary with the sex of the one or the other spouse.74 Articles 3, 7 and 17 may concurrently apply in cases of forced sterilisation where a husband’s authorisation is needed, where sterilisation is required for women with a certain number of children or those of a certain age, or where doctors and other health personnel are under a legal duty to report cases of women who have undergone sterilisation or abortion.75 As discussed in more detail in the chapter on Article 17, that provision may be violated in the denial of access to termination services.76 Article 17 was found to be violated in L.N.P. v. Argentina in the case of a 13year-old victim of rape who was subjected to an intrusive and unnecessary medical examination, constant enquiries by a social worker and medical personnel into her sexual life and morality, as well as by the domestic court at the trial of those charged with her rape.77 As an Article 14 matter the issue of virginity was a decisive factor in the trial.78 Neither Article 3 nor Article 26 were applicable in Martínez de Irujo v. Spain to challenge the rules of hereditary succession to ranks and titles of nobility, to enable the eldest daughter (rather than her younger brother) to succeed to the dukedom of Almodóvar del Río. Given the accessory nature of Article 3, she argued that a title of nobility was an element of the private life of the family group of which it forms part. The Committee decided this institution was beyond the values behind the principles of equality before the law and nondiscrimination.79

74 Aumeeruddy Cziffra et al. v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(ii)2 4] (violation of Arts 2(1), 3 and 26 in conjunction with Art. 23(1). Article 26 was relevant also by virtue of the ‘equal protection of the law’; the protection of Art. 23 must be equal, i.e., not discriminatory, e.g., on the basis of sex). 75 GC 28 [20]. See also chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’. 76 See chapter on Article 17: Privacy, Family, Home, Correspondence; Honour and Reputation, section ‘Denial of Abortion Services’. 77 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [13.7]. 78 Note GC 28 [20]. 79 Martínez de Irujo v. Spain, CCPR/C/80/D/1008/2001 (2004), 30 March 2004 [6.5] (incompatible ratione materiae with the provisions of the Covenant). See also Liechtenstein CCPR/C/LIE/CO/ 2 (2017) 13, 14.

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Freedom of Thought, Conscience and Religion Article 18 becomes an issue where the free choice of religion is impeded by customary rules requiring permission in such choice or is subject to interference from fathers, husbands, brothers or others; or where women are deterred from marrying outside their faith. The potential for Article 3 to apply to criminal prohibitions and other restrictions on religious dress by women is demonstrated by recent Article 26 findings of ‘intersectional discrimination based on gender and religion’ against France. In Sonia Yaker v. France and Miriana Hebbadj v. France the criminal prohibition against concealing the face in public areas disproportionately affected Muslim women who chose to wear the full face veil, even if the ban was based on the apparent assumption that the full veil is inherently discriminatory and that women who wear it are forced to do so.80 A similar finding was made in F.A. v. France when a Muslim woman who habitually wore the headscarf was dismissed from a day care centre in an act of ‘indirect’ discrimination, on the basis of a clause in internal regulations commanding secularism and neutrality, which affected Muslim women in a particularly disadvantageous way.81 It was not until Seyma Türkan v. Turkey that the Committee made an Article 3 finding of violation, in conjunction with Article 18 (as well as Article 26), in answer to the author in that instance being refused registration at a university to which she had won a competitive place following a selection exam, because she wore a wig substituting for a headscarf. The Committee ‘noted’ the author’s claim that such a restriction would be relevant to many Muslim female students in Turkey and, as a result, women who cover their hair in line with their religious belief could effectively be prevented from pursuing a higher education in a university, like the author. The State offered no explanation of how the restriction was based on reasonable and objective criteria, in pursuit of an aim that was legitimate under the Covenant.82 The Committee noted with concern in the case of Thailand that gender equality legislation allowed for open-ended exceptions to gender discrimination on grounds of religion and national security.83

80 Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [8.15] [8.17]; Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.15] [7.17]. 81 F.A. v. France, CCPR/C/123/D/2662/2015, 16 July 2018 [8.10] [8.13]. See also Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [8.15] [8.17]; Hebbadj v. France, CCPR/C/123/D/ 2807/2016, 17 July 2018 [7.15] [7.17] (the criminal prohibition against concealing the face in public areas disproportionately affected the author in each case as a Muslim woman who chose to wear the full face veil). 82 Türkan v. Turkey, CCPR/C/123/D/2274/2013, 17 July 2018 [7.7] [7.8]. 83 Thailand CCPR/C/THA/CO/2 (2017) 11 (the exception allowed discrimination on grounds of religion and national security, broadly ‘following religious rules, or for security of the nation’).

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Freedom of Expression Issues of freedom of expression arise under Article 19 in the publication and dissemination of obscene and pornographic material in contest with Article 3 where it portrays women and girls as objects of violence or degrading or inhuman treatment, and is likely to promote these kinds of treatment of women and girls.84 The Right of Men and Women of Marriageable Age to Marry Women are often not able to marry freely as they are entitled to under Article 23(2) as a result of religious taboos against marrying those of another faith, where a male legal guardian must consent, or where criteria for marriage do not adequately ensure their informed and uncoerced decision; equally where there is pressure on a victim of rape to agree to marry, including as a result of laws which allow the reduction of criminal responsibility of rapists if they marry their victim. Grounds for divorce and annulment are often not the same for men and women, nor are matters of property distribution, alimony, child custody, or inheritance rights on the death of a spouse (see next section). Equality of Rights and Responsibilities of Spouses (Marriage, During Marriage and Dissolution) The Committee’s examination of country reports discloses discrimination against women, incompatible with Articles 3 and 23(4) with regard to age stipulations for marriage,85 the approval required,86 marrying outside their faith;87 when they may remarry after divorce;88 the right to repudiate a marriage89 or divorce;90 the dissolution of marriage,91 as well as in the responsibilities of spouses as to marriage.92 The laws of adultery are sometimes defined in discriminatory terms,93 with harsher sentences for offences of adultery for women than for men,94 among other differences.95

84 GC 28 [22]. 85 Japan CCPR/C/JPN/CO/5 (2008) 11. 86 Kuwait CCPR/CO/69/KWT (2000) 5. 87 Algeria CCPR/C/79/Add.95 (1998) 13 (a woman may not marry a non Muslim while the same restriction did not apply to a man); Morocco CCPR/CO/82/MAR (2004) 27. 88 Venezuela CCPR/CO/71/VEN (2001) 22; Japan CCPR/C/JPN/CO/5 (2008) 11. 89 Suriname A/35/40 (1980) 291 (a married woman did not enjoy the same rights as her husband who could easily repudiate her); Chad CCPR/C/TCD/CO/2 (2014) 8. 90 Sudan CCPR/C/SDN/CO/3 (2007) 13; Morocco CCPR/C/MAR/CO/6 (2016) 13; Bahrain CCPR/C/BHR/CO/1 (2018) 19; Gambia CCPR/C/GMB/CO/2 (2018) 13. 91 Mauritania CCPR/C/MRT/CO/1 (2013) 9. 92 Venezuela A/36/40 1980 61. 93 Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 11 (adultery was a crime and was defined in discrimi natory terms when it was committed by a woman). See also Mauritius A/33/40 (1978) 492 (questioning whether the wife, like the husband in similar circumstances, was entitled to claim damages from someone who had committed adultery with her husband). 94 Lebanon CCPR/C/79/Add.78 (1997) 18. 95 El Salvador A/42/40 (1987) 168; Venezuela CCPR/CO/71/VEN (2001) 22.

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Arranged marriages and forced marriages are covered in more detail in the chapter on Article 23,96 as is early marriage.97 Forced marriage is one of the forms of servitude prohibited by Article 8.98 Polygamy is a constant Article 3 issue.99 Female genital mutilation (FGM) is of perpetual concern additionally under Articles 2, 7, 23 and 24,100 as well as because of the high rate of maternal mortality from the practice.101 The Committee has consistently highlighted the inequality of women concerning inheritance,102 including as a result of failure to register customary marriages,103 and in the devolution of property,104 such that women do not inherit property on an equal footing with men,105 are not entitled to the same share of inheritance as men,106 and the law of succession discriminates between the property interests of widows and widowers.107 Inequality has also been applied against women in marriage regarding property ownership,108 with women deprived of equal rights in the management of family assets.109 96 Article 23: Protection for the Family, section ‘Article 23(3): Full Consent Required of the Intending Spouses’. 97 Ibid., sections ‘Article 23(2): The Right to Marry and to Found a Family’, ‘Of Marriageable Age’. 98 See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour, section ‘Forced Marriage’. 99 Algeria CCPR/C/79/Add.95 (1998) 13; Cameroon CCPR/C/79/Add.116 (1999) 10; Gabon CCPR/CO/70/GAB (2000) 9; Gambia CCPR CCPR/CO/75/GMB (2002) 18; Togo CCPR/ CO/76/TGO (2002) 21; Mali CCPR/CO/77/MLI (2003) 10; Uganda CCPR/CO/80/UGA (2004) 9; Central African Republic CCPR/C/CAF/CO/2 (2006) 10; Uzbekistan CCPR/CO/83/ UZB (2005) 24; Zambia CCPR/C/ZMB/CO/3 (2007) 13; Cameroon CCPR/C/CMR/CO/4 (2010) 9; Ethiopia CCPR/C/ETH/CO/1(2011) 9; Kenya CCPR/C/KEN/CO/3 (2012) 7; Angola CCPR/C/AGO/CO/1 (2013) 11; Philippines CCPR/C/PHL/CO/4 (2012) 11; Chad CCPR/C/TCD/CO/2 (2014) 8; Djibouti CCPR/C/DJI/CO/1 (2013) 7; Uzbekistan CCPR/C/ UZB/CO/4 (2015) 8; Burkina Faso CCPR/C/BFA/CO/1 (2016) 15; Morocco CCPR/C/MAR/ CO/6 (2016) 13; Jordan CCPR/C/JOR/CO/5 (2017) 8; Madagascar CCPR/C/MDG/CO/4 (2017) 19; Swaziland CCPR/C/SWZ/CO/1 (2017) 24; Bahrain CCPR/C/BHR/CO/1 (2018) 17; Guinea CCPR/C/GIN/CO/3 (2018) 21; Sudan CCPR/C/SDN/CO/5 (2018) 23; GC 28 [24]. 100 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Female Genital Mutilation’. 101 Senegal CCPR/C/79/Add.82 (1997) 12. 102 Iraq CCPR A/53/40 (1998) 102; Tanzania CCPR/C/TZA/CO/4 (2009) 9; Ghana CCPR/C/ GHA/CO/1 (2016) 11; Djibouti CCPR/C/DJI/CO/1 (2013) 7; Swaziland CCPR/C/SWZ/CO/1 (2017) 24; Gambia CCPR/C/GMB/CO/2 (2018) 13; Lebanon CCPR/C/LBN/CO/3 (2018) 15. 103 Namibia CCPR/CO/81/NAM (2004) 9. 104 Sri Lanka CCPR/CO/79/LKA (2003) 19; Kenya CCPR/C/KEN/CO/3 (2012) 7. 105 Maldives CCPR/C/MDV/CO/1 (2012) 12; Burkina Faso CCPR/C/BFA/CO/1 (2016) 15; Ghana CCPR/C/GHA/CO/1 (2016) 11; Gambia CCPR/C/GMB/CO/2 (2018) 13. 106 Lebanon A/38/40 (1983) 354. 107 Kenya CCPR/C/KEN/CO/3 (2012) 7. See also Togo CCPR/CO/76/TGO (2002) 21; Mali CCPR/CO/77/MLI (2003) 10. 108 Namibia CCPR/CO/81/NAM (2004) 9; Burkina Faso CCPR/C/BFA/CO/1 (2016) 15; Namibia CCPR/C/NAM/CO/2 (2016) 11; Gambia CCPR/C/GMB/CO/2 (2018) 13. See also the ques tioning of Senegal CCPR A/35/40 (1980) 215, 235 (concerning its ‘marriage property system’ which was defended as the most appropriate in a country where polygamy was still widely practised and the system of legal community of property could give rise to difficulties if some of the women in a household worked and others did not). 109 France A/38/40 (1983) 332 (in principle, the husband controlled common possessions); Congo CCPR/C/COD/CO/3 (2006) 11; Ghana CCPR/C/GHA/CO/1 (2016) 11.

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There is also discrimination in matters of residence, so that authorisation is needed in some countries for a married woman’s change of residence from her husband or a legal judgment,110 or a wife is required to follow her husband wherever they take up residence.111 In some countries a wife must accompany her husband at home or in travel,112 and laws may restrict the right of a married woman to leave the country in the absence of her husband’s consent.113 Discrimination also exists to the detriment of women compared with men regarding to the ability to acquire nationality,114 and the transmission of nationality to children.115 In some cases a woman could lose her nationality if she married a foreigner.116 In some jurisdictions laws have designated the husband as head of the family,117 the father has exercised patria potestas (‘power of a father’) over children,118 wives have been relegated to an inferior position in that they must obey their husbands’ orders and in addition must not leave their homes except in limited situations,119 and women have been subordinated both within the family and in society.120 Under some laws custody of the children is given to the husband in the event of divorce,121 and single mothers under 16 years of age lack legal capacity to recognise their children.122 The Committee has also maintained concern for discrimination in the treatment of children born out of wedlock.123 Domestic violence is separately discussed above, and in the chapter on Article 7,124 but is relevant to this heading if it includes marital rape, or marital rape is not criminalised.125 Foreign women sometimes face particular residency problems 110 112 114 115

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Rwanda A/43/40 (1988) 210. 111 Chile A/34/40 (1979) 89. Iraq A/35/40 (1980) 137. 113 Lebanon CCPR/C/79/Add.78 (1997) 18. Sierra Leone CCPR/C/SLE/CO/1 (2014) 10. UK A/33/40 (1978) 192, 224; Jordan A/37/40 (1982) 182; Luxembourg CCPR A/41/40 (1986) 74; Mauritania CCPR/C/MRT/CO/1 (2013) 9; Jordan CCPR/C/JOR/CO/5 (2017) 8; Madagascar CCPR/C/MDG/CO/4 (2017) 19; Swaziland CCPR/C/SWZ/CO/1 (2017) 24; Bahrain CCPR/C/BHR/CO/1 (2018) 19; Lebanon CCPR/C/LBN/CO/3 (2018) 15. UK (Virgin Islands) A/34/40 (1979) 323. Senegal A/35/40 (1980) 215; Monaco CCPR/CO/72/MCO (2001) 9; Togo CCPR/CO/76/TGO (2002) 21. Nicaragua A/38/40 (1983) 237. See also Madagascar A/33/40 (1978) 290 (preponderance of prerogatives given to the husband in order to impart unity and direction to the household); Spain A/34/40 (1979) 224 (a bill was under consideration to confer patria potestas jointly on the father and mother); Central African Republic CCPR/C/CAF/CO/2 (2006) 9 (concern with regard to the exercise of parental authority). Yemen CCPR A/50/40 (1995) 255. 120 Chad CCPR/C/TCD/CO/2 (2014) 8. Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 8. See also Iraq A/35/40 (1980) 150 (after the dissolution of her marriage, the mother of an infant may marry a man not related to her infant but in such a case she lost her right to custody); Morocco CCPR/C/MAR/CO/6 (2016) 13; Lebanon CCPR/C/LBN/CO/3 (2018) 15. Peru CCPR/C/79/Add.72 (1996) 14. Czechoslovakia A/33/40 (1978) 134; Iran A/33/40 (1978) 312; Canada A/35/40 (1980) 173; Gambia A/39/40 (1984) 340; Belgium A/43/40 (1988) 483. See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Domestic Violence’. Malawi CCPR/C/MWI/CO/1 (2011) 9; Guinea CCPR/C/GIN/CO/3 (2018) 23; Sudan CCPR/C/ SDN/CO/5 (2018) 19. See also Mauritania CCPR/C/MRT/CO/1 (2013) 10.

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when they are victims of domestic violence, which may prevent them seeking assistance.126 Unmarried mothers between 16 and 18 years old who were victims of domestic violence sometimes had no right to stay in shelters owing to their status as unaccompanied minors.127 Other Personal Laws Although involving some overlap with the previous heading, in relation to property women have suffered discrimination in the rules governing rights of succession with respect to land permits and grants, and the disposal of immovable property,128 and in the appropriation of property from widows.129 Particularly persistent has been discrimination in personal status laws affecting marriage, family and inheritance.130 Public Life The under-representation of women in senior positions in the public service, in political life, the judiciary and other sectors is discussed in detail in the chapter on Article 25.131 Minorities The Committee established in Lovelace v. Canada that Article 27 must be construed and applied in the light of the other provisions, notably Articles 2(1), 3 and 26, against a background in which legislation intended to protect tribal identity meant that an Indian man who married a non-Indian woman would not lose his Indian status but an Indian women who married a nonIndian would.132

126 Switzerland CCPR/C/CHE/CO/3 (2009) 11 (legislation could prevent victims from leaving abusive relationships and from seeking assistance); Switzerland CCPR/C/CHE/ CO/4 (2017) 26 (in order to retain their residence permits if they reported domestic violence, migrant women had to prove they were subjected to intense and systematic violence). 127 Macedonia CCPR/C/MKD/CO/3 (2015) 10. 128 Sri Lanka CCPR/C/LKA/CO/5 (2014) 7. See also Chile CCPR/C/CHL/CO/6 (2014) 12 (matri monial community property regime). 129 Malawi CCPR/C/MWI/CO/1 (2011) 8. See also Kenya CCPR/C/KEN/CO/3 (2012) 7, for disparity between the property interests of widows and widowers. 130 See also Syria CCPR/CO/71/SYR (2001) 18; Sudan CCPR/C/SDN/CO/3 (2007) 13; Iran CCPR/C/IRN/CO/3 (2011) 9; Yemen CCPR/C/YEM/CO/5 (2012) 10; Burundi CCPR/C/ BDI/CO/2 (2014) 11. 131 See chapter on Article 25: Democratic Rights and Participation in Public Life, Without Article 2(1) Distinctions. 132 Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981 [15] [17].

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I M P L E M E N TAT I O N The Committee continues to press outstanding declarations on Article 3. It has repeatedly found to be incompatible with the object and purpose of the Covenant Kuwait’s interpretative declaration on Articles 2(1) and 3, to the effect that the rights to which those Articles refer must be exercised within the limits set by Kuwaiti law.133 Liechtenstein’s declaration was directed at interpreting Article 3 to avoid any impediment to the constitutional rules on hereditary succession.134 As already noted, Article 3 implementation requires affirmative action, special or other effective measures, which have already touched on throughout this chapter. This is particularly marked in the areas of the wage gap and in employment particularly in senior decision-making positions (in both the public and private sectors), in political life and the judiciary. Stringent legislative and practical measures are also needed to protect women effectually against violence, especially domestic violence and marital rape.

C O N C L US I O N Article 3 overlaps with Article 2(1) insofar as it concerns discrimination based on ‘sex’, though the key differences are that Article 3 is framed in terms of an ‘equal right’ (rather than discrimination), and refers to the enjoyment of Covenant rights between ‘men and women’. Because much of the role of Article 3 is protective, in the sense of requiring measures to protect women against inequalities in the law, and in society, numerous situations are capable of concurrently engaging Articles 3 and 26. The Committee has shown a strong preference for findings of violation under Article 26 when those under Article 3 might be available, but there appears to be an adjustment in favour of Article 3 in recent times, particularly in Purna Maya v. Nepal and in Ribeiro v. Mexico in the light of the discriminatory purpose of the attacks in question. Given their nature and brutality there was little need for detail in support of an Article 3 finding. Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius was resolved under a common basis of Articles 2(1), 3 and 26 that the legislation which was discriminatory with respect to Mauritian women could not be justified by a security requirement. It predated those decisions in 1987 under Article 26 by which it became clearly established that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26.135 Such principles equally apply under 133 Kuwait CCPR/C/KWT/CO/3 (2016) 8. 134 Liechtenstein CCPR/C/LIE/CO/2 (2017) 13. 135 See chapter on Article 26: Equality before the Law Equal Protection of the Law, sections ‘Without Discrimination (Reasonable and Objective Criteria)’, ‘Early Development’.

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Article 3, as demonstrated most recently in Seyma Türkan v. Turkey when the State offered no explanation of how the restriction was based on reasonable and objective criteria, in pursuit of an aim that was legitimate under the Covenant.136 That case also demonstrates the operation of the principles of indirect discrimination which are also common to Articles 2(1) and 26.

136 Türkan v. Turkey, CCPR/C/123/D/2274/2013, 17 July 2018 [7.8].

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Article 4: Derogation in Times of Officially Proclaimed Public Emergency Threatening the Life of the Nation

INTRODUCTION ARTICLE 4(1): CUMULATIVE PRECONDITIONS FOR PERMISSIBLE DEROGATION ARTICLE 4(2): NON-DEROGABLE RIGHTS AND FREEDOMS ARTICLE 4(3): ACCOUNTABILITY TO OTHER STATES PARTIES IMPLEMENTATION CONCLUSION

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Covenant Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Comparable Provisions in Other International Instruments European Convention: Article 15. American Convention on Human Rights: Article 27. African Charter on Human and Peoples’ Rights: no counterpart.

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INTRODUCTION Article 4 plays a crucial role in moments of national turmoil when a State is required to answer an emergency by derogating temporarily from particular Covenant rights. Derogation is a temporary expedient, of last resort, to meet an exceptional national threat, where the permissive scope of limitations ordinarily available to allow restriction would be insufficient. Derogation differs from the limitation of rights in that it entails the suspension of the affected Covenant obligation.1 Until a particular Covenant provision becomes the subject of derogation under Article 4 its terms of limitation continue to operate as the only permissible source of restriction.2 The predominant objective of a State derogating from the Covenant should be restoration of ‘a state of normalcy’, meaning full respect for the Covenant is secured.3 The suspension of Covenant rights by any one State triggers the concern both of the Committee and, as a matter of treaty obligation, all other Contracting States. Reliance on Article 4 is therefore subjected to accountability and scrutiny through the notification obligation in Article 4(3), with the intention that all derogation be both justified and minimised, in extent and time. Any State actuating Article 4(1) must notify immediately other States Parties of the reasons for doing so, identifying the affected Covenant provisions, and must advise them when such derogation ends. The public emergency then becomes a priority in the Article 40 reporting process, it may become the subject of inter-State communications, and where it results in violation individual communications under OP1 may ensue, including by reason of not satisfying the conditions for derogation in Article 4(1). The reason for such international scrutiny is that history attests to the assertion of emergency situations by undemocratic regimes to suspend crucial constitutional protections when they are most urgently needed. It is in such circumstances that political opponents are often subjected to disappearance, unlawful and prolonged detention, prosecution under vague laws, in unfair trials, in an environment which suppresses free speech, association and assembly. By contrast, emergency 1 On the difference between derogation and limitation, where derogation is constituted by complete or partial elimination as an international obligation, see Dominic McGoldrick, ‘The Interface Between Public Emergency Powers and International Law’, (2004) 2(2) Int. J. Const. L., p. 380, at pp. 383 5. For usage of Art. 4 in practice with particular emphasis on terrorism, see Angelika Siehr, ‘Derogation Measures under Article 4 ICCPR, with Special Consideration of the War against International Terrorism’, (2004) 47 GYIL, p. 545. 2 The right of derogation and limitation share a number of fundamental characteristics, namely, the confined circumstances in which they may be invoked (in the case of Art. 4 a ‘public emergency’, ‘officially proclaimed’, ‘which threatens the life of the nation’), the stringency applied to the concession granted (in the case of Art. 4 ‘to the extent strictly required by the exigencies of the situation’), and the prohibition against discrimination in the manner applied. Even in the extreme circumstances contemplated by Art. 4, the principles of necessity and proportionality of restric tions apply with rigour. Some rights are immune from derogation, under Art. 4(2). 3 General Comment No. 29: Article 4 (Derogations during a State of Emergency), 31 August 2001, CCPR/C/21/Rev.1/Add.11 (GC 29) [1].

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powers, properly invoked, may be legitimate and necessary, for example, to prevent the overthrow of democratic institutions, or to allow States flexibility to respond to emergencies such as epidemic, natural or industrial catastrophe. Article 4 plays a key role in helping to preserve the rule of law and ensure that any decision to declare a state of emergency is reviewable before national courts. Crucial to the effectiveness of Article 4 is therefore ex ante compliance, by implementation which results in domestic law which embodies the safeguards set out in Article 4. Article 4 must be construed in the light particularly of Article 5, which rules out any interpretation of the Covenant (including Article 4) that would imply a right to ‘engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized [in the Covenant] or at their limitation to a greater extent than is provided for in [the Covenant]’. Joan Hartman more broadly suggests that Article 4 ‘must be read in context with the Covenant’s fundamental commitment to democratic governance, particularly Articles 1, 2, 5 and 25’.4 The principles by which Article 4 may be invoked were outlined in the Committee’s General Comment 5 of 1981, which was revised extensively in 2001 in General Comment 29,5 with the benefit of the elaboration in 1984 of the principles of limitation and derogation in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, compiled by a colloquium of thirty-one distinguished experts in international law.6 The Siracusa Principles still represent influential guidelines on derogation.7

A RT I C L E 4 ( 1 ) : C U M U L ATI V E PR E C O N D I T I O N S FOR PERMISSIBL E DE ROGATION Article 4(1) achieves much in a single sentence. It describes the circumstances in which derogating measures may be taken (a ‘public emergency which threatens 4 Joan Hartman, ‘Working Paper for the Committee of Experts on the Article 4 Derogation Provision’, (1985) 7(1) Hum. Rts Q., p. 89, at p. 91. Note Salgar de Montejo v. Colombia, Communication No. 64/1979, CCPR/C/OP/1 at 127 (1985), 24 March 1982 [7.2] (the impugned decree was issued because of the social situation created by the activities of subversive organisa tions which were disturbing public order with a view to undermining the democratic system in force in Colombia); Algeria A/47/40 (1992) 268 (Committee questioning about how a recent attempt by anti democratic forces to use the democratic process to come to power was viewed by the Algerian authorities in the context of Art. 5). 5 General Comment No. 5: Article 4 (Derogations), 31 July 1981, replaced by GC 29 in 2001. 6 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4. 7 For wider reading, see Evan Criddle (ed.), Human Rights in Emergencies (Cambridge University Press, 2016); Joan Fitzpatrick, Human Rights in Crisis: the International System for Protecting Rights During States of Emergency (University of Pennsylvania Press, 1994); Jaime Oraá, Human Rights in States of Emergency in International Law, Oxford Monographs in International Law (Clarendon Press, 1992).

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the life of the nation’); establishes the precondition of official proclamation; strictly circumscribes the extent of permitted derogation (‘the extent strictly required by the exigencies of the situation’, entailing limits which affect duration, the rights which may be suspended and the manner in which this occurs); and it applies two provisos, that those measures not be inconsistent with that State’s other obligations under international law, and they must not involve discrimination solely on specified grounds. A Public Emergency which Threatens the Life of the Nation During the drafting of Article 4 the need for such a clause was questioned, since the concepts of ‘national security’ and ‘public order’ already featuring in a number of provisions would take care of situations which might arise in time of war or national emergency, and those specific limitations had the advantage of appearing only in the draft articles in which they had been considered indispensable. The concern was that a general clause might be used to justify more farreaching limitations.8 The prevailing view was that it was necessary to envisage conditions of emergency, but the main concern then became to provide for derogation in the kind of public emergency which would not be open to abuse. The public emergency should be of such a magnitude as to threaten the life of the nation as a whole. It was also intended that natural disasters should be covered.9 Although one of the most important public emergencies was the outbreak of war, it was felt (somewhat chimerically) that the Covenant should not envisage, even by implication, the possibility of war, as the United Nations was established with the object of preventing war.10 It is nevertheless clear that war may, and commonly does, constitute a qualifying public emergency which threatens the life of the nation,11 and war and internal strife account for many situations proclaimed under Article 4(1). One drafting suggestion in the Commission on Human Rights (which was not carried) was to refer to ‘the interests of the people’, to prohibit governments from acting contrary to the interests and welfare of the people, but the formula reached after many alternative suggestions and proposals was a ‘public emergency’ when ‘the life of the nation’ is threatened. This would avoid any doubt as to whether the intention was to refer to all or some of the people.12 In the Third Committee there 8 A/2929, Ch.V, (1955), p. 23 [36]. 9 A/2929, Ch.V, (1955) p. 23 [39]. 10 A/2929, Ch.V, (1955) p. 23 [39]. Article 15 of the European Convention and Art. 27 of the American Convention both refer to war. See Francesco Seatzu, ‘On the Interpretation of Derogation Provisions in Regional Human Rights Treaties in the Light of Non Binding Sources of International Humanitarian Law’, (2011) 4 IAEHR, p. 3. 11 See, e.g., GC 29 [3]; A/5655 (1963), p. 12 [53] (one Third Committee representative pointed out that, since ‘public emergency’ must be understood to include a state of war, lawful acts of war could not be regarded as being barred even though the article dealing with the right to life was not subject to derogation in times of emergency). 12 A/2929, Ch.V, (1955) p. 23 [38], [40].

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was agreement that emergency provisions of the kind foreseen in Article 4 were required to enable a State to overcome a serious crisis, but they should not allow the imposition of unjustified restrictions on the rights of the individual.13 General Comment 29 notes that ‘[n]ot every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation’, but it gives as examples ‘armed conflict, whether international or noninternational’, and ‘natural catastrophe’ or ‘a major industrial accident’, if all the Article 4 justifications are met.14 The Siracusa Principles describe a ‘threat to the life of the nation’ as one that affects the whole of the population and either the whole or part of the territory of the State, and threatens the physical integrity of the population, the political independence or the territorial integrity of the State, or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.15 Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogation, nor can economic difficulties per se.16 The emergency may itself be geographically confined since, as Thomas Buergenthal observes, to suggest otherwise would prevent a State from declaring a public emergency in one of its remote provinces where a large-scale armed insurrection was in progress, merely because it appeared that the conflict would not spread to other provinces.17 Instances of geographically isolated sources of emergency include Northern Ireland (affecting both Ireland and the United Kingdom), Bolivia and Peru,18 among others. The Existence of the Public Emergency must be Officially Proclaimed The requirement that a state of emergency be officially proclaimed is essential for the maintenance of the principles of legality and rule of law at times when they are vital.19 When derogating from a Covenant provision States must act 13 A/5655 (1963), p. 11 [47]. 14 GC 29 [3], [5]. 15 Siracusa Principle 39. 16 Siracusa Principles 40 and 41. For an evaluation of the treatment of economic crises under Art. 4, see Hartman, ‘Working Paper’, at pp. 94 5 (economic underdevelopment was not envisioned as a basis for Art. 4 derogation, but a short term political crisis which results from economic causes might be the basis for permissible derogation, assuming it is severe enough). See also Finland A/ 46/40 1990 113, 114 (under what conditions of economic crisis would the draft State of Defence Act apply and what Articles of the Covenant would be derogated from under that Act; ‘economic crisis’ referred to such situations as the total breakdown of the energy supply or similar catastrophes which would threaten the existence of society, and which the authorities could not cope with under normal powers). 17 Buergenthal, ‘State Obligations and Permissible Derogations’, p. 72, at p. 80. 18 E.g., UK A/34/40 (1979) 236; Peru A/38/40 (1983) 257; Bolivia A/44/40 (1989) 435 (the state of siege in Bolivia was a limited emergency regime, as it did not apply throughout the country). 19 On the importance of the rule of law in a public emergency, see also Siracusa Principles 64 65 (the rule of law shall still prevail; the derogating State has the burden of justifying its actions under law; the Covenant subordinates all procedures to the basic objectives of human rights).

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within constitutional and other provisions of law. The Siracusa Principles specify that the procedures under national law for the proclamation of a state of emergency shall be prescribed in advance of the emergency.20 The Committee monitors those laws to ensure they meet the requirements of Article 4, as a matter of implementation, and are capable of achieving compliance with Article 4 when invoked.21 This is why it is especially important that States include in their Article 40 reports information about their law and practice concerning emergency powers.22 The need to proclaim the public emergency officially in order to rely on it was considered essential in the Commission on Human Rights, to prevent States from derogating arbitrarily or where not warranted by events. In most countries a public emergency could be declared only under conditions defined by law, and that guarantee would be lost unless a requirement of public proclamation was maintained. Constitutional legal limits on governmental powers during an emergency, and limits on the use of executive power, should be preserved.23 Because derogation ‘was a matter of the gravest concern’ States Parties had the right to be notified of it (the view was put that it might be dangerous to allow non-parties the opportunity to express opinions on how obligations were being fulfilled under the Covenant). The UN should also be notified, to allow publication by the Secretary-General, ‘because of the importance of the matter’. In the light of past abuse of emergency powers, notification was not enough without the derogating State explaining the reason for actuating the powers (without necessarily including every detail of each particular measure taken).24 The ultimate text did not take up the suggestion that information must be submitted to the Committee (or another suitable authority) on all the circumstances which led to the suspension of a Covenant provision, to allow it to decide immediately whether the derogation was legitimate or not.

20 Siracusa Principle 43. Siracusa Principle 55 also suggests that the national constitution and laws governing states of emergency shall provide for prompt and periodic independent review by the legislature of the necessity for derogation measures. 21 GC 29 [2]. 22 The Consolidated Guidelines for State Reports under the ICCPR, CCPR/C/66/GUI/Rev.2, A/56/ 40, Vol. I, Annex III (2000) were designed to enable the Committee and States parties to obtain a complete picture of the situation in each State as regards the implementation. For examples of mention of States’ failure to refer to Art. 4 in their reports see, e.g., Sweden A/33/40 (1978) 72 (the report contained no information on what legal measures could be taken during a period of emergency); Chile A/39/40 (1984) 437 (regret that the information provided on the enjoyment of human rights and the impact of the state of emergency was still insufficient, and stressed that the request for a supplementary report was still valid and should be complied with); Korea A/39/40 (1984) 373; San Marino A/45/40 (1990) 434; Suriname CCPR/CO/80/SUR (2004) 9 (regret that information requested on the domestic application of Art. 4 not provided, including factors considered ‘a threat to the life of the nation’ justifying derogation); Libya CCPR/C/LBY/CO/4 (2007) 12 (regret at the lack of information regarding the safeguards provided by Art. 4). 23 A/2929, Ch.V, (1955) p. 23 [41]. 24 A/2929, Ch.V, (1955) p. 24 [47].

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In the Third Committee there was much discussion on whether the emergency should be ‘officially’ or, in order to ensure compliance with domestic constitutional provisions, ‘legally’ proclaimed. The former prevailed because a measure could be ‘legal’ and still not be in accordance with the Constitution, and because of the undesirability of allowing other States to judge the legality of domestic acts. Also, the government of a country affected by the emergency should be left to decide for itself when such a situation existed, and since it was in the interest of the public that law and order be preserved, it should be allowed a certain latitude in its judgement.25 As Nowak explains, the essential significance of official proclamation lies in the requirement of public notice vis-à-vis the affected population, who should know the exact extent of applicable emergency measures and their impact on the exercise of human rights.26 In Concluding Observations the Committee stresses the necessity for a State to make official proclamation in accordance with Article 4(1) in order to be able to rely on Article 4.27 However, notification to other States under Article 4(3) is not such a precondition.28 Derogation is Permitted only to the Extent Strictly Required by the Exigencies of the Situation Each derogating measure must be confined to that ‘strictly required by the exigencies of the situation’. It is described by the Committee as a principle of proportionality common to derogation and limitation powers.29 It means there must be independent, realistic justification of the specific measures against those exigencies. A careful analysis is needed of each Covenant provision affected, including its limitation terms to determine whether they would suffice, instead of relying on Article 4. It entails detailed consideration of the extent and impact of

25 A/5655 (1963), pp. 11 12 [48] [49]. 26 Nowak, CCPR Commentary, p. 92. 27 E.g., Senegal A/48/40 (1993) 102 (a declaration should have been made in accordance with Art. 4 regarding the limitations on freedom of movement imposed under the recently declared state of emergency); Mexico CCPR/C/79/Add.32 (1994) 6 (strongly deplored events in Chiapas which resulted in violations of Arts 6, 7 and 9; noting that, since a state of emergency was not declared the authorities restricted rights, particularly in Arts 9 and 12 without respecting their guarantees); Mexico CCPR/C/79/Add.109 (1999) 12 (although a state of emergency had not been proclaimed in areas of conflict, the population had suffered derogations from rights corresponding to a state of emergency, such as control points that impeded freedom of movement; all necessary deroga tions from the rights guaranteed by the Covenant must comply with the conditions laid down in Art. 4). 28 See section ‘Article 4(3): Accountability to Other States’, below. 29 For a summary of the disciplines that apply when invoking terms of limitation, see chapter Introduction, section ‘The Centrality of the Scope, Limitations and Qualifications and Mandated Provisions’, above; for their cumulative development across General Comments, see chapter on Article 19: Freedom of Expression, section ‘Necessity and Proportionality’.

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each measure concerned, its duration, as well as the scope (including geographical reach). The assessment requires good faith.30 The Siracusa Principles, which inspired much of the content of General Comment 29, describe what is ‘strictly required’ in more detail: The severity, duration, and geographic scope of any derogation measure shall be such only as are strictly necessary to deal with the threat to the life of the nation and are proportionate to its nature and extent . . . The competent national authorities shall be under a duty to assess individually the necessity of any derogation measure taken or proposed to deal with the specific dangers posed by the emergency . . . A measure is not strictly required by the exigencies of the situation where ordinary measures permissible under the specific limitations clauses of the Covenant would be adequate to deal with the threat to the life of the nation . . . The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.31

The strict requirements of Article 4(1) have also been underscored in OP1 decisions. In Salgar de Montejo v. Colombia the nexus was lacking between the restrictive measure under Article 14(5), as the author was denied the right to have her conviction reviewed by a higher tribunal, and the exigencies of the situation during a state of siege. She was the director of a Colombian newspaper and had been sentenced for allegedly having sold a gun. The government declared in its Article 4(3) notification that ‘temporary measures have been adopted that have the effect of limiting the application of article 19, paragraph 2, and article 21 of that Covenant’ yet, as the Committee observed, there was nothing to show how Article 14(5) was derogated from in accordance with Article 4.32 At a turbulent time in the Congo, when the judiciary appeared to be under the control of the executive, Articles 25(c), 14(1), 9 and 2(1) were violated because the authors in Busyo et al. v. Congo and sixty-eight judges were dismissed as a result of various official commissions which showed them to be immoral, corrupt, deserters or incompetent. They were blocked from contesting the legality of their dismissals, and their efforts at appeal were repeatedly frustrated, added to which various coercive measures were used to prevent them from pressing their claims. The Committee could not accept that the circumstances on which their dismissal was justified fell within Article 4. The relevant decree dismissing a total of 315 judges and public prosecutors merely referred to specific circumstances 30 GC 29 [4] [6]. Siracusa Principle 62 stresses the importance of good faith based on an objective assessment of the situation in order to determine to what extent, if any, it poses a threat to the life of the nation. A proclamation of a public emergency, and consequent derogations from Covenant obligations that are not made in good faith, are violations of international law. 31 Siracusa Principles 51 54. 32 Salgar de Montejo v. Colombia, Communication No. 64/1979, CCPR/C/OP/1 at 127 (1985), 24 March 1982 [10.2] [10.3]. Also on similar point Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/37/40) at 137 (1982), 31 March 1982 [12.2].

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(the reports by the commissions) without specifying the nature and extent of derogations from the rights provided for in domestic legislation and in the Covenant, and without demonstrating that these derogations were strictly required and how long they were to last.33 When relying on Article 4(1) in defence of an OP1 claim the State must provide a sufficiently detailed account of the relevant facts, to enable an assessment whether a situation qualifying for derogation under Article 4(1) existed. Silva et al. v. Uruguay concerned an Article 25 claim resulting from the denial to all citizens who had stood as candidates for certain political groups in the 1966 and 1971 elections of any political right, for a period of fifteen years, including the right to vote. Those groups were also declared illegal. The government’s note to the Secretary-General was confined to stating that the existence of the emergency situation was ‘a matter of universal knowledge’ without then, or subsequently, making any attempt to indicate the nature and the scope of the derogations actually resorted to, or to show that such derogations were strictly necessary.34 Even assuming there was a situation of emergency in Uruguay the Committee was unable to see what ground could be adduced to support the argument that, in order to restore peace and order, it was necessary to deprive all citizens of the affected political groups of any political right for a period as long as fifteen years. It was a measure that did not distinguish whether they sought to promote political opinions by peaceful means, or by violence or the advocacy of violence. The government failed to show that the prohibition of any kind of political dissent was required in order to deal with the alleged emergency situation and pave the way back to political freedom.35 While not criticising the substance of the Committee’s decision that Article 25 had been violated, Anna-Lena Svensson McCarthy rightly points out the Committee’s error in this case of referring to the ‘sovereign right’ of States to declare a state of emergency, when this is in the nature of a ‘conditional right’ which is carefully circumscribed.36 In its merits decisions the Committee often raises the question of whether restrictive measures could for any reason be justified under the Covenant in the circumstances and it moves fairly swiftly to its findings of violation where the State has not made any submissions of fact or law to justify

33 Busyo et al. v. Congo, CCPR/C/78/D/933/2000, 31 July 2003 [5.2]. 34 Silva et al. v. Uruguay, Communication No. 34/1978, CCPR/C/OP/1 at 65 (1984), 8 April 1981 [8.3] [8.4]. 35 Ibid., [8.4], [9]. 36 Anna Lena Svensson McCarthy, The International Law of Human Rights and States of Exception: With Special Reference to the Travaux Preparatoires and the Case Law of the International Monitoring Organs (Martinus Nijhoff, 1998), pp. 235 6, commenting on Silva et al.

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derogation,37 or where the claim concerned issues under non-derogable provisions.38 The Committee’s review of State reports identifies a number of recurring concerns for compliance with the various components of Article 4(1). When a state of emergency has existed the Committee has questioned whether it was duly proclaimed,39 and whether domestic power existed for it;40 it has expressed concern that a state of emergency was declared too frequently, or on grounds that were too broad,41 it has asked which rights were derogated 37 E.g., Motta v. Uruguay, Communication No. 11/1977, CCPR/C/OP/1 at 54 (1984), 29 July 1980 [15] (the government referred to provisions of Uruguayan law, including the ‘prompt security measures’). See also Touron v. Uruguay, Communication No. R.7/32, Supp. No. 40 (A/36/40) at 120 (1981), 31 March 1981 [10]. 38 E.g., Lanza de Netto v. Uruguay, Communication No. 8/1977, CCPR/C/OP/1 at 45 (1984), 3 April 1980 [15] (violation of Arts 7, 10(1), 9(1), 9(3), 9(4) (because the authors were unable effectively to challenge their arrest and detention); 14(1), (2) and (3) (no effective access to legal assistance, not brought to trial within a reasonable time, and could not enjoy the safeguards of fair trial); Ramirez v. Uruguay, Communication No. R. 1/4, Supp. No. 40 (A/35/40) at 121 (1980), 23 July 1980 [18] (violation of Arts 7 and 10(1), 9(1), 9(4) (no recourse to habeas corpus), and 14(3) (no access to legal assistance); Weisz v. Uruguay, Communication No. 28/1978, CCPR/C/ OP/1 at 57 (1984), 29 October 1980 [14] (violation of Arts 7, 10(1), 9(3), 9(4) (no recourse to habeas corpus), 14(1) (no fair and public hearing), 14(3) (no access to legal assistance and not tried in his presence), 15(1) (penal law applied retroactively), 19(2) and 25); Carballal v. Uruguay, Communication No. 33/1978, CCPR/C/OP/1 at 63 (1984), 27 March 1981 [11] (violation of Arts 7, 10(1), 9(1), 9(2), 9(3), 9(4) (no recourse to habeas corpus), and 14(3) (barred him from access to legal assistance); Soriano de Bouton v. Uruguay, Communication No. 37/ 1978, CCPR/C/OP/1 at 72 (1984), 27 March 1981 [12] (violation of Arts 7, 10(1), 9(1), 9(3) and 9(4) (no recourse to habeas corpus); Pietraroia v. Uruguay, Communication No. 44/1979, CCPR/C/OP/1 at 76 (1984), 27 March 1981 [14] (violation of Arts 9(2), 9(3), 9(4) (no recourse to habeas corpus), 10(1), 14(1) (no fair and public hearing), 14(3) (no access to legal assistance or trial in his presence), 15(1) (the penal law was applied retroactively), 19(2) and 25; Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981 [11.6] (violation of Arts 7, 9(1), 9(3), 14(3)(d) (forced to accept legal counsel), 14(3)(g) (compelled to incriminate himself), 22(1) in conjunction 19(1) and (2)). 39 E.g., Ecuador A/43/40 (1988) 321 (how it had been proclaimed, what had caused it, whether the government had informed the other States Parties and what changes had occurred during the emergency); France A/43/40 (1988) 370 (had the derogation in respect of Polynesia been reported, why derogation was needed and what was the current situation, whether a state of emergency had been proclaimed in New Caledonia in 1985 and in Wallis and Futuna, and if so, whether Art. 4(3) had been complied with. See also Russian Federation CCPR/C/79/Add.54 (1995) 27 (in the Committee’s view Art. 4 was applicable to the situation in Chechnya, where the use of weapons by combatants led to the loss of life and deprivation of freedom of large numbers of persons, regardless of the fact that a state of emergency has not been formally declared). 40 E.g., Afghanistan A/40/40 (1985) 596 (had the state of emergency been legalised, which authority was empowered to declare a state of emergency); Togo A/44/40 (1989) 240 (in what circumstances was the president of the Republic empowered to proclaim a state of emergency; and why, in implementing the emergency measures taken following the attempted coup of 1986, the government had not made the notification provided for in Art. 4). 41 E.g., Peru A/38/40 (1983) 263 (how did the Peruvian Government justify the suspension of political rights in the case of natural disaster and what exactly did the government mean by ‘perverse delinquency’ as justification for the proclamation of one of the states of emergency); Ecuador A/47/40 (1992) 261 (among concerns not fully allayed were those relating to conditions for declaring a state of emergency); Colombia CCPR/C/79/Add.76 (1997) 25 (concern that resort

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from,42 whether this was strictly required,43 and whether the use of emergency powers was contrary to domestic law;44 it has enquired about powers available to review the state of emergency and expressed concern that courts do not have the power to examine the legality of the declaration of emergency and of the different measures taken during the state of emergency;45 it has enquired about the effective continuation of access to judicial authority, and about the independence of the judiciary in emergency situations;46 it has

42 43

44 45

46

to declarations of states of emergency was still frequent and seldom in conformity with Art. 4(1), i.e., only when the life and existence of the nation is threatened); Guatemala /C/GTM/CO/3 (2012) 12 (concern at the frequency with which it declared states of emergency under the Public Order Act when they should be considered as an exceptional measure); Peru CCPR/C/PER/CO/5 (2013) 15 (concern at the frequency of declared states of emergency, even in relation to social protests, when derogations should occur only in truly exceptional situations). E.g., Syria A/34/40 (1979) 293; Sri Lanka A/39/40 (1984) 104; Jordan A/46/40 (1991) 577; Sri Lanka A/46/40 (1991) 456; Syria CCPR/CO/84/SYR (2005) 6; Thailand CO/84/THA (2005) 13; Peru CCPR/C/PER/CO/5 (2013) 15. E.g., El Salvador A/39/40 (1984) 78 (emergency decree had the effect of prolonging pre trial detention, it provided for a secret investigation procedure, it denied the right of the accused to examine the witnesses against them, the establishment of military tribunals carried investigative procedures to such extent as to violate basic human rights); Israel CCPR/C/79/Add.93 (1998) 11 (deep concern at the continued state of emergency with the recommendation that the government review the necessity for its continued renewal and with a view to limiting as far as possible its scope and territorial applicability and the associated derogation of rights); Croatia CCPR/CO/71/ HRV (2001) 9 (measures of derogation were not restricted to those strictly required by the exigencies of the situation); Guatemala CCPR/CO/72/GTM (2001) 11 (the possibility of sus pending Art. 5 of the Constitution during states of exception did not appear to be compatible with the Covenant, since it suspended in general terms the right to do what the law did not prohibit and the right not to be compelled to obey illegal orders). E.g., Croatia CCPR/CO/71/HRV (2001) 9 (concern that the presidential power to issue decrees in ‘the event of a state of war or an immediate threat to the independence and unity of the State’, had been used in a manner that would seem to circumvent relevant restrictions in the Constitution). E.g., Cyprus A/34/40 (1979) 375 (to what extent had the judiciary pronounced on the de facto emergency situation in Cyprus); Colombia A/47/40 (1992) 356 (whether the circumstances in which a state of emergency might be declared could be challenged before the Supreme Court); Sri Lanka CCPR/C/79/Add.56 (1995) 13 (concern that courts did not have the power to examine the legality of the declaration of emergency and of the different measures taken during the state of emergency); Colombia CCPR/C/79/Add.76 (1997) 38 (constitutional and legal provisions should ensure that compliance with Art. 4 can be monitored by the courts). Note also France entered a reservation on Art. 4(1) to the effect that the term ‘to the extent strictly required by the exigencies of the situation’ could not limit the power of the president to take the ‘measures required by circumstances’, with the aim of excluding independent international control of the necessity of the declaration and of the measures taken by the president for further discussion, see Nowak, CCPR Commentary, pp. 108 9. E.g., Syria A/34/40 (1979) 294 (members sought detailed information on the extent to which, and manner in which, judicial institutions were functioning in the Republic); Chile A/40/40 (1985) 55 (how judicial independence could be effective when remedies against certain special measures adopted by the executive could not be sought from judicial authorities but only from the executive); Poland A/42/40 (1987) 59 (were any of the powers existing under the state of martial law transferred elsewhere, e.g., to the judiciary or the police, when martial law was lifted); Bolivia A/44/40 (1989) 421 (information sought on the procedures used by emergency courts, such as the military courts, and on their conformity with the provisions of the Covenant); Poland A/47/40 (1992) 137 (clar ification requested as to the powers of the police and the military in a state of emergency

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questioned States about whether a state of emergency was unduly prolonged;47 and about the continued existence of emergency restrictions after an emergency has been lifted.48 On the matter of remedies, it has questioned whether remedies were available, including to victims of violation of Covenant rights during a state of emergency,49 with particular concern for suspension of habeas corpus and amparo proceedings,50 and it has asked about the investigation and prosecution of those responsible.51 Remedies are especially important given the obligation to ensure an effective remedy under Article 2(3), which is considered to be in the nature of a non-derogable obligation.52

47

48

49

50 51

52

and whether Polish authorities were considering shifting the authority to order detention during a state of emergency away from the local police to a court); Egypt A/48/40 (1993) 670 (whether the independence of the judiciary continued to be effective in the context of the state of emergency); Colombia CCPR/C/79/Add.76 (1997) 23 (deep concern at propo sals for conceding functions of the judicial police to military authorities). See also Libya A/ 33/40 (1978) 59 (questioning whether emergency courts dealt with political crimes). E.g., Chile A/34/40 (1979) 78; Egypt A/39/40 (1984) 295; Chile A/39/40 (1984) 449; El Salvador A/42/40 (1987) 157; Colombia A/43/40 (1988) 544; Togo A/44/40 (1989) 240; Cameroon A/44/40 (1989) 461; Egypt A/48/40 (1993) 690, 704, 706; India CCPR/C/79/ Add.81 (1997) 19; Lebanon CCPR/C/79/Add.78 (1997)11; Syria CCPR/CO/71/SYR (2001) 6; Algeria CCPR/C/DZA/CO/3 (2007) 14; Israel CCPR/C/ISR/CO/4 (2014) 10. Cf. Lebanon A/38/ 40 (1983) 345 (better to proclaim a state of emergency, which had a limited duration, in order to take certain measures, rather than to adopt restrictions in the absence of such declaration and thereby have them continue indefinitely). E.g., Chile A/45/40 (1990) 176 (whether any restrictions had been placed on the rights of persons returning from exile, whether measures would remain in force, whether the cases of persons expelled would be reviewed); Sri Lanka CCPR/C/LKA/CO/5 (2014) 11 (concern that, notwith standing the lifting of the emergency regulations, provisions similar to that of the emergency regulations continue to be applied). E.g., Egypt A/39/40 (1984) 295 (what remedies were available to an individual to counter adverse decisions under the state of emergency and to what court appeal could be made); Cameroon A/44/40 (1989) 461 (what remedies were available to citizens who considered that they were victims of an arbitrary or unjust act during a state of emergency); India A/46/40 (1991) 267 (what safeguards and effective remedies were available to individuals during a state of emergency); Jordan A/46/40 (1991) 577 (what remedies were available to Jordanian citizens in the courts when the state of emergency was in force); Gabon CCPR/C/79/Add.71 (1996) 10 and Gabon CCPR/CO/70/GAB (2000) 10 (concern about the lack of safeguards and effective remedies available to individuals during a state of emergency); Syria CCPR/CO/71/SYR (2001) 7 (concern that relevant legislation did not provide remedies against measures limiting citizens fundamental rights and freedoms). E.g., Chile A/34/40 (1979) 79, 80 and Chile A/39/40 (1984) 450; Dominican Republic A/40/40 (1985) 389; El Salvador A/42/40 (1987) 157; Dominican Republic A/45/40 (1990) 359; Peru CCPR/C/79/Add.8 (1992) 9. E.g., Sri Lanka CCPR/C/79/Add.56 (1995) 30 (urged vigorous investigation of all violations of human rights through an independent agency, to punish those guilty of such acts and to compensate the victims); Venezuela CCPR/C/79/Add.13 (1992) 7 (disturbed by the failure to take sufficient steps to punish those found guilty of violations); Peru CCPR/C/PER/CO/5 (2013) 15 (recommendation that reports of serious human rights violations committed during the states of emergency be promptly and effectively investigated, and those responsible be brought to justice). GC 29 [14].

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The rights which have most often attracted the Committee’s attention in emergency situations are those under Article 1,53 Article 9,54 Article 12,55 Articles 17, 18 and 19,56 Articles 19, 21 and 22,57 and Article 25.58 Derogating Measures must be Consistent with the State’s Obligations under International Law Derogating measures must be consistent with the State’s obligations under international law. This requirement has parallels with Article 5(2), which preserves the higher human rights standards of domestic law, in keeping with the principle that the Covenant itself only establishes minimum standards.59 Article 4(1) preserves a State’s international commitments by not permitting derogation which would result in those being breached. For the purposes of Article 4(1) the term ‘obligations under international law’ embraces obligations under a treaty or under customary international law, to

53 E.g., Nicaragua A/38/40 (1983) 225 (questioning why it was necessary to derogate from Art. 1 during the state of emergency and whether there was a basis for thinking that the decision to derogate had been taken with particular persons or groups of persons in mind). 54 E.g., Chile A/34/40 (1979) 80 (detention by the president of the junta or the security services); Chile A/39/40 (1984) 451 (detention ‘at places which are neither prisons nor centres of detention or imprisonment of common criminals’); El Salvador A/39/40 (1984) 78 (emergency decree contained a series of provisions having the effect of prolonging pre trial detention); Gambia A/ 39/40 (1984) 329 (detention of political prisoners during the state of emergency who had not yet been brought to trial); Thailand CCPR/CO/84/THA (2005) 13 (detention beyond 48 hours without external safeguards should be prohibited (Art. 4)). 55 E.g., Nicaragua A/38/40 (1983) 232 (what justification was there was for the transfer and relocation of several thousand Miskito Indians; whether it was the future policy of the government to authorise them to return to their homes after the state of emergency); Chile A/34/40 (1979) 78 (was the government continuing, without any objective justification, to apply measures intended for excep tional conditions of internal unrest, referring to the president’s powers to expel Chilean citizens or prevent them from re entering Chile); Israel CCPR/CO/78/ISR (2003) 19 (restrictions on freedom of movement, e.g., through curfews or an inordinate number of roadblocks, and the construction of the ‘Seam Zone’, which had adverse repercussions on nearly all walks of Palestinian life). 56 E.g., Algeria A/47/40 (1992) 273 (information requested on restrictions on freedom of opinion and expression and freedom of the press, particularly during the states of emergency). 57 E.g., Algeria A/47/40 (1992) 274 (whether the National People’s Assembly had been allowed to meet during recent states of emergency and whether any restrictions had been placed on freedom of association, the right to strike and the right to hold public meetings during those states of emergency); Israel CCPR/CO/78/ISR (2003) 12 (sweeping nature of measures that appear to derogate from Arts 12, 19 and 21); Ecuador CCPR/C/ECU/CO/5 (2009) 10; Chad CCPR/C/ TCD/CO/1 (2009) 18, 29 (concern that states of emergency were used to control and censor the free press). 58 Algeria A/47/40 (1992) 294, 299 (Algerian authorities considered it appropriate to prevent forces that they considered hostile to democracy from taking advantage of democratic procedure in order to harm democracy, and proclaimed two states of emergency and interrupted the electoral process; Committee recommendation that Algeria put a prompt end to the exceptional situation that prevailed and allow all democratic mechanisms to resume their functioning under fair and free conditions). 59 See chapter on Article 5: Bar on Interpreting the Covenant in Abuse of Rights, section ‘Article 5(2)’.

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include: the UN Charter principle that war is recognised only in case of selfdefence or for other reasons consonant with the Charter;60 obligations under humanitarian law treaties, which are particularly important in times of conflict to protect those no longer engaged in hostilities;61 obligations reflecting the fundamental standards of humanity, of particular relevance when addressing situations of internal violence;62 and obligations under treaties which do not include the right of derogation in emergency situations, such as the Convention on the Rights of the Child.63 The Committee maintains a keen interest in compliance with parallel treaty requirements, as a matter of compliance with Article 4, and it expects information on such compliance when invoking Article 4(1) and when reporting under Article 40.64 The result of this requirement is that where the derogating measure constitutes a breach of a State’s obligation of customary international law, or under a parallel treaty (whether as a result of that treaty not including emergency powers of derogation or by virtue of the operation of stricter terms of limitation under that treaty), that State is not entitled to rely on Article 4(1) of the Covenant. Derogating Measures must not Involve Discrimination Solely on the Ground of Race, Colour, Sex, Language, Religion or Social Origin The requirement that derogating measures not involve discrimination was not contentious, although some debate focused on the word ‘solely’. Those supporting its inclusion argued that a State might take derogating measures that particularly affected those of a certain race, religion, etc., but the mischief which the text intended to address was discrimination based solely, that is, intentionally, in 60 A/2929, Ch.V, (1955) p. 24 [43]. 61 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, and Protocol Additional to it relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. 62 See, e.g., Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo Finland, 2 December 1990; Commission on Human Rights Resolution 1995/29, Minimum Humanitarian Standards, 3 March 1995, E/CN.4/RES/1995/29. See also Paris Minimum Standards of Human Rights Norms in a State of Emergency (International Law Association, 1984), discussed in detail in Subrata Roy Chowdhury, Rule of Law in a State of Emergency: the Paris Minimum Standards of Human Rights Norms in a State of Emergency, vol. 4 (Pinter, 1989). 63 Convention on the Rights of the Child, 20 November 1989, UNTS vol. 1577, p. 3, General Assembly Resolution 44/25 of 20 November 1989, entered into force 2 September 1990, Art. 38. See also Israel CCPR/CO/78/ISR (2003) 11, Israel CCPR/C/ISR/CO/3 (2010) 5 and Israel CCPR/C/ISR/CO/4 (2014) 5 (noting Israel’s position that the Covenant does not apply beyond its own territory (West Bank and in Gaza) as long as there is a situation of armed conflict; the Committee reiterated that the applicability of the regime of international humanitarian law during an armed conflict does not preclude the application of the Covenant, including Art. 4, nor does it preclude accountability of States Parties under Art. 2(1) for the actions of their authorities outside their own territories). 64 GC 29 [10].

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a targeted way, on particular grounds.65 (Thomas Buergenthal gives the example of legitimate measures taken in a part of a country whose inhabitants belong to a religious minority, which would not be excluded merely because they affected that group.66) Not all of the grounds set out in Article 2 of the Universal Declaration were considered appropriate for this purpose (the general nondiscrimination provision), since ‘legitimate restriction’ might in some cases be imposed on certain categories.67 The result was that the only prohibited grounds of discrimination under Article 4(1) are ‘race, colour, sex, language, religion and social origin’ (i.e., not ‘political or other opinion’, ‘national origin’, ‘property’, ‘birth’ or ‘other status’). The issue has attracted Committee attention in its review of country reports, for example, when it appeared that protection in emergency legislation applied only to citizens and permanent residents, or where derogating measures may otherwise involve discrimination.68 It recommended that Australia redesign the Northern Territory Emergency Response measures adopted in reaction to the findings of an inquiry into the Protection of Aboriginal Children from Sexual Abuse in the Northern Territory (‘Little Children are Sacred’) because of the negative impact on the enjoyment of the rights of indigenous peoples and suspended operation of racial discrimination legislation.69 The Committee has also pointed out where relevant legislation failed to mention that any permitted derogations had to be non-discriminatory.70 The Committee has described the interrelation of this provision with the Covenant’s other provisions on non-discrimination as follows:

65 In this context note the reservation of the United States that it understood this aspect of Art. 4(1) not to bar distinctions that may have a disproportionate effect on persons of a particular status, and the accompanying explanation in its first report, at USA CCPR/C/81/Add.4 (1994), 127. 66 Buergenthal, ‘State Obligations and Permissible Derogations’, at p. 83. 67 A/2929, Ch.V, (1955), p. 24 [44]. 68 E.g., Barbados A/36/40 (1981) 154 (Committee members wondered whether, under the Constitution, emergency provisions allowed for distinctions to be made on some prohibited grounds); Jamaica A/36/40 (1981) 260 (some members pointed out that some provisions of the Constitution read together could be interpreted as to permit discrimination contrary to Art. 4); Canada A/46/40 (1991) 56, 57 (the protections in its new Emergencies legislation appeared to be restricted to Canadian citizens and permanent residents; the explanation was that it prohibited the detention of individuals on the basis of race, nationality or ethnic origin, colour, religion, sex, age or mental or physical disability (it was intended to prevent the repetition of incidents which had occurred during the Second World War when Canadian citizens of Japanese descent had been detained solely on the ground of their ethnic origin)); Grenada CCPR/C/GRD/CO/1 (2009) 8 (questioning on the way Grenada ensured that derogating measures did not involve discrimina tion in light of the State’s assessment that inconsistencies between Art. 4 and the constitution, allowing for derogations to the right not to be discriminated against on the basis of race, colour, sex, language, religion and social origin, did not have any practical effect as emergency measures must in all cases be reasonably justifiable). See also Guyana A/37/40 (1982) 255; Chile A/39/40 (1984) 450; Hungary A/48/40 (1993) 622. 69 Australia /C/AUS/CO/5 (2009) 14. 70 Canada A/35/40 (1980) 196.

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Even though article 26 or the other Covenant provisions related to nondiscrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.71

A RT I C L E 4 ( 2 ) : N O N- D E R O G A B L E R I G H T S AND FREEDOMS In the Third Committee there was agreement on the principle that certain basic rights of the individual should not be subject to derogation even in times of emergency, but discussion continued on which they should be. Some suggested the right to marry in what became Article 23 should be on the non-derogable list, on the basis that this involved matters of a strictly private nature, while those resisting it pointed out that in many countries marriage of a national to an alien bestowed the right to citizenship on the alien, which in war time may oblige a State to ban such marriages. The proposal to allow derogation from the right in Article 18(3) (to manifest religion or belief) did not succeed when it was pointed out that the permissible limitations in that provision were already broad enough and it would be undesirable to give States a blanket authority to restrict that right further.72 The resulting list of non-derogable rights is more extensive than under Article 15 of the European Convention (which is confined to the right to life, and the prohibitions against torture, against slavery, and punishment without law), but is more modest than under the American Convention, which additionally treats as non-derogable the rights of the family, the right to a name, the rights of the child, the right to nationality, and the right to participate in government.73 Article 4(2) in part acknowledges the peremptory nature of some rights and freedoms, but on that criterion it is not comprehensive since, as the Committee points out, peremptory norms of international law and humanitarian law prohibit hostage-taking, collective punishment, arbitrary deprivation of liberty, nonobservance of certain fundamental fair trial principles, and crimes against humanity.74 Others are included by virtue of the lack of the necessity for derogation from them in a state of emergency (e.g., Articles 11 and 18).75

71 GC 29 [8]. 72 A/5655 (1963), p. 12 [51] [52]. 73 European Convention Art. 15(2) and American Convention Art. 27(2). 74 GC 29 [11] [13]. For the definition of crimes against humanity, see the Rome Statute of the International Criminal Court, Art. 7. For detailed listing of non derogable and derogable provi sions see Siracusa Principles 67 70. 75 GC 29 [11].

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It was fatal to the State’s purported reliance on the existence of a state of siege in Suarez de Guerrero v. Colombia that the claims concerned violation of Articles 6 and 7 which were non-derogable under Article 4(2).76 In addition to concerns over inadequacy in implementation (discussed below) the Committee has frequently questioned States or expressed its concern in Concluding Observations about non-derogable rights being (or capable of being) derogated from during live situations of emergency,77 including those affecting Article 6,78 Article 7,79 Articles 6 and7,80 Articles 6 and 9;81 Articles 7 and 16;82 Article 18;83 Articles 19 and 21;84 and Articles 7, 9, 14 and 19 (accepting that Articles 9 and 14 are not on the non-derogable list).85

76 Maria Fanny Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/ 37/40) at 137 (1982), 31 March 1982 [12.2], [13.2]. See also Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981 [11.6] (some of the facts raise issues under provisions from which the Covenant does not allow any derogation under any circumstances, coupled with a finding of violation of Art. 7); Borda et al. v. Colombia, Communication No. 46/1979, CCPR/C/OP/1 at 139 (1985), 27 July 1982 [13.2]. 77 Syria A/34/40 (1979) 293; Algeria A/47/40 (1994) (1992) 299; Nepal CCPR/C/79/Add.42 (1994) 9; Israel CCPR/C/79/Add.93 (1998) 11. 78 Syria A/34/40 (1979) 294 (noting that States tended to resort more easily to the death penalty in emergency situations); Algeria A/47/40 (1992) 270 (clarification sought of the procedure for granting pardon from execution under the current state of emergency); Jamaica CCPR/C/JAM/ CO/3 (2011) 16 (concern at reports of excessive use of force by law enforcement personnel during the state of emergency when seventy three civilians were killed); Guinea CCPR/C/GIN/ CO/3 (2018) 13 (lack of protection for certain rights which cannot be derogated from, in particular the right to life). Note also that the prohibition against execution in the Second Optional Protocol, directed at the abolition of the death penalty, is non derogable: Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 15 December 1989, A/RES/44/128, entered into force 11 July 1991, Art. 6. 79 Chile A/34/40 (1979) 80 (citing the report of the Ad Hoc Working Group in relation to cases of torture and ill treatment, some members sought information on the measures taken to investigate and punish violations in such cases and whether victims obtained redress and the guilty were punished); Algeria A/47/40 (1992) 271 (what measures had been taken to ensure respect for Art. 7, particularly during the states of emergency); Israel CCPR/C/ISR/CO/3 (2010) 11 (complaints of torture were either denied factually or justified under the ‘defence of necessity’ as ‘ticking time bomb’ cases; recommendation to completely remove the notion of ‘necessity’ as a possible justification for the crime of torture). 80 Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 10 (concern at failure to take measures to protect the right to life and prohibition of torture (Arts 4, 6 and 7)). 81 Chile A/34/40 (1979) 79 (inadequate protection of the right to life and to liberty and security of person). 82 Israel CCPR/C/79/Add.93 (1998) 21 (application of administrative detention incompatible with Arts 7 and 16, neither of which allows for derogation in times of public emergency). 83 El Salvador A/42/40 (1987) 166 (one member wished to know what possible justification there could have been for restricting freedom of opinion during the state of emergency). 84 Guinea CCPR/C/GIN/CO/3 (2018) 13 (allegations of disproportionate restrictions on freedom of expression and freedom of peaceful assembly during states of siege and emergency). 85 Serbia and Montenegro CCPR/CO/81/SEMO (2004) 13 (concern at the measures taken under the state of emergency, which included substantial derogations; regret that several concerns remain particularly with regard to allegations of torture of detainees in the context of ‘Operation Sabre’ (Arts 4, 7, 9, 14, 19)).

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Even though Articles 9, 10 and 14 are ostensibly susceptible to derogation, certain aspects of them are treated by the Committee as non-derogable. The right to a fair trial in Article 14 and the right in Article 9(4) to challenge the lawfulness of detention are both needed to support non-derogable rights, exemplified by the form of detention on security grounds in Israel of Lebanese who were kept as ‘bargaining chips’ in order to strengthen a negotiating position, which impacted their non-derogable rights under Articles 7 and 16.86 The remedies provided in Article 9(3) and (4), read in conjunction with Article 2 are ‘inherent to the Covenant as a whole’.87 In some circumstances restrictions on access to counsel and on the disclosure of full reasons for detention, which limit the effectiveness of judicial review, derogate from Article 9 more extensively than is permitted under Article 4.88 As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, no justification exists for their derogation during other emergency situations.89 The Committee’s position is that the Article 4 safeguards are based on the principles of legality and the rule of law, inherent in the Covenant as a whole, and those principles require that fundamental requirements of fair trial must be respected during a state of emergency.90 Concluding Observations abound in references to the principle that the right to habeas corpus and amparo should not be limited in situations of emergency.91 General Comment 29 states that prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law.92 In the Committee’s assessment of the claim in Giri et al. v. Nepal it recalled that treating persons deprived of their liberty with humanity and with respect for their dignity, as required by Article 10(1), is a fundamental and universally applicable rule, and that while it is not separately mentioned in the list of non-derogable rights in Article 4(2) this norm of general international law is not subject to derogation.93 On one interpretation 86 Israel CCPR/C/79/Add.93 (1998) 21. 87 A/49/40, Vol.1 (1994) [23] (Committee’s Annual Report to the General Assembly (Organizational and other matters)). 88 Israel CCPR/CO/78/ISR (2003) 12. See also Israel CCPR/C/ISR/CO/3 (2010) 7 and Israel CCPR/C/ISR/CO/4 (2014) 10. 89 GC 29 [16]. 90 GC 29 [16]. 91 Drawing on experience under the American and European Conventions, Clement Olivier argues for the inalienability of the right to a fair trial guarantee necessary to the effective enjoyment of all human rights, in ‘Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair Trials and Derogations in Times of Public Emergency’, (2004) 17 LJIL, p. 405. 92 GC 29 [13(b)]. 93 Giri et al. v. Nepal, CCPR/C/101/D/1761/2008, 24 March 2011 [7.9]. Note also the ICJ’s comment in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, pp. 639, 671 [87]: ‘There is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general

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the Committee may be taken to have enlarged the range of non-derogable provisions in Article 4(2); a more conservative view is that these developments may simply reflect the general principle that restrictions of these provisions would never be ‘strictly required’. Reservations to Article 4(2) are generally impermissible as being incompatible with the object and purpose of the Covenant.94

A RT I C L E 4 ( 3 ) : A C C O U N TA B I L I T Y TO OT H E R STAT ES PA RTI ES When relying on the right of derogation a State must ‘immediately’ inform other States Parties, through the Secretary-General, of the provisions from which it has derogated and of the reasons ‘by which it was actuated’. This latter phrase goes, as a matter of compliance, to the underlying justification for measures and whether they are of an extent ‘strictly required by the exigencies of the situation’. The derogating State must also notify further measures under Article 4 immediately, including any time extension of existing measures. On the date it terminates such derogation it must also notify that fact.95 (Article 4(3) contrasts with the counterpart obligation under Article 15 of the European Convention, which does not require ‘immediate’ notification.) The right to take derogating measures does not depend on a formal notification being made under Article 4(3), unlike the proclamation of a state of emergency under Article 4(1), but failure to do so may prevent a State relying on Article 4 when responding to an OP1 claim.96 The Committee expects the notification to include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding the law invoked.97

94 95

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international law which are binding on States in all circumstances, even apart from any treaty commitments.’ See reservation of Trinidad and Tobago purporting to reserve the right not to apply in full the provisions of Art. 4(2) and discussion by McGoldrick, Human Rights Committee, p. 306. See GC 29 [17]. This is also consistent with Siracusa Principle 48 that a party availing itself of Art. 4(1) must terminate derogation in the shortest time required to bring to an end the public emergency. Principle 50 mentions that a review of the continuing consequences of derogation measures shall be made as soon as possible. Silva et al. v. Uruguay, Communication No. 34/1978, CCPR/C/OP/1 at 65 (1984), 8 April 1981 [8.2] [8.3]. See also Salgar de Montejo v. Colombia, Communication No. 64/1979, CCPR/C/ OP/1 at 127 (1985), 24 March 1982 [10.2] [10.3] to similar effect. Svensson McCarthy argues that the implication of the Committee’s decision in Salgar de Montejo is that the Art. 4(3) notification cannot be relied on to avoid legal obligations normally incurred under Covenant provisions which are not mentioned in the derogation notice: Svensson McCarthy, The International Law of Human Rights and States of Exception, p. 238. GC 29 [17]. Cf. Siracusa Principle 45 which lists among relevant information: the affected provisions of the Covenant; a copy of the proclamation; empowering constitutional provisions; legislation or decrees (to assist in appreciating the scope of derogation); the effective date and period for which the state of emergency has been proclaimed; an explanation of the reasons

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In reviewing State reports the Committee has frequently sought information about compliance with Article 4(3) and has questioned whether they notified other States when availing themselves of the right of derogation (with adverse comment if they did not).98

I M P L E M E N TAT I O N The importance of domestic law compliance with Article 4 has already been discussed, in its support for principles of legality and rule of law. For example, it enables legal challenges to be mounted against the misuse of emergency powers. Obligations of implementation demand domestic law that meets the stipulations of Article 4, as well as compliance with that law when a qualifying public emergency arises. The terms of Article 4 are pre-emptive, as well as responsive. They are designed to conform with other Covenant provisions and international obligations. By requiring a public emergency to be proclaimed, and other States Parties to be informed, the situation receives scrutiny from the international community. Remedies are required for those adversely affected by the measures not justified under Article 4.99 The Committee’s attention when examining State reports has therefore been on whether domestic provisions secure conformity with Article 4, whether as a whole or as to particular elements. It has questioned States generally about the content of legislation, with a view to bringing about full compliance with the terms of Article 4.100 It has questioned and commented on the circumstances actuating the decision to derogate, including the factual circumstances leading up to it; and a description of the anticipated effect on affected Covenant rights. 98 E.g., Syria A/34/40 (1979) 293; Jamaica A/36/40 (1981) 260; Jordan A/37/40 (1982) 173; Lebanon A/38/40 (1983) 345; El Salvador A/39/40 (1984) 75; Sri Lanka A/39/40 (1984) 104; El Salvador A/ 42/40 (1987) 157; Ecuador A/43/40 (1988) 321; Cameroon A/44/40 (1989) 461; Togo A/44/40 (1989) 240; Panama A/46/40 (1991) 424; Sudan A/46/40 (1991) 496; Algeria A/47/40 (1992) 268; Ireland CCPR/C/79/Add.21 (1993) 11; Cameroon CCPR/C/79/Add.33 (1994) 7; Zambia CCPR/C/ 79/Add.62 (1996) 11; Lebanon CCPR/C/79/Add.78 (1997) 10; Guatemala CCPR/CO/72/GTM (2001) 11; Azerbaijan CCPR/CO/73/AZE (2001) 8; Syria CCPR/CO/84/SYR (2005) 6; Grenada CCPR/C/GRD/CO/1 (2009) 8; Liberia CCPR/C/LBR/CO/1 (2018) 12. 99 On remedies for those suffering injustice during or in consequence of derogation, see Siracusa Principle 50. 100 E.g., Spain A/34/40 (1979) 186 (as the terms of the Constitution on states of emergency were broader in scope than Art. 4 the Committee questioned the extent to which the two could be reconciled); San Marino A/45/40 (1990) 434 (what legal provisions would be applicable); Morocco A/46/40 (1991) 241 (questioning over the compatibility with Art. 4 of legal and constitutional provisions); Korea A/47/40 (1992) 478 (clarification of legal provisions relating to a public emergency and their conformity with the Covenant); Estonia CCPR/C/79/Add.59 (1995) 16 (no legislation yet adopted in conformity with the requirements of Art. 4); Liechtenstein CCPR/CO/81/LIE (2004) 6 (lack of a requirement in the law to proclaim a state of emergency); Madagascar CCPR/C/MDG/CO/3 (2007) 13 (regret that the regime for a state of emergency does not specify the derogations that can be made to the Covenant and does not define the guarantees relative to the implementation of such derogations); Armenia CCPR/

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under which a public emergency may be invoked,101 the observance of appropriate limits to the duration of states of emergency,102 the powers available to review the declaration of a state of emergency and derogating measures taken,103 the range of rights capable of being affected,104 the limits within

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C/ARM/CO/2 (2012) 11 (recommendation to ensure that legislation and regulations concerning states of emergency fully comply with Art. 4); Lao CCPR/C/LAO/CO/1 (2018) 11 (existing regulations governing states of emergency did not define the permissible derogations and restrictions nor did they explicitly prohibit derogations from non derogable provisions); Jamaica CCPR/C/JAM/CO/4 (2016) 27 (legislation on states of emergency did not meet the standards of Art. 4). E.g., Norway A/33/40 (1978) 231; Sweden A/35/40 (1980) 86 (‘in the interest of the national economy’, better translated as ‘in order to provide for the needs of the people’ in the eventuality of war or some other emergency); Congo A/42/40 (1987) 229; Tunisia A/42/40 (1987) 114 (possible to apply the emergency measures ‘flexibly’ and in a manner ‘more symbolic than real’); Cameroon A/44/40 (1989) 461; Morocco A/46/40 (1991) 241; Dominican Republic CCPR/C/79/Add.18 (1993) 4 (grounds for declaring a state of emergency too broad, and the range of rights that may be derogated from too wide); Tanzania CCPR/C/79/Add.12 (1992) 7 (grounds too broad and extraordinary powers too sweeping); Azerbaijan CCPR/C/79/Add.38 (1994) 7; Lebanon CCPR/C/79/Add.78 (1997) 10 (circumstances excessively broad and may be used to restrict the exercise of basic rights in an unjustifiable manner); Colombia CCPR/C/79/ Add.76 (1997) 23; Colombia CCPR/C/79/Add.76 (1997) 25 (may suspend any laws considered to be incompatible with the state of disturbance); Uruguay CCPR/C/79/Add.90 (1998) 8 (grounds for declaring too broad); Guatemala CCPR/CO/72/GTM (2001) 11 (wide variety of possible states of emergency listed); Croatia CCPR/CO/71/HRV (2001) 9 (grounds for deroga tion broader than the ‘threat to the life of the nation’); Yemen CCPR/CO/75/YEM (2002) 14 (lack of clarity); Chad CCPR/C/TCD/CO/1 (2009) 18 (lack of clarity); Russian Federation CCPR/C/RUS/CO/6 (2009) 7 (review counter terrorism law); Uruguay CCPR/C/URY/CO/5 (2013) 6 (basis for declaring state of emergency too broad); Suriname CCPR/C/SUR/CO/3 (2015) 17 (circumstances too broad and the law did not specify the rights that may not be restricted or suspended); Guatemala CCPR/C/GTM/CO/4 (2018) 38 (excessive use of states of emergency as a social control mechanism); Lebanon CCPR/C/LBN/CO/3 (2018) 9 (circum stances excessively broad); Swaziland CCPR/C/SWZ/CO/1 (2017) 16 (grounds not satisfying the standard of threatening the life of the nation). E.g., Tunisia A/45/40 (1990) 508; Morocco A/46/40 (1991) 241; Colombia CCPR/C/79/Add.76 (1997) 23 (constitutional reform aimed at suppressing time limits on states of emergency). E.g., Sweden A/33/40 (1978) 72 (questioning on the control exercised by parliament as opposed to executive prerogative); Congo A/42/40 (1987) 229 (enquiry about the monitoring powers held by the People’s National Assembly concerning the duration of the state of emergency or state of siege); Cameroon A/44/40 (1989) 461 (enquiring to what extent both the proclamation of the state of emergency and the enforcement measures taken could be subjected to legislative or judicial control or supervision); Morocco A/46/40 (1991) 241 (whether the judiciary or legislature could counterbalance the king’s decision to declare a state of emergency); Colombia CCPR/C/79/Add.76 (1997) 23, 38 (constitutional and legal provisions should ensure that compliance with Art. 4 can be monitored by the courts). E.g., Jordan A/37/40 (1982) 173 (under the Constitution the application of all the provisions of the Covenant could be suspended since the king was authorised to take any measures he deemed necessary); Morocco A/37/40 (1982) 139 (the king was empowered, when a state of emergency was declared, to take such measures as might be necessary for the defence of the territorial integrity of the State and there did not seem to be any limit to that power); Philippines A/44/40 (1989) 319 (clarification sought of which specific rights could be suspended); Uruguay CCPR/ C/79/Add.90 (1998) 8 (the range of rights which may be derogated from did not conform with Art. 4(2)); Guatemala CCPR/CO/72/GTM (2001) 11 (suspensions in general terms of the right of the individual to do what the law does not prohibit and not to be compelled to obey illegal orders); Uruguay CCPR/C/79/Add.90 (1998) 8 (failure to make reference to non derogable

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domestic law on the availability of particular proceedings such as amparo or habeas corpus,105 and it has endeavoured to ensure that the protection in legislation applicable in situations of emergency is applied in a nondiscriminatory way.106 The Committee has been particularly careful to ensure conformity of domestic law with Article 4(2),107 identifying instances where domestic law does not prevent derogation of rights where this is prohibited by Article 4(2),108 and has recommended the review of legislation and remedial measures to ensure clarity in that respect.109 Out of concern for implementation of rights which are not in the non-derogable list in Article 4(2), and which are derogable within the limits already discussed, the Committee has similarly questioned States on conformity of legislation with Article 4,110 identifying areas of non-conformity,111 and recommending review and remedial measures.112

C O N C L US I O N Article 4 stands out for being dedicated solely to the scope permitted to the State to derogate. It is not a limitation provision, and indeed is distinguished by the need to resort to it only after limitation provisions have proved insufficient, and by its operation in suspending affected rights. The need for strict observance of Article 4

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rights); Suriname CCPR/C/SUR/CO/3 (2015) 17 (the law did not specify the rights that may not be restricted or suspended). E.g., Dominican Republic A/40/40 (1985) 389; Congo A/42/40 (1987) 229; Colombia CCPR/ CO/80/COL (2004) 10. See section ‘Derogating Measures must not Involve Discrimination’, above. E.g., Italy A/36/40 (1981) 114; Barbados A/36/40 (1981) 154; Iceland A/38/40 (1983) 105; Japan A/43/40 (1988) 596; Cameroon A/44/40 (1989) 461; Zaire A/45/40 (1990) 550; India A/ 46/40 (1991) 268; Armenia CCPR/C/79/Add.100 (1998) 7. E.g., Canada A/40/40 (1985) 196; Mauritius A/44/40 (1989) 499; India A/46/40 (1991) 267; Dominican Republic CCPR/C/79/Add.18 (1993) 4; Ecuador CCPR/C/79/Add.92 (1998) 15; Zambia CCPR/C/ZMB/CO/3 (2007) 15; Bolivia CCPR/C/BOL/CO/3 (2013) 6; Lebanon CCPR/C/LBN/CO/3 (2018) 9; Madagascar CCPR/C/MDG/CO/4 (2017) 9; Mongolia CCPR/ C/MNG/CO/6 (2017) 15, 16; Morocco CCPR/C/MAR/CO/6 (2016) 7; Swaziland CCPR/C/ SWZ/CO/1 (2017) 16. E.g., Kyrgyzstan CCPR/CO/69/KGZ (2000) 12; Mongolia CCPR/C/79/Add.120 (2000) 14; Madagascar CCPR/C/MDG/CO/3 (2007) 13; Ireland CCPR/C/IRL/CO/3 (2008) 12; Tanzania CCPR/C/TZA/CO/4 (2009) 7; Mongolia CCPR/C/MNG/CO/5 (2011) 11; Uruguay CCPR/C/ URY/CO/5 (2013) 6; Indonesia CCPR/C/IDN/CO/1 (2013) 9. For instances under Art.7, see Canada CCPR/C/CAN/CO/5 (2006) 15; Israel CCPR/C/ISR/CO/4 (2014) 14; under Arts 8, 11, 15 and 16, see Belize CCPR/C/BLZ/CO/1 (2013) 14; and Art. 11, see Indonesia CCPR/C/IDN/ CO/1 (2013) 9. For an example of commendation of remedial legislation for Art. 7, see Belgium CCPR/C/BEL/CO/5 (2010) 4(g). For examples of questioning about Art. 4 compliance in connection with Art. 9, see Gambia A/ 39/40 (1984) 329; Finland A/41/40 1985 173; Ireland A/48/40 (1993) 563, 582; with Art. 12, see Guinea A/43/40 (1988) 252; Colombia A/47/40 (1992) 373. See, e.g., Netherlands A/37/40 (1982) 100 (Art. 21). For instances under Arts 9 and 10, see Albania CCPR/CO/82/ALB 2 (2004) 9; under Arts 19, 21 and 22, see Chad CCPR/C/TCD/CO/1 (2009) 18, 29.

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echoes the emphasis elsewhere in this work on the requirements of implementation in domestic law and compliance through adherence to exacting principles of justification for any restriction of rights. Implementation, importantly, supports the rule of law in advance of any situation of emergency even arising, and it serves the broad interests of the population. It may forestall the undemocratic seizure or consolidation of power even if it cannot guarantee it will never happen. In many situations it will help enable an independent judiciary to examine the legality of any proclaimed emergency, and to review the different measures taken during its continuance. Article 5 may also be relied upon against States interpreting Article 4 too broadly. Although the proclamation and notification provisions of Article 4 procure a degree of State accountability during its administration of an emergency situation in the short term, important longer-term and more reflective review is achieved by the Committee’s Article 40 review process. It yields dialogue in support of the letter of Article 4, generating a clear picture of what States should accomplish by way of implementation, in the hope that they may never need to depend on Article 4.

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Article 5: Bar on Interpreting the Covenant in Abuse of Rights

INTRODUCTION ARTICLE 5(1) ARTICLE 5(2) IMPLEMENTATION CONCLUSION

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Covenant Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent. Comparable Provisions in Other International Instruments European Convention: Articles 17 and 53. American Convention on Human Rights: Article 29(a) and (b). African Charter on Human and Peoples’ Rights: no counterpart.

INTRODUCTION Article 5 establishes important interpretive principles. It also has operative value. Article 5(1) preserves the Covenant against any misinterpretation by those seeking to legitimise the destruction of any Covenant rights of others, or the restriction of those rights to a greater extent than is provided for by the Covenant. The effect is to remove any implication that the Covenant itself provides the justification for such displacement of Covenant rights. It does not impose obligations,1 but it is

1 Markos Karavias, Corporate Obligations Under International Law (Oxford University Press, 2013), pp. 28 9 (the absence of a right does not indicate the establishment of an obligation).

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capable of defeating OP1 petitions, and ousting assertions that the Covenant provides support for the destruction or excessive limitation of rights. Article 5(2) preserves the higher standard of protection for fundamental human rights where it exists in domestic law to a greater extent than is required by the Covenant. The Covenant only establishes minimum standards, and these may not be taken to downgrade municipal protection.

A RT I C L E 5 ( 1 ) Article 5(1) prevents ‘the present Covenant’ (or any Covenant provision) being interpreted or implying ‘any right’ for any State, group or persons to ‘engage in any activity or perform any act’ (which would include the exercise of any Covenant right by an individual, and the State restriction of a right), aimed at the ‘destruction’ of any of the rights and freedoms recognised in the Covenant, or at their ‘limitation’ to a greater extent than the Covenant provides. Although sometimes referred to as a ‘prohibition of misuse’,2 it operates to prevent the Covenant being interpreted as providing warrant to engage in that particular conduct, rather than as a prohibition as such. Article 5(1) may apply against OP1 authors to render inadmissible ratione materiae their claims to be entitled, in reliance of a Covenant right, to engage in any Article 5(1) activity or act; and against the State when resisting OP1 claims, particularly when relying on limitation provisions impermissibly. In general, however, Article 5 would add little to a claim for violation of a substantive Covenant provision in a case involving the excessive limitation of a Covenant right, and there may also be difficulties in proving the relevant ‘aim’ under Article 5(1). Article 5 as a Restraint on the State as well as Individuals and Groups Article 5(1) is derived from Article 30 of the Universal Declaration. The scope originally envisaged for Article 30 was protection against extremist individuals. It was logical to add ‘groups’ as well,3 but much more radical was its extension against ‘State’ activities destructive of declared rights and freedoms.4 The addition of ‘States’ has important ramifications in the State’s restriction of Covenant rights. Drawing parallels with the exercise of 2 See, e.g., Nowak, CCPR Commentary, pp. 112 13. 3 See French proposal for the addition of ‘group’ in the Universal Declaration (A/C.3/SR.155 (1948)), William A. Schabas (ed.), Universal Declaration of Human Rights: the Travaux Préparatoires (Cambridge University Press, 2013) vol. 3, p. 2780 (hereinafter Universal Declaration Travaux). 4 In the Universal Declaration, see E/CN.4/SR.41 (1947) (Australian amendment to the proposal of Lebanon); Schabas, Universal Declaration Travaux, vol. 2, p. 1308; Buergenthal, ‘State Obligations and Permissible Derogations’, p. 72, at pp. 86 7.

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discretionary power under French administrative law, Buergenthal comments that Article 5(1) ‘stipulates, in effect, that rights and powers conferred for one purpose may not be used for another, illegitimate purpose. Viewed in this light, Article 5(1) forms an integral part of all the provisions of the Covenant that authorize derogations, limitations, or restrictions.’5 Article 5(1), therefore, has value independently of individual terms of limitation and non-derogation. If applicable terms of limitation or non-derogation are met, Article 5(1) may have force where an ‘aim’ is directed at the destruction of any Covenant rights and freedoms, or their excessive limitation, which is beyond or ulterior to permissible aims. In the preparation of Article 5 a proposal to delete the reference to ‘State’ failed. It was made out of scepticism at the likelihood that States would go to the trouble of undertaking obligations under the Covenant and then attempt to destroy or limit them impermissibly. Those wishing to retain Article 5(1) against States observed that ‘States were already empowered to limit many rights, for such reasons as the protection of “public order” or “national security” and that they should not be encouraged to restrict further the provisions of the covenants’.6 The Individual Opinions of Christian Tomuschat in López Burgos v. Uruguay and Lilian Celiberti de Casariego v. Uruguay also address the potential for the misuse of limitation clauses to annihilate rights and freedoms: In principle, the scope of application of the Covenant is not susceptible to being extended by reference to article 5, a provision designed to cover instances where formally rules under the Covenant seem to legitimize actions which substantially run counter to its purposes and general spirit. Thus, Governments may never use the limitation clauses supplementing the protected rights and freedoms to such an extent that the very substance of those rights and freedoms would be annihilated: individuals are legally barred from availing themselves of the same rights and freedoms with a view to overthrowing the regime of the rule of law which constitutes the basic philosophy of the Covenant.7

5 Buergenthal, ‘State Obligations and Permissible Derogations’, p. 87. 6 A/2929 (1955), pp. 26 7, [58]. 7 Individual Opinion of Mr Christian Tomuschat in Burgos v. Uruguay, Communication No. R.12/ 52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981, and Celiberti de Casariego v. Uruguay, Communication No. 56/1979, CCPR/C/OP/1 at 92 (1984), 29 July 1981. He considered that the first sentence of paras 10.3 and 12.3, respectively, of those Committee decisions was too broadly framed (‘Article 2(1) of the Covenant places an obligation upon a State party to respect and to ensure rights “to all individuals within its territory and subject to its jurisdiction”, but it does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquies cence of the Government of that State or in opposition to it. In line with [the text of Article 5(1)] it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.’).

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‘Activities’ and ‘Acts’ with a Destructive or Over-Restrictive Aim Article 5(1) only defeats an interpretation of the Covenant which supports a right of the State, group or persons to ‘engage in any activity’ or ‘perform any act’ with a relevantly destructive aim.8 The implication of legitimacy for destructive activities and acts must, for the purposes of Article 5(1), derive from the Covenant. The text of the Covenant addresses not only the scope of rights and freedoms (to which the concept of exercise is most applicable) but also, importantly, their permissible bases and conditions of limitation. Much of the output of the Committee is directed at ensuring that permissive limits are not exceeded (by ‘limitation to a greater extent than is provided for in the . . . Covenant’). The text of Article 5(1) does not confine relevant ‘activity’ or ‘act’ to the abusive ‘exercise’ or ‘enjoyment’ of Covenant rights: such a construction would be inapt to cover State measures, since the State is not the beneficiary of Covenant rights of ‘exercise’ or ‘enjoyment’; and neither the permissible nor impermissible sources of restriction (private or public) are in principle confined to activities and acts constituting any exercise of Covenant rights. One specific purpose of Article 5(1) is to check the growth of nascent Nazi, fascist or other totalitarian ideologies. To the drafters, groups with such tendencies may not invoke the Covenant to justify their activities.9 The relevant ‘activities’ and ‘acts’ within Article 5 could include an attempt by anti-democratic forces to use democratic processes to come to power, which was the subject of the Committee’s questioning of Algeria’s initial report.10 They may include the misuse of a state of emergency for politically destructive ends, as illustrated by Thomas Buergenthal in connection with the former Greek military junta’s suppression of opposition,11 and 8 The addition of the phrase ‘or perform any acts’ after (rather than in substitution of, as proposed by some) ‘engage in any activity’ in the Universal Declaration was successfully proposed by France and the UK to have early, preventive effect (A/C.3/SR.156 (1948), Schabas, Universal Declaration Travaux, vol. 3, pp. 2788 9). 9 A/2929 (1955), p. 26, [55]. In the context of the Universal Declaration, text for what became Art. 30 was proposed by Lebanon with the accompanying rationale that the ‘Declaration granted all kinds of rights to mankind. Persons were opposed to the spirit of the Declaration or who were working to undermine the rights of men should not be given the protection of those rights . . . Its object was to prevent any persons from engaging in any subversive activities which might be in any direct or indirect manner damaging to the rights of man’ (E/CN.4/SR.41 (1947); Schabas, Universal Declaration Travaux, vol. 2, p. 1308. Cf. comment by the Netherlands that ‘it is essential to make clear that a human right may never be exercised in such a way as to destruct any human right of other people’ (E/CN.4/82/Rev.1 (1948), Schabas, Universal Declaration Travaux, vol. 2, p. 1407). 10 Algeria A/47/40 (1992) 268 (concerning recent political developments, members wished to receive necessary additional information on the suspension of the democratic process and the cancellation of the second round of legislative elections, which had occurred at the beginning of 1992, and wished to know how the recent attempt of anti democratic forces to use the democratic process to come to power was viewed by the Algerian authorities in the context of Art. 5). 11 Buergenthal, ‘State Obligations and Permissible Derogations’, pp. 87 8.

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Nowak’s reference to the military junta in Chile constituting the real state of emergency for the Chilean people.12 They may also include the formation of an organisation as a vehicle for terrorism or other human rights repression.13 M.A. v. Italy concerned ‘acts’ of which the author, a right-wing political militant and publicist, was convicted (reorganising the dissolved fascist party), which: were of a kind which are removed from the protection of the Covenant by article 5 thereof and which were in any event justifiably prohibited by Italian law having regard to the limitations and restrictions applicable to the rights in question under the provisions of articles 18(3), 19(3), 22(2) and 25 of the Covenant. In these respects therefore the communication is inadmissible under article 3 of the Optional Protocol, as incompatible with the provisions of the Covenant, ratione materiae.14

In the drafting of Article 5(1) there was some concern for its potential to operate as a restriction on freedom of expression. A proposal to locate it in Article 19, given the close proximity to freedom of speech, failed because it also affected other provisions such as those relating to assembly and association.15 It is clear from the drafting history that Article 5(1) was not intended to restrict the right of criticism, since it related only to the destruction of rights or to their limitation to a greater extent than was provided in the Covenant.16 Its purpose is not to prohibit the open expression of views in public debate or to exclude political parties from their legitimate role.17 The Rights Targeted for Destruction or Excessive Limitation (‘Any Covenant Rights and Freedoms’) To fall within Article 5(1) the relevant ‘activities’ and ‘acts’ must be aimed at the destruction or excessive limitation of any of the rights and freedoms recognised in the Covenant. The Committee could have ruled as inadmissible on a number of grounds the claim in Y.D. v. Russian Federation, but it responded to the Article 5(1) claim by a public servant who was dismissed within the terms of workplace 12 Nowak, CCPR Commentary, p. 114; Chile A/34/40 (1979) 75, 76. 13 For analogous examples under the European Convention, see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], App. Nos 41340/98, 41342/98, 41343/98 and 41344/98, [2003] ECHR 87 (in view of the finding of no violation of Art. 11, Art. 17 was not considered further); Hizb ut Tahrir and Others v. Germany (dec.), App. No. 31098/08 (12 June 2012) (Islamist association advocating the use of violence could not benefit from Art. 11 protection by reason of Art. 17). 14 M.A. v. Italy, Communication No. 117/1981, Supp. No. 40 (A/39/40) at 190 (1984), 10 April 1984 [13.3]. 15 A/2929, (1955), p. 26 [57]. 16 A/2929, (1955), p. 26 [55]. 17 Note in this context Nicaragua A/38/40 (1983) 235 (since Art. 5 recognised that there were limits to political freedoms, one member pointed out that those limits, however, were not intended to be such as to prohibit peaceful expression of views and public debate on public issues, and asked whether the definition of the role of political parties, as it appeared in a draft statute, of making constructive criticism and submitting proposals to the public administration, represented a deliberate exclusion of political parties from any real political role).

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regulations for having committed minor offences incompatible with moral standards required from employees of the relevant ministry, by noting that ‘the right to work is not a right or freedom which is among those protected under the Covenant’.18 Article 5 does not give rise to any separate individual right.19 The Committee explained in H. G. B. and S. P. v. Trinidad and Tobago that, like Article 2, Article 5 is a ‘general undertaking’ by States and ‘cannot be invoked, in isolation’. Because the OP1 claim did not raise potential issues under other Articles of the Covenant it was inadmissible.20

A RT I C L E 5 ( 2 ) Higher Standards of Domestic Protection Preserved by Article 5(2) Article 5(2) embodies the principle by which maximum protection should apply in cases of conflict between the Covenant and domestic human rights provisions,21 otherwise known as the ‘most-favourable-to-individual’ clause.22 It also reflects the principle that the Covenant itself only establishes minimum standards. The Covenant is not to be used as a pretext for denying any more favourable recognition which exists under the domestic law of any State Party than under the Covenant, for fundamental human rights, whether as a result of local law, international convention, regulation or custom. It applies, for example, where certain fundamental human rights ‘recognized or existing’ domestically are not included in the Covenant; or where there is protection domestically for rights and freedoms matching those under the Covenant but with terms of limitation or derogation more favourable to the individual than under the Covenant. The higher standard of protection which exists domestically would not be supported by Article 5(2) where its operation is restrictive of a Covenant right. On the contrary, remedial measures would be required under Article 2(2). Excessively protective defamation laws (safeguarding Article 17 reputational rights) which impact adversely on freedom of expression would be an example.

18 Y.D. v. Russian Federation, CCPR/C/101/D/1521/2006, 25 March 2011 [6.3]. 19 E.g., Levinov v. Belarus, CCPR/C/123/D/2235 & 6/2013, 19 July 2018 [5.5]. 20 H.G.B. and S.P. v. Trinidad and Tobago, Communication No. 268/1987, CCPR/C/37/D/268/ 1987 (1989), 4 December 1987 [6.2]. To similar effect Wackenheim v. France, CCPR/C/75/D/ 854/1999, 15 July 2002 [6.5], adding that ‘this conclusion does not prevent the Committee from taking article 5 into account when interpreting and applying other provisions of the Covenant’. 21 A/2929 (1955), p. 26 [61]. 22 L. B. Sohn, ‘The Human Rights Law of the Charter’, (1977) 12 Tex Int. L.J., p. 129, at p. 137.

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Higher Domestic Standards must Pertain to Fundamental Human Rights Recognised in the Covenant The nature of the Article 5(2) claim in Wackenheim v. France was unclear. The State replied, in its defence of its ban on dwarf tossing, that it was difficult to see in what way the authorities might have unduly restricted rights recognised under French law ‘on the basis of the Covenant’. One possibility concerned ‘an overextended notion of human dignity’, but, it argued, an individual’s right to ‘respect’ as a human being was not one of those covered by the Covenant even though some aspects of it (the ban on inhuman and degrading treatment included) was inspired by that notion. Even if Article 5(2) did apply, it contended that the action taken by the authorities was not prompted by a desire to restrict freedom of employment, trade and industry unduly. In the event, the Committee made its merits decision only under Article 26, finding no violation in the ban.23 No Obligations Assumed by Article 5(2) Article 5(2) obviously does not prevent domestic law conforming in substance to the minimum standards guaranteed by the Covenant, as is common, for example where the Covenant is incorporated into domestic law in substitution of a preexisting human rights order. Article 5(2) simply resists the implication that a lower standard of protection provided for in the Covenant, including by way of the scope of rights or the extent of their permissible limitation, must be reflected in domestic law. Buergenthal also commented, conversely, that Article 5(2) does not mean that the Covenant adopts or assumes any aspect of domestic or international law which is more protective, nor does Article 5(2) require States to be permanently fastened to a higher standard of protection domestically.24 The Covenant simply cannot be interpreted as providing the basis for a lower standard domestically. Nowak further pointed out that Article 5(2) does not preclude a State from eliminating from its national bill of rights a right not found in the Covenant, or even from denouncing particular international treaty obligations.25 A number of Covenant provisions make reference to other international conventions to preserve consistency with them, namely, Articles 6(2) and (3) which mention the Convention on the Prevention and Punishment of the Crime of Genocide, and Article 22(3), which refers to the ILO Convention of 1948 Concerning Freedom of Association and Protection of the Right to Organize. Article 46 also preserves the provisions of the UN Charter and the constitutions of the specialised UN agencies. 23 Wackenheim v. France, CCPR/C/75/D/854/1999, 15 July 2002 [4.5], [7.5]. 24 Buergenthal, ‘State Obligations and Permissible Derogations’, p. 90. 25 Nowak, CCPR Commentary, p. 118.

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I M P L E M E N TAT I O N The Committee has infrequently raised Article 5 in the periodic review process, asserting its operation even if not incorporated into domestic law,26 enquiring how its rules of interpretation may be invoked domestically,27 and correcting misinterpretation by States in their reports.28

C O N C L US I O N Article 5(1) addresses the risk that the Covenant’s terms might be taken as giving warrant to harmful conduct contrary to the express purposes as well as the spirit of the Covenant. Terms of permissible limitation are insufficient to meet this challenge. Potential for harm exists in behaviour with particular destructive aims, and Article 5(1) operates in that dimension differently from terms of limitation. Also, terms of limitation permit State restriction only on the exercise of the rights to which they apply, while Article 5(1) concerns ‘activities’ and ‘acts’ beyond the mere exercise of Covenant rights. Article 5(1) has been used to render certain OP1 claims inadmissible ratione materiae. It therefore has practical implications which should not be underestimated. Article 5(2) is there to prevent States using the Covenant as the cover for conforming domestic law down to the Covenant’s minimum standards. Article 5 is based on the fundamental objectives of the Covenant, including, as the preambular text reminds us, the obligation of States under the UN Charter to promote universal respect for, and observance of, human rights and freedoms. It provides reaffirmation of those rights in a specific form, to preclude misinterpretation of any Covenant provision to validate misuse by acts destructive of Covenant rights or excessive State restriction. Commenting on those provisions which deal with the Covenant’s basic obligations and permissible derogations, Article 5 among them, Buergenthal suggests that few, if any, other provisions have 26 Barbados A/36/40 (1981) 155 (rebutting the statement in the initial report of Barbados to the effect that, since the Covenant was not per se part of the laws of Barbados, the question dealt with in Art. 5 of the Covenant did not arise). 27 Czechoslovakia A/33/40 (1978) 120 (with reference to the statement in the report on Art. 5 that restrictions on any of the rights or freedoms recognised by the Covenant as a result of incorrect interpretation of the Covenant were impossible, the representative was asked whether there existed any means by which an individual contesting the government’s interpretation of the Covenant could have his point of view heard and considered); Canada CCPR A/40/40 (1985) 199 (with reference to Art. 5 one member wondered how the important rule of interpretation contained in that Art. could be invoked in a human rights case in Canada, when the Covenant itself was not applied). 28 Iran A/37/40 (1982) 307 (in connection with Art. 5, reference was made to Art. 14 of the Constitution which provided for respect of the human rights of non Muslims, and stated that its provisions were valid in the case of those who did not engage in any plotting whatsoever against Islam and the Islamic Republic of Iran); Germany A/41/40 (1986) 310 (some members noted that they could not agree with the Federal Republic’s interpretation of Art. 5).

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as pervasive effect on the enjoyment of the rights which the Covenant guarantees. If they ‘are interpreted in a manner that fails to take account of the overall objectives of the Covenant and the protective system it establishes, they will acquire a disproportionately large and unduly restrictive influence on the application of the Covenant and seriously limit the enjoyment of the rights it was designed to guarantee’.29 29 Buergenthal, ‘State Obligations and Permissible Derogations’, pp. 90 1.

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Article 6: The Right to Life

INTRODUCTION ARTICLE 6(1) ARTICLE 6(2)–(6): DEATH PENALTY PROVISIONS RIGHT TO LIFE IN PARTICULAR SETTINGS IMPLEMENTATION CONCLUSION

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Covenant Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this Article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. Comparable Provisions in Other International Instruments European Convention: Article 2. American Convention on Human Rights: Article 4. African Charter on Human and Peoples’ Rights: Article 4.

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INTRODUCTION The right to life is a jus cogens norm, described as ‘the supreme right of the human being’.1 Article 6(1) opens by proclaiming ‘the inherent right to life’ of every human being. The guarantees in the two sentences which follow are that the right to life must be protected by law, and that that no one may be ‘arbitrarily’ deprived of life. The obligation to protect life is the nucleus of Article 6. The text alone does not disclose its full reach, requiring preventative and positive measures to meet certain foreseeable threats to life, and suitable institutional and organisational mechanisms, in a wide range of circumstances. The sources of risk are diverse. In some countries they include armed groups, militias2 or counter-revolutionaries;3 in others, attacks on life are religiously motivated.4 Forced disappearance, extrajudicial, summary or arbitrary executions, and unlawful killings though associated with military or civilian dictatorships are not confined to them.5 The excessive use of force by enforcement officials is a universal issue,6 as is domestic violence.7 Less common is femicide,8 and of escalating concern are the threats to life posed by human trafficking and trafficking in body parts.9 With a broad perspective on the protective requirements of Article 6 the Committee has maintained its concern that States: reduce infant mortality;10 increase life expectancy;11 meet food and 1 Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/37/40) at 137 (1982), 31 March 1982 [13.1]; a principle repeated in numerous Art. 6 cases since, and expressed in CCPR General Comment No. 6: Article 6 (Right to Life), 30 April 1982 (GC 6) [1]; Article 6 (Right to Life) Nuclear Weapons and the Right to Life, 9 November 1984 (GC 14) [1]; General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36, 30 October 2018, advance unedited version (GC 36)) [2]. For an introduction, see Christian Tomuschat, ‘The Right to Life: Legal and Political Foundations’, in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff, 2010), p. 3. Elizabeth Wicks pays particular attention to the interests at issue with different facets of the right to life, including armed conflict, crime prevention, autonomy, quality of life and finite resources, in The Right to Life and Conflicting Interests (Oxford University Press, 2010). 2 Lebanon A/38/40 (1983) 346. 3 Nicaragua A/38/40 (1983) 229. 4 Indonesia CCPR/C/IDN/CO/1 (2013) 17. 5 E.g., Colombia CCPR/CO/80/COL (2004) 11; Brazil CCPR/C/BRA/CO/2 (2005) 12; Congo CCPR/C/COD/CO/3 (2006) 15; Libya CCPR/C/LBY/CO/4 (2007) 14; Central African Republic CCPR/C/CAF/CO/2 (2006) 12; Mozambique CCPR/C/MOZ/CO/1 (2013) 11. 6 See section ‘Excessive Use of Force’, below. 7 See chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Violence against Women, including Domestic Violence’. 8 E.g., Mexico CCPR/C/MEX/CO/5 (2010) 9; Guatemala CCPR/C/GTM/CO/3 (2012) 19; Costa Rica CCPR/C/CRI/CO/6 (2016) 21; Guatemala CCPR/C/GTM/CO/4 (2018) 12. 9 Mozambique CCPR/C/MOZ/CO/1 (2013) 17. 10 E.g., Rwanda A/37/40 (1982) 221; Peru A/38/40 (1983) 264; Sri Lanka A/39/40 (1984) 105; Korea (DPRK) CCPR/CO/72/PRK (2001) 12. For discussion on child mortality in the scheme of human rights protection, see Eibe Riedel, ‘The Right to Life and the Right to Health, in Particular the Obligation to Reduce Child Mortality’, in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff, 2010), p. 351. 11 Korea (DPRK) CCPR/CO/72/PRK (2001) 12.

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nutrition needs;12 address the causes and consequences of drought, epidemics, natural and nuclear disasters;13 improve public health and raise the standard of living;14 protect the civilian population in war zones;15 and combat HIV/AIDS and other threats where prevalent.16 The death penalty occupies the bulk of the text of Article 6, and sends a clear message that the death penalty, though permitted under the Covenant, is strongly discouraged. Pending abolition in any country, it may be imposed in confined cases and on certain preconditions. Interaction between Article 6 and Other Covenant Provisions Articles 6 and 9 are closely related in the overlap between the right to personal security in Article 9(1) and the right to life in cases of death threats or attempts on life. Enforced disappearance poses grave risks to life touching on both the personal security and deprivation of liberty limbs of Article 6, and entails the concurrent violation of numerous other Covenant provisions. Article 7 is engaged in the mental suffering by the relatives of those arbitrarily deprived of life. Articles 7 and 10(1) arise in the treatment of detainees, including conditions of detention which may themselves present a threat to life, for example, through an insanitary environment or unchecked propagation of life-threatening diseases,17 or when prison authorities refuse medical care essential for sustaining life. There are numerous facets to the intersection between Article 6 and the Covenant’s non-discrimination provisions. Articles 3 (gender equality) and 6 apply concurrently to such practices as female infanticide, domestic violence, the burning of widows and dowry killings. Articles 3, 6, 7 (cruel, inhuman or degrading treatment), 17 (privacy, family and home) and 23 (protection for the family) are engaged in situations of unduly restrictive access to abortion services. The discriminatory violation of Article 6 may include the raised incidence of executions in ethnic minority areas,18 the heightened exposure to risk of abduction and disappearance of certain vulnerable minority groups,19 the unequal basis on 12 E.g., Peru A/38/40 (1983) 264; Sri Lanka A/39/40 (1984) 105; Korea (DPRK) CCPR/CO/72/ PRK (2001) 12. 13 Rwanda A/37/40 (1982) 221 (epidemics); Sri Lanka A/39/40 (1984) 105 (children and epi demics); Korea (DPRK) CCPR/CO/72/PRK (2001) 12 (drought); Japan CCPR/C/JPN/CO/6 (2014) 24 (nuclear contamination in Fukushima). 14 E.g., Tanzania A/36/40 (1981) 211 (improving public health in rural areas); Peru A/38/40 (1983) 264. 15 E.g., Uganda CCPR/CO/80/UGA (2004) 12 (internally displaced); Congo CCPR/C/COD/CO/3 (2006) 13 (women and children). 16 E.g., Namibia CCPR/CO/81/NAM (2004) 10 (measures on an appropriate scale to combat HIV/ AIDS). 17 Titiahonjo v. Cameroon, Communication 1186/2003, CCPR/C/91/D/1186/2003, 26 October 2007 [6.2]. 18 E.g., Iran CCPR/C/IRN/CO/3 (2011) 12. 19 E.g., Kosovo CCPR/C/UNK/CO/1 (2006) 13 (ethnic Albanians and 683 non Albanians, includ ing Serbs, Roma, Ashkali and Egyptians, continued to be reported as missing); Canada CCPR/C/

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which a death sentence pardon is available (e.g., depending on whether financial compensation (blood money) is acceptable to the victim’s family),20 the criminalisation of same-sex conduct where it is still a capital offence, as well as lifethreatening incidents of violence on the basis of LGBTI status.21 Obligations of special protection towards children, required by Article 24, are violated most obviously by capital punishment contrary to Article 6(5). Articles 18 and 19 are particularly relevant to Article 6 when extradition or deportation would expose those returned to certain countries to real risk of loss of life, because of their religion (e.g., because they have changed religion), or because of their expression of political opposition. The exercise of freedoms under Articles 19 and 21 also commonly gives rise to Article 6 issues in instances of excessive use of force and extrajudicial killings by the police and the military during protests,22 and in recent times the Committee has frequently referenced the incidence of threats, violent assaults and murder of journalists, human rights defenders and others.23 Chapter Outline This chapter follows the format of the text of Article 6. It provides coverage of the protective obligations on States, and describes the now well-established element

20 21 22 23

CAN/CO/6 (2015) 9 (indigenous women and girls are disproportionately affected by life threatening forms of violence, homicides and disappearances); Norway CCPR/C/NOR/CO/7 (2018) 31 (unaccompanied asylum seeking minors from reception centres). Yemen CCPR/CO/84/YEM (2005) 15 (the right to seek a pardon is not guaranteed for all on an equal footing; noting the preponderant role of the victim’s family in deciding whether or not the penalty is carried out on the basis of financial compensation (‘blood money’)). See chapter on Article 26: Equality before the Law Equal Protection of the Law, sections ‘Grounds of Discrimination’, ‘Sex, Sexual Orientation, Gender Identity, Transgender Status’. E.g., Indonesia CCPR/C/IDN/CO/1 (2013) 16. See also Algeria CCPR/C/DZA/CO/4 (2018) 45 (violent dispersal of public and private gatherings). E.g., Russian Federation CCPR/C/RUS/CO/6 (2009) 16 (threats, violent assaults and murders of journalists, human rights defenders and others, which has created a climate of fear and a chilling effect on the media). See also Colombia CCPR/C/COL/CO/7 (2016) 38 (allegations of intimida tion, threats and/or attacks, including murders, targeting human rights defenders, journalists, trade unionists, judicial officials, lawyers or social or human rights activists); Bangladesh CCPR/ C/BGD/CO/1 (2017) 28 (recommendation to protect from unlawful killings, physical attacks and harassment journalists, bloggers, human rights defenders and civil society organisations); Congo CCPR/C/COD/CO/4 (2017) 40 (harassment, threats or intimidation against journalists, political opponents and human rights defenders); Dominican Republic CCPR/C/DOM/CO/6 (2017) 31 (concern at acts of violence and intimidation to which human rights defenders and journalists were subjected); Honduras CCPR/C/HND/CO/2 (2017) 40 (extreme concern at acts of violence and intimidation and the persistently high murder rates among human rights defenders, journal ists, trade unionists, environmental activists, indigenous persons and LGBTI, committed by State officials and private individuals); Pakistan CCPR/C/PAK/CO/1 (2017) 37 (reports of disappear ance, killing and intimidation of journalists, human rights defenders and lawyers by State and non State actors); Guatemala CCPR/C/GTM/CO/4 (2018) 36 (grave concern at the increase in acts of violence, intimidation, stigmatisation and murder of human rights defenders, journalists and trade unionists against a backdrop of widespread impunity); El Salvador CCPR/C/SLV/CO/7 (2018) 37 (concern at violence and intimidation against human rights defenders and journalists, and the lack of measures to protect them).

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of arbitrariness. The death penalty provisions are considered in turn (Articles 6(2)–(6)). To provide context the right to life is then considered in particular practical settings. The chapter finally addresses issues of implementation.

A RT I C L E 6 ( 1 ) Protection of Life by Law The right to life must be ‘protected by law’.

Grounds for Deprivation of Life must be Prescribed by Law and Defined with Precision The requisite properties of any legal authorisation for the deprivation of life are summarised in General Comment 36. For this the Committee drew on its Article 9 General Comment 35 (and corresponding case law on liberty and security of person), because of the similarity between Article 9(1) and Article 6(1) in the former requiring any deprivation of liberty to be ‘on such grounds and in accordance with such procedure as are established by law’: The duty to protect by law the right to life entails that any substantive ground for deprivation of life must be prescribed by law, and defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.24

Suarez de Guerrero v. Colombia is an early case which involved the police killing of seven suspected kidnappers where an enactment gave sanction to the use of lethal police action in too broad a range of circumstances. The police laid in wait at a house where a former ambassador was (wrongly) believed to be held captive, and shot the suspected kidnappers at intervals at point-blank range as they arrived at the house. The police were exonerated in domestic law by a decree which provided a defence for punishable acts committed in the course of operations directed against extortion, kidnapping and drug-trafficking. After reciting that ‘the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State’, a principle reflected in General Comments 6 and 36,25 and finding that the police action was disproportionate to the 24 General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36, 30 October 2018 (Advance unedited version) (GC 36) [19]. The corresponding text of General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/C/GC/35 (GC) 35 [22] reads: ‘The third sentence of paragraph 1 of Article 9 provides that no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law. Any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.’ 25 General Comment No. 6: Article 6 (Right to Life), 30 April 1982 (GC 6) [3]; applied, e.g., in Umateliev v. Kyrgyzstan, CCPR/C/94/D/1275/2004, 30 October 2008 [9.5].

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requirements of law enforcement in the circumstances, the Committee decided that ‘inasmuch as the police action was made justifiable as a matter of Colombian law by [the authorising decree], the right to life was not adequately protected by the law of Colombia as required by Article 6(1)’.26 In addition to stipulating precision in the relevant law, General Comment 36 insists that ‘States parties must ensure full compliance with all of the relevant legal provisions’,27 reinforcing the need for all safeguards under which lethal force is permitted in suitably drafted domestic law to be met in full. Among the practical measures identified by General Comment 36 to prevent arbitrary deprivation of life by law enforcement officials are: proper planning of enforcement action; mandatory reporting, review and investigation of lethal incidents; and support for those engaged in crowd control to reduce the need to resort to lethal force.28 In Concluding Observations the Committee often refers to the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990),29 less frequently to the Code of Conduct for Law Enforcement Officials,30 and only occasionally to the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.31

Lack of Legal Basis and Arbitrariness General Comment 36 observes how the ‘protected by law’ requirement and the prohibition against ‘arbitrary’ deprivation of life, though independent, are overlapping in that ‘a deprivation of life that lacks a legal basis or is otherwise inconsistent with life-protecting laws and procedures is, as a rule, arbitrary in nature’.32 It gives the well-acknowledged example of a death sentence following an unfair trial conducted in breach of domestic laws of criminal procedure or 26 Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/37/40) at 137 (1982), 31 March 1982 [13.1] [13.3]; GC 36 [19]. 27 GC 36 [19]. 28 GC 36 [13]. 29 Use of Force: Guidelines for Implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August 7 September 1990, cited, e.g., at USA CCPR/C/79/Add.50 (1995) 32 and USA CCPR/C/USA/ CO/4 (2014) 11; Honduras CCPR/C/HND/CO/1 (2006) 10; Bulgaria CCPR/C/BGR/CO/3 (2011) 11; Armenia CCPR/C/ARM/CO/2 (2012) 13; Haiti CCPR/C/HTI/CO/1 (2014) 10; Indonesia CCPR/C/IDN/CO/1 (2013) 16; Israel CCPR/C/ISR/CO/4 (2014) 13; Benin CCPR/ C/BEN/CO/2 (2015) 21; Burkina Faso CCPR/C/BFA/CO/1 (2016) 26; Kuwait CCPR/C/KWT/ CO/3 (2016) 43; South Africa CCPR/C/ZAF/CO/1 (2016) 27; Congo CCPR/C/COD/CO/4 (2017) 44; El Salvador CCPR/C/SLV/CO/7 (2018) 24. 30 Code of Conduct for Law Enforcement Officials, 5 February 1980, A/RES/34/169, cited at Tunisia A/42/40 (1987) 121; Japan A/43/40 (1988) 604; Italy A/44/40 (1989) 562; Uruguay A/ 44/40 (1989) 288; Azerbaijan CCPR/C/AZE/CO/3 (2009) 11; Nepal CCPR/C/NPL/CO/2 (2014) 10. 31 Principles on the Effective Prevention and Investigation of Extra legal, Arbitrary and Summary Executions, 24 May 1989, recommended by ECOSOC Res. 1989/65 of 24 May 1989, cited, e.g., at Togo CCPR/CO/76/TGO (2002) 9. 32 GC 36 [11].

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evidence. The counterpart connection between arbitrariness and unlawfulness under Article 9 is illustrated in General Comment 35 by unauthorised confinement of prisoners beyond the length of their sentences, the unauthorised extension of other forms of detention, and continued confinement of detainees in defiance of a judicial order for their release.33 Broader Protective and Other Duties

To Protect the Right to Life The obligation of the State under Article 6 is to protect the right to life of every person ‘within its territory and under its jurisdiction’.34 It extends to actions within the jurisdiction by other States.35 States must take measures to prevent and punish deprivation of life by criminal acts, and also to prevent arbitrary killing by their own security forces, or other groups under its control.36 Protection is also needed against the risks to life from non-State actors, such as in cases of lynching,37 conflict between different interest groups,38 the use of private armies and vigilante groups,39 illegal armed groups,40 private militia,41 private security forces,42 private contractors to the State43 and killing by private individuals.44 As part of their Article 2(1) obligation States must take appropriate preventative measures.45 In Pathmini Peiris v. Sri Lanka the State’s failure to respond adequately to reported death threats constituted an Article 6 violation. The authorities took no action to protect the author’s husband, who was shot dead by masked men, long after death threats were made to coerce the family into withdrawing complaints against police.46 33 GC 35 [11]. 34 Chongwe v. Zambia, CCPR/C/70/D/821/1998 (2000), 25 October 2000 [5.2] (the State authorised the use of lethal force without lawful reasons, which could have led to the killing of the author); Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [7.3] (threats and harassment which led to an attempt on the author’s life were carried out by agents of the State). 35 García v. Ecuador, CCPR/C/40/D/319/1988, 5 November 1991 [5.2] (violations of Arts 7, 9 and 13 by Equador as a result of violations occurring during operations by the US Drug Enforcement Agency in Ecuador). 36 GC 6 [3]; El Alwani v. Libya, CCPR/C/90/D/1295/2004, 11 July 2006 [6.7]; Hernandez v. Philippines, CCPR/C/99/D/1559/2007, 26 July 2010 [7.3]. 37 Guatemala CCPR/CO/72/GTM (2001) 16; Guatemala CCPR/C/GTM/CO/3 (2012) 18; Mozambique CCPR/C/MOZ/CO/1 (2013) 12. 38 Burkina Faso CCPR/C/BFA/CO/1 (2016) 41 (conflicts between pastoralists and farmers affect ing the Fulani (Peulh) communities led to physical injuries and deaths). 39 Philippines CCPR/C/PHL/CO/4 (2012) 14. 40 Colombia CCPR/C/COL/CO/7 (2016) 22. 41 Cameroon CCPR/C/79/Add.116 (1999)16. 42 Guatemala CCPR/C/GTM/CO/3 (2012) 16. 43 USA CCPR/C/USA/CO/4 (2014) 5. 44 Honduras CCPR/C/HND/CO/2 (2017) 40 (persistently high murder rates). 45 General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 [8]. 46 Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011 [7.2].

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A response is demanded to threats to life which are foreseeable, particularly where an effective one is reasonably available and accessible. The right to health, as such, is not protected by the provisions of the Covenant.47 Yet the author in Nell Toussaint v. Canada successfully claimed a violation of her right to life when, as someone diagnosed with a pulmonary embolism, poorly controlled diabetes and other conditions she was denied coverage under the Federal Government’s programme of healthcare for immigrants (IFHP). She did not fit into any of the four categories of immigrants eligible, because she had lawfully entered Canada as a visitor from Grenada and worked in Canada from 1999 to 2008 without obtaining residency status or permission to work. Her already critical health deteriorated to life-threatening status in 2009 and domestic courts agreed that her life and health had been put at significant risk by denying her access to the IFHP scheme. The Committee found a violation of Article 6 (and 26) because, at a minimum, States Parties have the obligation to provide access to existing healthcare services, that are reasonably available and accessible, when lack of access to them would expose a person to a reasonably foreseeable risk that can result in loss of life.48 In its latest General Comment the Committee qualified the principle that States are under a due diligence obligation to undertake reasonable positive measures, with the words ‘which do not impose on them disproportionate burdens’ (based in Inter-American and European jurisprudence).49

Remedies, Criminal Investigation, Prosecution and Punishment Article 2(3) requires States to ensure that all persons have accessible, effective and enforceable remedies in order to vindicate Covenant rights. States must ensure that those responsible are brought to justice when investigations reveal the violation of a right recognised domestically or internationally as criminal, such as torture, cruel, inhuman and degrading treatment (Article 7), summary and arbitrary killing (Article 6) and enforced disappearance (Articles 7, 9 and frequently Article 6).50 Criminal prosecution and, where appropriate, punishment are required.51 Failure to carry out a prompt, thorough and effective investigation into the circumstances of death are likely to result in findings of violation of Article 6, read alone 47 Linder v. Finland, CCPR/C/85/D/1420/2005, 28 October 2005 [4.3]. 48 Toussaint v. Canada, CCPR/C/123/D/2348/2014, 24 July 2018 [11.2] [11.5]. 49 GC 36 [21]; Sawhoyamaxa Indigenous Community v. Paraguay, IACtHR Judgment, 29 March 2006) [155]; Kiliç v. Turkey, ECHR Judgment of 28 March 2000, Application No. 22492/93 [62], [63]; Osman v. United Kingdom, Judgment of 28 October 1998, Reports of Judgments and Decisions 1998 VIII [115], [116]. 50 GC 31 [15], [18]. 51 Sathasivam and Saraswathi v. Sri Lanka, CCPR/C/93/D/1436/2005, 8 July 2008 [6.4]; Amirov v. Russian Federation, CCPR/C/95/D/1447/2006, 2 April 2009 [11.2]; Olmedo v. Paraguay, CCPR/C/104/D/1828/2008, 22 March 2012 [7.3].

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and in conjunction with Article 2(3).52 Such findings are said to be particularly warranted in cases where the State’s direct responsibility for excessive use of force is indicated by use of a firearm.53 The absence of investigation to establish responsibility for the kidnapping and murder in Marcellana and Gumanoy v. Philippines, and the arrest, ill-treatment and killing in Chaulagain v. Nepal amounted to a denial of justice, in violation of Article 6 in the former case, and of Articles 6(1), 7, 9 and 10 in the latter, each in conjunction with Article 2(3).54 The lack of investigation prevents the victim, and family members, from pursuing a claim for compensation.55 Article 2(3) provided an available basis for a finding in Novaković v. Serbia, in conjunction with Article 6, when there was insufficient evidence to attribute direct responsibility to the State in the case of death as a result of inadequate medical treatment. It lay in the failure to investigate properly the death and take appropriate action against those responsible.56 A similar finding was made in Bhandari v. Nepal when the State failed to explain the effectiveness and adequacy of its investigations and the concrete steps taken to clarify the circumstances of the detention and the cause of alleged death, or to locate the mortal remains and return them to the author’s family.57 According to the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, in all suspected cases of extralegal, arbitrary and summary executions the purpose of the investigation is to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about death. It should include an autopsy, collection and analysis of all physical and documentary evidence and 52 E.g., Zakharenko v. Belarus, CCPR/C/119/D/2586/2015, 17 March 2017 [7.3], [8]; Bolakhe v. Nepal, CCPR/C/123/D/2658/2015, 19 July 2018 [7.14]. The relevant obligations of States are analysed in Vera Rusinova, ‘The Duty to Investigate the Death of Persons Arrested and/or Detained by Public Authorities’, in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff, 2010), p. 65. 53 E.g., Umetaliev and Tashtanbekova v. Kyrgyzstan, CCPR/C/94/D/1275/2004, 30 October 2008 [9.6] (six years after the victim’s corpse was found with a wound on his neck from a firearm the official investigation had not progressed); Amirov v. Russian Federation, CCPR/C/95/D/1447/ 2006, 2 April 2009 [11.3]. See also Pestaño v. Philippines, CCPR/C/98/D/1619/2007, 23 March 2010 [7.3] (staged suicide by shooting; fifteen years after the victim’s death the authorities had still not initiated an independent investigation). 54 Marcellana and Gumanoy v. Philippines, CCPR/C/94/D/1560/2007, 30 October 2008 [7.4] (over five years elapsed since the killings took place, but the authorities had not indicted, prosecuted or brought to justice anyone); Chaulagain v. Nepal, CCPR/C/112/D/2018/2010, 28 October 2014 [11.4] [11.5]. 55 E.g., Moidunov and Zhumbaeva v. Kyrgyzstan, CCPR/C/102/D/1756/2008, 19 July 2011 [3.3], [8.10]. See also Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [7.2]. 56 Novaković v. Serbia, CCPR/C/100/D/1556/2007, 21 October 2010 [7.2] [7.3] (the first suspect was not interrogated and the criminal procedure was not initiated until forty months after the death; an indictment was not raised until five years after the death). 57 Bhandari v. Nepal, CCPR/C/112/D/2031/2011, 29 October 2014 [8.9] (violations of Art. 6(1), and of Art. 2(3) read in conjunction with Art. 6).

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statements from witnesses. The investigation should distinguish between natural death, accidental death, suicide and homicide.58 Investigations should be pursued through an independent commission of inquiry or similar procedure in cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about inadequacies in these respsects or other substantial reasons.59

Organisational Requirements In General Comment 36 the Committee highlighted the need for institutional and organisational mechanisms to support the obligation to protect life, following the Inter-American decision in González et al. v. Mexico, which attracted international attention principally because of government failure to intervene to prevent extreme violence against women and to call those responsible to account: ‘the duty to protect by law the right to life also requires States parties to organize all State organs and governance structures through which public authority is exercised in a manner consistent with the need to respect and ensure the right to life, including establishing by law adequate institutions and procedures for preventing deprivation of life, investigating and prosecuting potential cases of unlawful deprivation of life, meting out punishment and providing full reparation’.60

Obligations on Expulsion or Extradition When an individual is removed from a country against their will, by way of extradition or expulsion, responsibility rests with the State of departure not to expose them to ‘real risk’ (meaning a necessary and foreseeable consequence)61 of ‘irreparable harm’62 in the country to which they are sent. This stems from the 58 For examples of staged suicide, see Pestaño v. Philippines, CCPR/C/98/D/1619/2007, 23 March 2010; Turdukan Zhumbaeva v. Kyrgyzstan, CCPR/C/102/D/1756/2008, 19 July 2011. 59 Principles on the Effective Prevention and Investigation of Extra legal, Arbitrary and Summary Executions [9], [11]. See also Eshonov v. Uzbekistan, CCPR/C/99/D/1225/2003, 22 July 2010 [9.5] (the author complained about a lack of impartiality in the investigation and provided a detailed description of injuries suggesting that the victim had died from a violent death; official investigations concluded there were no grounds for criminal proceedings for lack of corpus delicti). 60 GC 36 [19] (footnote omitted). The relevant passage is at González et al. (‘Cotton Field’) v. Mexico, Inter American Court of Human Rights, 16 November 2009 [236]. 61 Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993 [14.1]. 62 GC 31 [12]; e.g., Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.2] [8.3] (deportation to Somalia would, if implemented, constitute a violation of Arts 6(1) and 7 as the author lacked clan support, was at risk of forced recruitment by pirate or Islamist militia groups and would be exposed to generalised violence); X v. Sweden, CCPR/C/103/D/1833/2008, 1 November 2011 [9.2] [9.4] (deportation to Afghanistan constituted a violation of Arts 6 and 7 where homosexual activities were punishable as Hudood crimes attracting (as a maximum) the

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obligation in Article 2(1) to ‘respect and ensure’ Covenant rights for everyone either ‘in their territory’ or ‘under their control’. A State’s Article 2 duty would be negated by handing over of a person to another State where treatment contrary to the Covenant is certain, or is the very purpose of handing them over.63 States parties to the Covenant must ensure that they carry out all their legal commitments, whether under domestic law or under agreements with other States, in a manner consistent with the Covenant.64 ‘Irreparable harm’ means harm such as that contemplated by Articles 6 (as ‘the most essential of all Covenant rights’),65 and 7.66 States should give sufficient weight to the real and personal risk that a person might face.67 The responsibility also derives from the substantive Covenant provisions at stake. It should not be subject to any balancing with considerations concerning the type of criminal conduct of which an individual is accused or suspected.68 Authorities must not overlook important evidence, such as that indicating previous torture, and their reasoning must be supportable.69 In OP1 petitions the Committee requires ‘substantial grounds’ for considering that there is real risk of such harm.70 In assessing the existence of a real risk ‘all relevant considerations’ must be taken into account, including those specific to the author and more generally the circumstances prevailing in the receiving State. The author in Nikolai Valetov v. Kazakhstan was a Russian Federation national in Kazakhstan who claimed that if extradited to Kyrgyzstan he would be tortured (he was in fact extradited before the Committee made its decision). The background to his claim was that while staying in Kyrgyzstan with his niece, who was intimately involved with a police officer, he witnessed his niece commit a murder, for which the author was framed, and while detained for that (and other crimes which he denied) he was tortured with such severity that he was invalided. He managed to escape to Kazakhstan. Kazakh authorities conducted an investigation with the aim of verifying the allegations of torture, but the author’s uncontested claim was that this ‘verification was purely a formality’, he could not participate in the investigation procedure, he was never questioned and no forensic examination was conducted. Kazakhstan offered no explanation as to why it rejected his claims of torture without carrying out forensic examination before deporting him, as this

63 64 65 66 67 68 69 70

death sentence; the authorities gave insufficient weight to the risks the author faced in Afghanistan, focusing instead mainly on inconsistencies in his account and attributing low credibility). E.g., Ng v. Canada, CCPR/C/49/D/469/1991, 5 November 1993 [6.2]. E.g., G.T. v. Australia, CCPR/C/61/D/706/1996, 4 November 1997 [8.1]. GC 31 [12]; Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993 [13.1]. For Art. 7 risks, see chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Obligations on Expulsion or Extradition’. E.g., H.A. v. Denmark, CCPR/C/123/D/2328/2014, 9 July 2018 [9.8]; K.H. v. Denmark, CCPR/ C/123/DR/2423/2014, 16 July 2018 [8.7]. E.g., Valetov v. Kazakhstan, CCPR/C/110/D/2104/2011, 17 March 2014 [14.2]. E.g., C.L. and Z. v. Denmark, CCPR/C/122/D/2753/2016, 26 March 2018 [8.4], [8.7]. E.g., Fong v. Australia, CCPR/C/97/D/1442/2005, 23 October 2009 [9.4].

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would have verified his claim that he still bore the scars and signs of torture. The Committee noted that ‘at the time of the author’s extradition, it was known, or should have been known, to [Kazakh] authorities that there were credible public reports of widespread use of torture against detainees in Kyrgyzstan’.71 In some cases a real risk is to be deduced from the intent of the country to which the person concerned is to be deported, as well as from the pattern of conduct shown by the country in similar cases. However, in G.T. v. Australia the Committee could not conclude that it was a foreseeable and necessary consequence of deportation that the individual would be tried, convicted and sentenced to death, because Malaysia had not requested his return, nothing otherwise pointed to any intention on the part of Malaysian authorities to prosecute him, and in similar cases no prosecution had occurred.72 Many claims fail for being insufficiently substantiated for the purposes of admissibility. In X v. Denmark mere membership of a particular Christian church was insufficient, in the case of deportation to Afghanistan, to ground claims under Articles 7, 18 and 26, following the author’s conversion from the Sunni Muslim faith, when this would be unlikely to be known by the authorities in Afghanistan.73

Assurances In practice arrangements for inter-country transfers are addressed in bilateral agreements, such as extradition treaties. Contracting parties to the Covenant must ensure that they meet their obligations under such arrangements in a manner consistent with the Covenant.74 In the case of extradition on a capital offence a State is able to seek diplomatic assurances that the death penalty will not be imposed, but to be effective they must be sufficient to eliminate the risk of that eventuating. They should contain a monitoring mechanism and be safeguarded by arrangements made outside the text of the assurances themselves to provide for their effective implementation.75 The existence of such assurances, their content and the availability of enforcement

71 Valetov v. Kazakhstan, CCPR/C/110/D/2104/2011, 17 March 2014 [14.5]. Cf. Z.H. v. Denmark, CCPR/C/119/D/2602/2015, 27 March 2017 [7.5] (although there were reports of blood feud crimes neither the author nor his family were directly targeted by the blood feud). 72 G.T. v. Australia, CCPR/C/61/D/706/1996, 4 November 1997 [8.4]. See also H.A. v. Denmark, CCPR/C/123/D/2328/2014, 9 July 2018 [9.8] (the Committee was not in a position to assess the extent to which the situation in Afghanistan may impact the author’s personal risk); B.L. v. Australia, CCPR/C/112/D/2053/2011, 16 October 2014 [7.4] (not shown that the authorities in Senegal would not generally be willing and able to provide impartial, adequate and effective protection to the author against threats to his physical safety, and not unreasonable to expect him to settle in a location where such protection would be available to him). 73 X v. Denmark, CCPR/C/113/D/2515/2014, 1 April 2015 [4.3]. 74 Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993 [13.1]. 75 Alzery v. Sweden, CCPR/C/88/D/1416/2005, 25 October 2006 [11.5].

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mechanisms are all elements relevant to the overall determination of whether there is, in fact, a real risk. They were insufficient in Maksudov et al. v. Kyrgyzstan for a number of authors who were sought by Uzbekistan for offences which carried the death penalty.76 The ineffectiveness of the assurances procured in Valetov v. Kazakhstan was indicated by the failure by Kazakh authorities to visit the author where he was detained in Kyrgyzstan.77

Duty to Investigate Issues Raised Failure to undertake a serious examination of the authenticity of allegations about the risks of harm before deporting may result in a finding under Article 6(1). In Shakeel v. Canada Canadian authorities were proposing to expel a Christian evangelist pastor to Pakistan in spite of a fatwa in Pakistan calling for his death. The fatwa was not given any weight by Canadian authorities because it was in Urdu, yet had an English-language signature stamp; and in the English-language footer the word ‘Colony’ was misspelled ‘Calony’. They conducted no official expert analysis, nor any thorough investigation into the person responsible for the fatwa, his profile or his authority to issue fatwas. Investigation was all the more critical given that the fatwa was issued by the same person who initiated police proceedings against the author for blasphemy, a capital offence. Added to this, the author’s brother was severely beaten (and subsequently died) by unknown assailants enquiring about the whereabouts of the author following the fatwa.78 The danger was less obviously personally directed at the author in Ostavari v. Korea, but was sufficient to conclude that he would be exposed to a real risk of irreparable harm in his circumstances, as a Muslim convert to Christianity. Although apostasy was not codified as a crime under Iranian law there were indications that it may be treated as such by prosecutors and judges, and it had led to a number of instances of arbitrary arrest, imprisonment in solitary confinement, torture, conviction and even execution. Korean authorities failed to give due consideration to the personal risk he faced in Iran not only as a Christian convert, but also as a theologian with a conspicuous evangelist profile, given that Christians engaged in proselytising were exposed to serious risks of persecution, as well as penal consequences.79 It was also noteworthy that when an official from the Iranian Embassy visited the author at the Korean authorities’ request (to issue a new passport to allow his repatriation) the author was asked to reconvert to the Muslim faith. He also received a subsequent visit from another official from the Iranian Embassy, who tried to persuade him to

76 Maksudov et al. v. Kyrgyzstan, CCPR/C/93/D/1461, 1462, 1476 & 1477/2006, 16 July 2008 [12.4] [12.6]. 77 Valetov v. Kazakhstan, CCPR/C/110/D/2104/2011, 17 March 2014 [14.6]. 78 Shakeel v. Canada, CCPR/C/108/D/1881/2009, 24 July 2013 [8.5] (expulsion would constitute a violation of Arts 6(1) and 7). 79 Ostavari v. Korea, CCPR/C/110/D/1908/2009, 25 March 2014 [11.4] [11.5].

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reconvert to Islam. In general, when conversion to another religion is raised as a risk after an asylum request has been dismissed, it may be reasonable to carry out an indepth examination of the circumstances of the conversion by the authorities.80 Authorities should not be distracted in their duty to investigate. The refugee claim in Choudhury v. Canada stalled at the initial stage because the author and his wife did not credibly establish their identity (the author’s identity document did not contain certain expected characteristics, and his wife’s identity card was listed among documents that had been declared stolen by the government of Pakistan). This prevented a proper examination of allegations that he and his wife had been physically attacked and threatened with death by an extremist group for speaking out against Islamist fundamentalism and violence, which caused that group to file a police complaint alleging blasphemy. An arrest warrant followed. The Committee found that the extradition of the author and his family would be in violation of Articles 6(1) and 7, read in conjunction with Article 2(3), noting that religious minorities in Canada, including Shias such as the author, continued to face fierce persecution and insecurity in Pakistan, and the Pakistani authorities were unable, or unwilling, to protect them. In spite of the fact that death sentences had reportedly not been carried out, several instances were reported of extrajudicial assassination, by private actors, of members of religious minorities accused under the blasphemy law.81 Similarly in X v. Sweden, the Committee found that the author’s forced return to Afghanistan violated Articles 6 and 7. The authorities rejected his application to remain in Sweden on the ground that at a late stage in the asylum process he based his claim on sexual orientation, which substantially undermined his credibility. This was in spite of his unchallenged sexual orientation and its impact on him in the particular circumstances in Afghanistan, including as a famous playwright of works on bisexual themes, and that certain same-sex activities in Afghanistan were punishable as Hudood crimes by a maximum sentence of death.82 Arbitrary Deprivation of Life

Elements of Inappropriateness, Injustice, Lack of Predictability and Due Process of Law, as well as Elements of Reasonableness, Necessity and Proportionality A deprivation of life may be authorised by domestic law and still be arbitrary. The notion of ‘arbitrariness’ under both Articles 6 and 9 includes elements of 80 Office of the United Nations High Commissioner for Refugees, Guidelines on International Protection: Religion Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06, 28 April 2004 [34], cited, e.g., in S.A.H. v. Denmark, CCPR/C/121/D/2419/2014, 8 November 2017 [11.8]; K.H. v. Denmark, CCPR/C/123/DR/2423/2014, 16 July 2018 [8.5]. 81 Choudhary v. Canada, CCPR/C/109/D/1898/2009, 28 October 2013 [9.7] [9.8]. 82 X v. Sweden, CCPR/C/103/D/1833/2008, 1 November 2011 [9.3] [9.4].

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‘inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality’.83 The illustrative application of these principles in General Comment 36, in situations of self-defence or the defence of others, emphasises that the use of potentially lethal force must be ‘strictly necessary’ in view of the threat posed, a means of ‘last resort after other alternatives have been exhausted or deemed inadequate’, not exceeding an amount ‘strictly needed for responding to the threat’, ‘carefully directed’ (only against the attacker), and, in the case of law enforcement, must be regarded as ‘an extreme measure’.84 Lethal force may only be used to meet a proportionate threat.85

Excessive Use of Force In finding that the police actions in Suarez de Guerrero v. Colombia were disproportionate to the requirements of law enforcement the Committee noted the following: the killings were deliberate; they occurred without warning to the victims, who had not fired a shot and had no opportunity to surrender to the police or explain their presence or intentions; there was no evidence that the police action was in self-defence or that of others, or that it was necessary to arrest the victims to prevent their escape; the victims were no more than suspects in a kidnapping that had occurred some days earlier; and their killing deprived them of all the protections of due process of law.86 Proportionality is judged by the circumstances prevailing at the moment force is applied. In Rickly Burrell v. Jamaica the Committee found that authorities had failed to take effective measures to protect the author’s life when a death row prisoner was shot dead in a warder hostage-taking incident, after the warders had been rescued.87 In Concluding Observations the Committee has criticised the excessive use of force by law enforcement officials,88 including in the context of peaceful protests,89

83 GC 36 [12] (footnotes omitted), adopting similar text from GC 35 [12]. The Committee has endorsed such criteria in a number of Art. 9 decisions, e.g., Van Alphen v. Netherlands, CCPR/C/ 39/D/305/1988, 23 July 1990 [5.8]; Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.8]; Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.1]. 84 GC 36 [12]. 85 E.g., Baumgarten v. Germany, CCPR/C/78/D/960/2000, 31 July 2003 [9.4]. 86 Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/37/40) at 137 (1982), 31 March 1982 [13.2] [13.3]. 87 Burrell v. Jamaica, CCPR/C/53/D/546/1993, 18 July 1996 [9.5]. 88 E.g., Dominican Republic A/40/40 (1985) 390 (incidents involving the use of excessive force by police leading to death and injury); Korea A/47/40 (1992) 506 (concern at excessive use of force by police); Brazil CCPR/C/BRA/CO/2 (2005) 12 (widespread use of excessive force by law enforcement officials); Malawi CCPR/C/MWI/CO/1 (2011) 11 (reported excessive use of force by police officers during arrests, and deaths in custody). 89 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 38 (allegations of frequent use of excessive force against persons participating in planned or spontaneous peaceful protests).

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public meetings and demonstrations,90 riots,91 when aliens are deported,92 and the use of particular weapons such as tasers (given they can lead to severe pain and lifeendangering injury).93 It has recommended prompt and impartial investigation of law enforcement officials (and publication of the results), criminal proceedings where appropriate, training with regard to the criminal nature of the excessive use of force, as well as on the principle of proportionality when using force.94

Arbitrariness through Inconsistency with International Law or Domestic Law Florentina Olmedo v. Paraguay arose out of the police killing of a farmworker while attending a 1,000-strong demonstration urging implementation by authorities of agreements signed by the Ministry of Agriculture, when demonstrators came face-to-face with a large number of regular police, anti-riot police and military personnel. Since the authorities’ investigation into the victim’s death was botched, to the extent it was progressed at all, it shed little light on events. The Committee concluded with unusual brevity that the State had failed to meet its obligation to protect the life of the demonstrators and found a violation of Article 6(1), and of Article 2(3) read in conjunction with Article 6(1).95 Umateliev v. Kyrgyzstan similarly concerned the killing of a demonstrator, by militia in the course of crowd dispersal during a mass protest at the treatment of an MP in retaliation for critical remarks against the government. The Committee accepted the evidence of the State’s direct responsibility for the victim’s death through excessive use of force, relying on the principle that the law must strictly control and limit the circumstances in which a person may be deprived of life by the authorities.96

90 E.g., Venezuela CCPR/C/VEN/CO/4 (2015) 14 (reports of the involvement of military personnel in the policing of public gatherings and demonstrations); Colombia CCPR/C/COL/CO/7 (2016) 36 (excessive use of force during public demonstrations); Congo CCPR/C/COD/CO/4 (2017) 43 (allegations that police and security officers used excessive force to disperse demonstrations, resulting in deaths and injuries); Algeria CCPR/C/DZA/CO/4 (2018) 46(d) (recommendation to take effective measures to ensure that law enforcement personnel do not use excessive force during crowd dispersal operations). 91 Cameroon CCPR/C/CMR/CO/4 (2010) 18. 92 E.g., Belgium CCPR/CO/81/BEL (2004) 14 (allegations of excessive force being used when aliens are deported); Switzerland CCPR/CO/73/CH (2001) 13 (in the course of the deportation of aliens, use of excessive force, resulting on some occasions in death). See also Italy CCPR/C/ITA/ CO/6 (2017) 20 (reports of frequent use of excessive force by police and other law enforcement officials, particularly in the context of migrant identification procedures at certain ‘hotspots’). 93 Belgium CCPR/C/BEL/CO/5 (2010) 13. 94 Georgia CCPR/C/79/Add.75 (1997) 9. For similar recommendations see, e.g., Brazil CCPR/C/ BRA/CO/2 (2005) 12 (investigation by an independent body, with the accused subject to suspension or re assignment during the process of investigation). 95 Olmedo v. Paraguay, CCPR/C/104/D/1828/2008, 22 March 2012 [7.5]. 96 Umateliev v. Kyrgyzstan, CCPR/C/94/D/1275/2004, 30 October 2008 [9.5].

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General Comment 36 draws on principles established under the African Charter, as does the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, for the proposition that deprivation of life is, as a rule, arbitrary if it is inconsistent with international law or domestic law.97 In holding that deprivation of life through acts or omissions that violate Covenant provisions other than Article 6 is also, as a rule, arbitrary in nature, General Comment 36 gives the example of excessive use of force against demonstrators exercising their right of freedom of assembly.98 The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions comments that arbitrariness may be inferred from laws and practices that violate the principle of non-discrimination, and that may be unnecessary and disproportionate; any deprivation of life based on discrimination in law or in practice is ipso facto arbitrary in nature.99 Article 9 jurisprudence is instructive to the extent it addresses arbitrariness subsisting in detention which is incompatible with a Covenant provision.100

A RT I C L E 6 ( 2 )– ( 6 ) : D E AT H P E N A LT Y P R O V I S I O N S The scheme of Articles 6(2)–(6) is to create a narrow exception to the right to life to allow the death penalty to continue in those countries that have not yet abolished it, and to lay down the terms on which that exception applies.101 Article 6(2): Preconditions for Imposition of the Death Penalty Since the death penalty provisions were to appease certain countries that retained the death penalty, and were concessionary, the right to life in Article 6(1) is to be interpreted widely, and Article 6(2) narrowly.102 Violation of Article 6(2) is also in violation of Article 6(1). For those countries that have not already abolished the

97 GC 36 [12]; A/HRC/35/23 (2017) [30]. 98 GC 36 [17] cites the report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions A/HRC/26/36 (2014) [75], which in turn cites the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. It gives as a second example the principle that a death sentence may be imposed only in accordance with the law and not contrary to the provisions of the Covenant. As expressed in decision making, it implies that ‘the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal’: e.g., Burdyko v. Belarus, CCPR/C/114/D/2017/ 2010, 15 July 2015 [8.6]. 99 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, A/73/ 314, 7 August 2018 [15]. See also her report at A/HRC/35/23 (2017) [30] [32]. 100 See chapter on Article 9: Liberty and Security, section ‘Arbitrariness Where Detention is Incompatible with a Covenant Provision’. 101 For an early synopsis of the Committee’s Art. 40 role and relevant jurisprudence, see Christina Cerna, ‘Universality of Human Rights: the Case of the Death Penalty’, (1997) 3(2) ISLA J. Int. & Com. Law, p. 477. 102 Judge v. Canada, CCPR/C/78/D/829/1998, 5 August 2002 [10.5].

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death penalty, Article 6(2) permits its imposition only ‘for the most serious crimes’, to emphasise the ‘utmost gravity’ of the deprivation of life by the authorities of the State,103 which do not include: aggravated robbery using a firearm (resulting in a wound to the thigh but no fatality);104 statutory rape defined to cover crimes of different degrees of seriousness;105 drug trafficking;106 armed robbery;107 corruption, abduction or piracy.108 Insofar as the death sentence is permitted at all, it must be imposed in accordance with the law in force at the time of the offence,109 and be ordered by final judgment of a competent court. It must also not be contrary to the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention),110 or the Covenant. The Covenant provisions of particular relevance are: Article 7, so that it must not involve execution constituting ‘cruel, inhuman or degrading treatment or punishment’;111 Article 15, which rules out retroactive operation of criminal liability and sanctions;112 and Article 14, the most commonly actuated in this context.113 The imposition of the death penalty as a result of proceedings in violation of Article 14 is arbitrary in nature, and a violation of Article 6.114 Most examples occur as multiple Article 14 violations, including as many as Article 14(1), (2), (3)(b), (3)(g) and (5) in a single case,115

103 Husband of Maria Fanny Suarez de Guerrero v. Colombia, Communication No. R.11/45, Supp. No. 40 (A/37/40) at 137 (1982), 31 March 1982 [13.1]. See also Iraq CCPR A/53/40 (1998) 99; Kuwait CCPR/C/KWT/CO/3 (2016) 22. 104 Chisanga v. Zambia, CCPR/C/85/D/1132/2002, 18 October 2005 [7.4] (the mandatory imposi tion of the death penalty was based solely upon the category of crime, without giving the judge any margin to evaluate the circumstances of the particular offence). 105 Rolando v. Philippines, CCPR/C/82/D/1110/2002, 3 November 2004 [5.2]. 106 Thailand CCPR/CO/84/THA (2005) 14 (concern that the death penalty was applicable to drug trafficking). 107 Chisanga v. Zambia, CCPR/C/85/D/1132/2002, 18 October 2005 [7.4]; Lubuto v. Zambia, CCPR/C/55/D/390/1990/Rev.1, 31 October 1995 [7.2]. 108 See examples at GC 36 [35]. 109 Ashby v. Trinidad and Tobago, CCPR/C/74/D/580/1994, 21 March 2002 [10.8] (execution carried out while a sentence was still under challenge was in violation of both Art. 6(1) and (2)). 110 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS vol. 78, p. 277, entered into force 12 January 1951. 111 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Capital Punishment, Means of Execution’. 112 See chapter on Article 15: Retroactive Criminal Law. 113 On the similarities and divergences in fair trial standards in capital trials, see Walter Kälin, ‘“Death is Different”: the Death Penalty and the Right to a Fair Trial’, in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff, 2010), p. 21. 114 E.g., Levy v. Jamaica, CCPR/C/64/D/719/1996, 25 November 1998 [8] (violation of Art. 14(3)(d), and consequently Art. 6(2); Marshall v. Jamaica, CCPR/C/64/D/730/1996, 25 November 1998 [6.6] (violation of Art. 14(3)(d), and consequently Art. 6(2)); Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.7] (violation of the right to a fair trial and thus also in breach of Art. 6). 115 E.g., Kovaleva and Kozyar v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012 [11.8]. See also Morrison v. Jamaica, CCPR/C/64/D/663/1995, 25 November 1998 [8.7] (violation of Arts 14(3)(c), (d) and 5, and consequently Art. 6(2)); Phillip v. Trinidad and Tobago, CCPR/C/64/D/

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though most involve fewer,116 and in some cases only a single Article 14 violation.117 Related violations of Article 7 (torture to extract a confession) and Article 14(3)(g) (not to be compelled to confess guilt) are distinct and temporally separate in that torture is antecedent to admitting the resulting incriminating confession into evidence, rendering the trial unfair.118 The State may have avoided the sentences of death passed in the circumstances of Gunan v. Kyrgyzstan and Chikunova v. Uzbekistan if it had properly investigated, as it was bound to, allegations of torture to extract a confession, but it failed to do so. (Those two cases also illustrate how the Committee at times couches its findings in cases of the death sentence following violation of the relevant Article 14 provision, as a violation of Article 6(2) read in conjunction with Article 14,119 and at others as a violation of Article 14, read together with Article 6.120) It is well-established that the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, under Article 6(1), in circumstances where it is imposed without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence.121 The principle acknowledges that the death penalty is an exceptional form of punishment. The existence of a de facto moratorium on the death penalty,

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117 118 119

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594/1992, 3 December 1998 [8] (violation of Art. 14(3)(b) and (d), and consequently of Art. 6); Idiev v. Tajikistan, CCPR/C/95/D/1276/2004, 31 March 2009 [9.7] (death sentence in violation of Arts 7 and 14(3)(g); and Art. 14(3)(d) and (e), thus also Art. 6(2)); Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.10] (violation of Art. 6 read together with Art. 14, and of Art. 14(3)(a), (b), (d) and (g)); Selyun v. Belarus, CCPR/C/115/D/2289/ 2013, 6 November 2015 [7.3], [8] (violation of Arts 6, 7, 9(3) and 14(2) and (3)(b), (d) and (g)). Yuzepchuk v. Belarus, CCPR/C/112/D/1906/2009 (2014), 24 October 2014 [8.6] (Art. 14(3)(e) and (g)). For similar findings in relation to Art. 14(3)(g), see also Uteev v. Uzbekistan, CCPR/C/ 91/D/1150/2003, 26 October 2007 [7.4]; Zhuk v. Belarus, CCPR/C/109/D/1910/2009, 30 October 2013 [8.7]. Mansaraj et al. v. Sierra Leone, CCPR/C/72/D/839, 840 & 841/1998, 16 July 2001 [5.6] (Art. 14(5)); Khalilova v. Tajikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.5] (Art. 14(5)). Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.11] (viola tion of Art. 6 read together with Art. 14). Gunan v. Kyrgyzstan, CCPR/C/102/D/1545/2007, 25 July 2011 [6.2] [6.5] (violation of Art. 6(2), read in conjunction with Art. 14). See also Karimov and Nursatov v. Tajikistan, CCPR/C/ 89/D/1108 & 1121/2002, 27 March 2007 [7.6] (in which death sentences in violation of Art. 14(3)(b) and (d), resulted in findings of violation of Art. 6(2)). Chikunova v. Uzbekistan, CCPR/C/89/D/1043/2002, 16 March 2007 [7.5], [8]. E.g., Thompson v. St. Vincent and the Grenadines, CCPR/C/70/D/806/1998, 18 October 2000 [8.2]; Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.3] (the death penalty was based solely on the particular category of crime of which the accused person was found guilty); Carpo et al. v. Philippines, CCPR/C/77/D/1077/2002, 28 March 2003 [8.3] (if a single act constitutes at once two crimes, the maximum penalty for the most serious crime must be applied; an attempted murder therefore attracted the death penalty as the maximum possible penalty for murder); Rayos v. Philippines, CCPR/C/81/D/1167/2003, 27 July 2004 [7.2]; Hussain et al. v. Guyana, CCPR/C/85/D/862/1999, 25 October 2005 [6.2]; Chan v. Guyana, CCPR/C/85/D/913/2000, 31 October 2005 [6.5]; Persaud v. Guyana, CCPR/C/ 86/D/812/1998, 21 March 2006 [7.2]; Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.3]. See also Barbados CCPR/C/BRB/CO/3 (2007) 9; Ghana CCPR/C/ GHA/CO/1 (2016) 19; Kuwait CCPR/C/KWT/CO/3 (2016) 22(c).

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which often occurs in countries transitioning away from the death penalty, is not sufficient to render a mandatory death sentence consistent with the Covenant.122 Article 6(3): No Implied Derogation from Genocide Convention By virtue of Article 6(3) nothing in Article 6 can be relied on to permit any derogation from a State’s obligations under the Genocide Convention. The obligations remain to prevent and punish all deprivations of life which constitute part of a crime of genocide. The travaux indicate that a reference to this convention was necessary because the individual’s right to life could not be safeguarded adequately if the group to which a person belonged was threatened with extinction.123 Article 6(4): Right to Seek Pardon and Commutation Article 6(4) mandates the right to seek a pardon or commutation of a death sentence. It also provides that an amnesty, pardon or commutation may be granted in all cases,124 regardless of the crime committed.125 States should ensure that everyone sentenced to death, after exhaustion of all legal avenues of appeal, has an effective opportunity to exercise the right to seek a pardon or commutation of sentence from the relevant authorities.126 The power of pardon, commutation and reprieve should be genuinely available to those sentenced to death.127 States retain discretion for spelling out the modalities of the exercise of the rights under Article 6(4).128 It is not secured if an amnesty, pardon or commutation is available at the discretion of the executive.129 A failure 122 E.g., Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, Views adopted on 17 March 2009 [7.2] (a moratorium on the death penalty applied for nearly thirty years); Johnson v. Ghana, CCPR/C/110/D/2177/2012, 27 March 2014 [7.3] (there was no room for judicial discretion at first instance or appeal courts so as not to impose the only sentence provided by law, that is, the death penalty, after the author had been convicted for murder). 123 Haji N. A. Noor Muhammad, ‘Due Process of Law for Persons Accused of a Crime’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 159. See also A/2929, Ch.VI (1955), p. 30, [8]. 124 In Chisanga v. Zambia, CCPR/C/85/D/1132/2002, 18 October 2005 [7.5] the Committee considered that taking the author from death row and then refusing to apply to him an amnesty applicable to those who had been on death row for ten years, when he had been in detention for eleven years, deprived him of an effective remedy in relation to his right to seek amnesty or commutation under Art. 6(4), together with Art. 2. 125 E.g., Iraq CCPR/C/IRQ/CO/5 (2015) 28. 126 E.g., Iran CCPR/C/IRN/CO/3 (2011) 12. 127 Japan CCPR/C/JPN/CO/5 (2008) 16, 17 (requests for retrial or pardon did not have the effect of staying the execution of a death sentence); Malawi CCPR/C/MWI/CO/1/Add.1 (2014) 11 (concern that the right to seek a pardon was not effectively ensured). 128 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.4]. 129 Thompson v. St Vincent and the Grenadines, CCPR/C/70/D/806/1998, 18 October 2000 [8.2]. In this context note the Individual Opinion (dissenting) by Mr David Kretzmer, co signed by Mr Abdelfattah Amor, Mr Maxwell Yalden and Mr Abdallah Zakhia, summarising their under standing that the Covenant expressly demands that States have regard to particular circum stances of the defendant or the particular offence before carrying out a death sentence, and that

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to respond to a request for a pardon constitutes a breach of Article 6(4).130 Noncompliance with Article 6(4), through lack of express implementation in domestic law, has been a frequent Committee concern.131 Article 6(5): Crimes Committed by Those Under 18 States may not impose the death sentence on anyone below the age of 18, or on a pregnant woman.132 The Committee has pointed out non-compliance with Article 6(5) where the law has authorised the death penalty on those under 18 years,133 or on those below 18 at the time of the alleged offence;134 and it has deplored carrying out the execution in such circumstances.135 It has examined closely how the prohibition in Article 6(5) is achieved domestically, including whether it prevents execution of a woman even after confinement, given the needs of the infant.136 Where domestic law has been brought into compliance it has expected applicable reservations and declarations to be withdrawn.137 It considers reservations to Article 6(5) to be incompatible with the object and purpose of the Covenant.138

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132 133 134

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a State has a legal obligation to take such circumstances into account in considering applications for pardon or commutation; the consideration must be carried out in good faith and according to a fair procedure. Chikunova v. Uzbekistan, CCPR/C/89/D/1043/2002 (2007), 16 March 2007 [7.6] (execution carried out prior to the examination of the condemned person’s request for a pardon; several pardon requests were filed but no reply was received). E.g., Guatemala CCPR/CO/72/GTM (2001) 18 (concern about the elimination of the right to seek pardon or commutation of the death sentence; should adopt provisions to ensure that the right to seek pardon may be exercised); Yemen CCPR/CO/75/YEM (2002) 15 (calls upon the State Party to bring its legislation and practice into line with Art. 6(4)); Japan CCPR/C/JPN/CO/ 5 (2008) 16 (concern at the non use of the power of pardon, commutation or reprieve and the absence of transparency concerning procedures for seeking benefit for such relief); Iraq CCPR/ C/IRQ/CO/5 (2015) 27 (certain crimes punishable with the death penalty are explicitly excluded from being granted special pardon); Japan CCPR/C/JPN/CO/6 (2014) 13(d) (requests for retrial or pardon should have a suspensive effect). E.g., Clive Johnson v. Jamaica, CCPR/C/64/D/592/1994, 25 November 1998 [10.3] (the author demonstrated he was under 18 when the crime for which he was sentenced was committed, in violation of Art. 6(5)). E.g., India CCPR/C/79/Add.81 (1997) 20; Barbados A/43/40 (1988) 551. In this context, see Philip Sapsford, ‘An End to the Death Penalty for Juvenile Offenders’, (2005) 45 Va. J. Int. L., p. 799. E.g., Cyprus CCPR/C/79/Add.39 (1994) 6 (concern that the domestic law allows the death penalty for those between 16 and 18 years of age); Yemen CCPR/C/YEM/CO/5 (2012) 14 (concern that the law de facto permits the imposition of the death penalty on persons below 18 years of age at the time of the alleged commission of the offence). Yemen CCPR A/50/40 (1995) 256 (deplores that, according to information, executions of persons below the age of 18 have taken place); Iran CCPR/C/IRN/CO/3 (2011) 13 (gravely concerned about the continued execution of minors and the imposition of the death penalty for persons who were found to have committed a crime while under 18 years of age). Mali A/36/40 (1981) 235. Thailand CCPR/CO/84/THA (2005) 14 (regret that, despite prohibiting imposition of the death penalty on persons below 18 years of age, it has not yet withdrawn its declaration to Art. 6(5)). USA CCPR/C/79/Add.50 (1995) 14, 27. See also USA CCPR/C/USA/CO/4 (2014) 3(a).

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Article 6(6): Abolition Article 6(6) prevents the permissive approach towards the death penalty to be used as a basis for advocating its retention or to delay its abolition.

R I G H T TO L I F E I N PA RTI C U L A R S E T T I N G S Death Penalty Cases Kindler v. Canada is a case that no longer fully represents the Committee’s approach to questions of extradition to a country where the relevant offence carries the death penalty. The Committee found that the author’s extradition to the United States following his conviction for premeditated murder did not amount to violation by Canada. Canada had abolished capital punishment (except for certain military offences). It was entitled under the relevant extradition treaty to seek assurances that the death penalty would not be imposed. The Committee observed that when exercising discretion whether to seek such assurances under an extradition treaty, it is in principle to be expected that a State that has itself abandoned capital punishment would give serious consideration to its own chosen policy in making its decision, although Article 6 does not necessarily require a State to refuse to extradite or to seek assurances. Of course, there would be an Article 6 violation if the decision to extradite without assurances was taken arbitrarily or summarily. Important risk factors in considering whether to extradite include the availability of due process in the requesting country and, of greater relevance in that case, the importance of not providing a safe haven for those convicted or accused of murder.139 In tightening that approach, in Judge v. Canada the Committee revisited the basis for the apparently permissive text of Article 6(2) and recalled that though it contemplates that the death penalty may still be imposed in some countries, it was not a pretext for delaying or preventing abolition. Article 6 applied differently between those countries that had abolished the death penalty and those that had not. For countries that had abolished the death penalty, there was an obligation not to expose a person to the real risk of its application. If an abolitionist State deported someone to a country where they were under sentence of death, it established a crucial link in the causal chain that would make possible that person’s execution. The Committee therefore concluded that Canada, as a State that had abolished the death penalty, violated Article 6(1) by deporting the author to the United States where he was under a sentence of death, without ensuring that the death penalty would not be carried out. In addition, since the author was swiftly deported following the rejection of his application for a stay of

139 Kindler v. Canada, CCPR/C/48/D/470/1991, [14.5] [14.6].

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deportation, he was not able to challenge it, and it meant he could not pursue further available remedies, in violation of Article 6, together with Article 2(3).140 The obligation not to expose a person to the risk of being sentenced to death when removed overseas holds even if there is uncertainty as to the particular charges or the likelihood of a guilty finding, and even over whether the death sentence would be imposed in the receiving country, as was the case in Fong v. Australia. Authorities in China had issued an arrest warrant on charges of corruption carrying the non-mandatory death penalty. A significant influence on the Committee’s finding that the author’s enforced removal would amount to violation of Article 6 was that the risk to her life would be definitively known only when it was too late for the sending State to protect her right to life. It is not necessary to prove that the author ‘will’ be sentenced to death, but merely that there is a ‘real risk’ of it. The Committee also considered itself obliged to give due weight to the risk of an unfair trial on return.141 Detainees (on Remand or in Prison Custody, or Detained for Health Reasons) Those in custody are particularly vulnerable to abuse and the Committee frequently reaches the conclusion that deprivation of life in custody is arbitrary in the absence of persuasive State rebuttal. By arresting and detaining an individual the State takes responsibility to care for their life.142 It is incumbent on States to ensure the right to life of detainees, and not on the latter to request protection.143 The burden of proof does not rest solely on the author in OP1 claims, given that the State alone often has access to the relevant information to support allegations (among other factors which render access to evidence unequal). Although this principle applies generally, it is particularly important in death in custody cases.144 Loss of life in custody, in unnatural circumstances, creates a presumption of arbitrary deprivation of life by State authorities, which can be rebutted only by a thorough, prompt and impartial investigation,145 especially when complaints by relatives or other

140 141 142 143

Judge v. Canada, CCPR/C/78/D/829/1998, 5 August 2002 [10.4] [10.5], [10.9]. Fong v. Australia, CCPR/C/97/D/1442/2005, 23 October 2009 [9.5] [9.7]. Zhumbaeva v. Kyrgyzstan, CCPR/C/102/D/1756/2008, 19 July 2011 [8.6]. Lantsov v. Russian Federation, CCPR/C/74/D/763/1997, 26 March 2002 [9.2] (after the deterioration of the health of the victim, he received medical care only during the last few minutes of his life; prison authorities refused such care during the preceding days and that situation caused his death). 144 Bleier v. Uruguay, Communication No. R.7/30, Supp. No. 40 (A/37/40) at 130 (1982), 29 March 1982 [13.3]; Barbato et al. v. Uruguay, Communication No. 84/1981, CCPR/C/ OP/2 at 112, 29 March 1982 [9.2], [9.6]; Zhumbaeva v. Kyrgyzstan, CCPR/C/102/D/1756/2008, 19 July 2011 [8.7]. 145 GC 36 [29].

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reliable reports evidence unnatural death,146 and even if it is necessary to exhume a body to examine the allegations.147 The Committee is able to find a violation of Article 6(1) in cases of death in custody even if it is unable to reach definitive conclusions on the cause of death. In Barbato et al. v. Uruguay the Committee could not arrive at a definite conclusion as to whether the victim committed suicide, was driven to suicide or was killed by others while in custody, but reached the ‘inescapable conclusion’ that in all the circumstances the authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by Article 6(1).148 In Sathasivam and Sarawathi v. Sri Lanka it was prepared to make the ‘presumption’ of arbitrary deprivation of life when eyewitnesses testified to seeing the victim in normal health when he was taken into custody, and shortly after with severe injuries, following which he died. It could attribute both the injury and death suffered in custody to the State.149 The presence of a medical condition imposes additional duties on the State. In Titiahonjo v. Cameroon the Committee found a violation of the obligation to protect the victim’s right to life where his death was caused by failure to allow a nurse access to the detainee’s cell when he was clearly severely ill.150 In the case of a detainee with a medical condition, the State must organise its detention facilities so that it knows about the state of health of its detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility. In Lantsova v. Russian Federation the Committee stressed that a properly functioning medical service within the detention centre could and should have known about a dangerous change in the state of health of its detainee. It held the State responsible under Article 6(1) for failing to take appropriate measures to protect his life while held there.151 Similarly in Chiti v. Zambia, in the absence of proper explanation, the premature death of an HIV-positive detainee with cancer was attributable to the denial of the necessary drugs, as well as the torture and inhuman conditions of detention to which he was subjected.152 Although there is no 146 Telitsin v. Russian Federation, CCPR/C/80/D/888/1999, 29 March 2004 [7.6]; similarly Zhumbaeva v. Kyrgyzstan, CCPR/C/102/D/1756/2008, 19 July 2011 [8.8] (in the absence of persuasive arguments by the State rebutting the suggestion that the victim was killed in custody, and failure to evaluate importance discrepancies in official statements, the State was responsible for arbitrary deprivation of the victim’s life). 147 Eshonov v. Uzbekistan, CCPR/C/99/D/1225/2003, 22 July 2010 [9.6]; Principles on the Effective Prevention and Investigation of Extra legal, Arbitrary and Summary Executions [12]. 148 Barbato et al. v. Uruguay, Communication No. 84/1981, CCPR/C/OP/2 at 112, 29 March 1982 [9.2], [9.6]. 149 Sathasivam and Saraswathi v. Sri Lanka, CCPR/C/93/D/1436/2005, 8 July 2008 [6.2]. See also Akunov v. Kyrgyzstan, CCPR/C/118/D/2127/2011, 27 October 2016 [8.6], [8.7]. 150 Titiahonjo v. Cameroon, CCPR/C/91/D/1186/2003, 26 October 2007 [6.2]. See also Mulezi v. Congo, CCPR/C/81/D/962/2001, 8 July 2004 [5.4]. 151 Lantsova v. Russian Federation, CCPR/C/74/D/763/1997, 26 March 2002 [9.2]. 152 Chiti v. Zambia, CCPR/C/105/D/1303/2004, 26 July 2012 [12.2]. Cf. Tornel v. Spain, CCPR/C/ 95/D/1473/2006, 20 March 2009 [7.2] (in which the Art. 6(1) claim failed for want of an

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Covenant ‘right to health’ a failure to separate detainees with communicable diseases from other detainees could raise issues under Articles 6(1) and 10(1).153 Particularly vulnerable detainees are those held in mental health institutions and in immigration detention.154 Failure to take necessary measures to protect against cellmates resulted in an adverse finding in Ernazarov v. Kyrgyzstan because the victim was conspicuously vulnerable as a sex offender and was placed in a cell with six cellmates and was abused constantly by them. The State did no more than deny the allegations that the guards knew of the abuse. In its finding the Committee referred to the duty of the State party to afford protection to everyone in detention ‘as may be necessary’ against threats to life.155 Enforced Disappearance Those subjected to enforced disappearance are particularly vulnerable, since their deprivation of liberty, followed by concealment of their fate or whereabouts, removes them from the protection of the law and places their lives at serious and constant risk, for which the State is accountable.156 In addition to violating Articles 9, 7 and 10 enforced disappearance constitutes a grave threat to the right to life, and a finding will easily be made under Article 6(1) in the absence of evidence of the State meeting its obligation to protect the victim’s life.157 The Covenant demands that each State Party concern itself with the fate of every individual and treat every individual with respect for the dignity inherent in every human being.158

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established causal link between the death of an incurably ill prisoner and his continuing incarceration, and insufficient proof that medical treatment was inadequate). Cabal and Bertran v. Australia, CCPR/C/78/D/1020/2001, 7 August 2003 [7.7]. For further discussion in the context of Art. 10, see chapter on Article 10: Treatment of Those Deprived of Their Liberty, sections ‘Vulnerable Detainees and Prisoners’, ‘Immigration Detention’. For examples of recent Art. 6 concerns for refugees, see Cameroon CCPR/C/CMR/CO/5 (2017) 35. For those in public care facilities, see Romania CCPR/C/ROU/CO/5 (2017) 29; and arising out of prison conditions or death in prison, see Bangladesh CCPR/C/BGD/CO/1 (2017) 25; Cameroon CCPR/C/CMR/CO/5 (2017) 29; Congo CCPR/C/COD/CO/4 (2017) 33, 34; Honduras CCPR/C/ HND/CO/2 (2017) 30; Jordan CCPR/C/JOR/CO/5 (2017) 18, 19; Madagascar CCPR/C/MDG/CO/ 4 (2017) 37; Mauritius CCPR/C/MUS/CO/5 (2017) 35; Gambia CCPR/C/GMB/CO/2 (2018) 33; Guatemala CCPR/C/GTM/CO/4 (2018) 28; Lebanon CCPR/C/LBN/CO/3 (2018) 35. See also Switzerland CCPR/C/CHE/CO/4 (2017) 32 (death during forced repatriation). Ernazarov v. Kyrgyzstan, CCPR/C/113/D/2054/2011, 25 March 2015 [9.4]. For further discussion on issues affecting disappeared persons, see chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Enforced Disappearance’. Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 31 July 2003 [9.3]; Bousroual v. Algeria, CCPR/ C/86/D/1085/2002, 15 March 2006 [9.2]; Boucherf v. Algeria, CCPR/C/86/D/1196/2003, 30 March 2006 [9.2]; Madoui v. Algeria, CCPR/C/94/D/1495/2006, 28 October 2008 [7.2]; Sharma v. Nepal, CCPR/C/94/D/1469/2006, 28 October 2008 [7.4]; Il Khwildy v. Libya, CCPR/ C/106/D/1804/2008, 1 November 2012 [7.4]; Sharma v. Nepal, CCPR/C/122/D/2265/2013, 6 April 2018 [10.6]. E.g., Ammari v. Algeria, CCPR/C/112/D/2098/2011, 30 October 2014 [8.2].

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States Parties should take specific and effective measures to prevent the disappearance of individuals and establish facilities and procedures to investigate thoroughly, by an appropriate impartial body, cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.159 The Committee is able to make a factual comparison with other claims arising in similar circumstances in which victims were killed or failed to reappear alive.160 Circumstantial evidence of disappearance frequently suffices, particularly if unrefuted, and where there is a failure to investigate.161 Vulnerable General Comment 36 highlights the need for special measures of protection towards those whose lives are put at risk, and it identifies among them human rights defenders, humanitarian workers, journalists, officials fighting corruption and organised crime, witnesses to crime, prominent public figures, victims of domestic and gender-based violence and human trafficking, unaccompanied migrant children, children in situations of armed conflict, members of ethnic and religious minorities, indigenous peoples, LGBTI persons, those with albinism, alleged witches, displaced persons, asylum seekers, refugees and stateless persons.162 Abortion The Committee’s main Article 6 concerns with abortion have been to ensure the availability of abortion services: where the life of the mother is endangered; for therapeutic reasons (such as fatal foetal abnormality or where the foetus is not viable);163 where pregnancy resulted from rape or incest;164 and where restrictive availability would cause women to resort to clandestine abortions, which could 159 GC 6 [4]; GC 36 [58]; Bashasha and Bashasha v. Libya, CCPR/C/100/D/1776/2008, 20 October 2010 [7.3]. 160 E.g., Khwildy v. Libya, CCPR/C/106/D/1804/2008, 1 November 2012 [7.12]; Al Rabassi v. Libya, CCPR/C/111/D/1860/2009, 18 July 2014 [7.3]; Neupane v. Nepal, CCPR/C/120/D/ 2170/2012, 21 July 2017 [10.4]; Sharma et al. v. Nepal, CCPR/C/122/D/2364/2014, 6 April 2018 [9.4]. 161 González v. Argentina, CCPR/C/101/D/1458/2006, 17 March 2011 [9.2]; Khadzhiyev and Muradova v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018 [7.4]; Millis v. Algeria, CCPR/C/122/D/2398/2014, 6 April 2018 [7.5]. 162 GC 36 [23]. 163 E.g., Ireland CCPR/C/IRL/CO/4 (2014) 9; UK CCPR/C/GBR/CO/7 (2015) 17 (Northern Ireland); Costa Rica CCPR/C/CRI/CO/6 (2016) 17; Jamaica CCPR/C/JAM/CO/4 (2016) 26. 164 E.g., Guatemala CCPR/C/GTM/CO/3 (2012) 20; Angola CCPR/C/AGO/CO/1 (2013) 13; Chile CCPR/C/CHL/CO/6 (2014) 15; Malta CCPR/C/MLT/CO/2 (2014) 13; Sierra Leone CCPR/C/ SLE/CO/1 (2014) 14; Sri Lanka CCPR/C/LKA/CO/5 (2014) 10; Côte d’Ivoire CCPR/C/CIV/ CO/1 (2015) 15; Congo CCPR/C/COD/CO/4 (2017) 21; Jordan CCPR/C/JOR/CO/5 (2017) 20, 21; Mauritius CCPR/C/MUS/CO/5 (2017) 15, 16; Algeria CCPR/C/DZA/CO/4 (2018) 25; Guatemala CCPR/C/GTM/CO/4 (2018) 14; Lebanon CCPR/C/LBN/CO/3 (2018) 26; Sudan CCPR/C/SDN/CO/5 (2018) 28.

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endanger their own lives.165 Abortion must also not be prevented where to do so would violate Articles 7 (cruel, inhuman or degrading treatment) or 17 (arbitrary interference with private life), or be discriminatory.166 In Mellet v. Ireland the Committee found violations of Articles 7, 17 and 26. The author discovered in the twenty-first week of her pregnancy that her foetus had congenital defects and would die in utero or shortly after birth and, because of the prohibition of abortion in Irish law, was confronted with the option of continuing the pregnancy to term, knowing that the foetus would most likely die inside her, or having a voluntary termination of pregnancy in a foreign country.167 The Committee has recommended lifting a requirement for prior court authorisation for therapeutic abortions, and abortions following rape or incest, in order to effectively guarantee access to legal, safe abortions, because of the difficulties involved in obtaining the authorisation,168 and lifting measures to prevent women treated in public hospitals from being reported by the medical or administrative staff for the offence of abortion.169 It has been concerned at the persistently high incidence of adolescent pregnancy and maternal mortality in some countries,170 as well as suicide among young girls related to the prohibition of abortion.171 It has underlined the importance of reproductive and sexual health education in school curricula and for the broader public.172 Conscientious objection by physicians has been a concern where it results in difficulties in accessing legal abortions owing to 165 For recent examples of the Committee’s approach to such issues, see Jamaica CCPR/C/JAM/ CO/4 (2016) 26; Bangladesh CCPR/C/BGD/CO/1 (2017) 15; Cameroon CCPR/C/CMR/CO/5 (2017) 21; Dominican Republic CCPR/C/DOM/CO/6 (2017) 15; Honduras CCPR/C/HND/ CO/2 (2017) 16; Pakistan CCPR/C/PAK/CO/1 (2017) 15, 16; Swaziland CCPR/C/SWZ/CO/1 (2017) 28; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 20; El Salvador CCPR/C/SLV/CO/7 (2018) 15; Gambia CCPR/C/GMB/CO/2 (2018) 17; Guinea CCPR/C/GIN/CO/3 (2018) 25; Liberia CCPR/C/LBR/CO/1 (2018) 27. 166 See chapters on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Abortion’; Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’; Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Denial of Abortion Services’. For concern to ensure there are no undue restrictions, see, e.g., Zambia CCPR/C/ ZMB/CO/3 (2007) 18; Philippines CCPR/C/PHL/CO/4 (2012) 13; Ireland CCPR/C/IRL/CO/4 (2014) 9; Morocco CCPR/C/MAR/CO/6 (2016) 21, 22. For an exploration of the right to life and the disabled, see Luke Clements and Janet Read, Disabled People and the Right to Life: the Protection and Violation of Disabled People’s Most Basic Human Rights (Routledge, 2008). 167 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.7] [7.11]. See also Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017 [7.3] [7.12] (findings under Arts 7, 17 and 26). 168 Bolivia CCPR/C/BOL/CO/3 (2013) 9. 169 El Salvador CCPR/C/SLV/CO/6 (2010) 10. 170 Kenya CCPR/CO/83/KEN (2005) 14; Dominican Republic CCPR/C/DOM/CO/5 (2012) 15; Peru CCPR/C/PER/CO/5 (2013) 14; Cameroon CCPR/C/CMR/CO/5 (2017) 21; Guinea CCPR/C/GIN/CO/3 (2018) 25; Lao CCPR/C/LAO/CO/1 (2018) 21. 171 Ecuador CCPR/C/79/Add.92 (1998) 11; El Salvador CCPR/C/SLV/CO/7 (2018) 15. 172 Moldova CCPR/C/MDA/CO/2 (2009) 17; Argentina CCPR/C/ARG/CO/5 (2016) 12. For examples of recommendations of guaranteed access to reproductive health services, and education and awareness raising programmes that focus on the importance of contraception and of sexual and reproductive health rights, see Angola CCPR/C/AGO/CO/1 (2013) 13;

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the high number and distribution across the country of physicians who refuse to perform abortions.173 Countries are also recommended to take all measures necessary to combat the stigma associated with abortion.174 Relevant standards include those established by the World Health Organisation and the Committee on the Rights of the Child (CRC).175 Suicide and Euthanasia The Committee has concern for high suicide rates, especially amongst young people (for those between 20 and 30 it is the highest cause of death in some countries),176 and the occurrence of suicide in detention, which requires proper investigation and reporting.177 It has recommended efforts to prevent suicide by studying its root causes and to improve suicide prevention policies. On the subject of dying with dignity, the CESCR in its General Comment on the highest attainable standard of health addressed a number of measures with a view to realising the right to health of older persons, and emphasised the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment, including attention and care for chronically and terminally ill persons, ‘sparing them avoidable pain and enabling them to die with dignity’.178

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176 177 178

Paraguay CCPR/C/PRY/CO/3 (2013) 13; Sierra Leone CCPR/C/SLE/CO/1 (2014) 14; Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 15; San Marino CCPR/C/SMR/CO/3 (2015) 15. Italy CCPR/C/ITA/CO/6 (2017) 16. See also Colombia CCPR/C/COL/CO/7 (2016) 20 (con scientious objection on the part of healthcare personnel without appropriate referrals); Poland CCPR/C/POL/CO/7 (2016) 23 (the ‘conscience clause’ had, in practice, often been inappro priately invoked, with the result that access to legal abortion was unavailable in entire institu tions and in one region of the country; recommendation to ensure that women were not obliged, as a consequence of conscientious objection, to resort to clandestine abortion, by enhancing the effectiveness of the referral mechanism to ensure access to legal abortion in cases of conscien tious objection by medical practitioners). For procedural obstacles posed by conscientious objection when abortion was not widely available, see Argentina CCPR/C/ARG/CO/5 (2016) 11; Swaziland CCPR/C/SWZ/CO/1 (2017) 28; Lebanon CCPR/C/LBN/CO/3 (2018) 25, and for an overview of policies regulating conscience issues in Latin America, see Diya Uberoi and Beatriz Galli, ‘Refusing Reproductive Health Services on Grounds of Conscience in Latin America’, (2016) 24 SUR Int. J. on Hum. Rts, p. 105. Burkina Faso CCPR/C/BFA/CO/1 (2016) 19; Ghana CCPR/C/GHA/CO/1 (2016) 23; Congo CCPR/C/COD/CO/4 (2017) 22; Pakistan CCPR/C/PAK/CO/1 (2017) 16; Algeria CCPR/C/ DZA/CO/4 (2018) 26; Gambia CCPR/C/GMB/CO/2 (2018) 18; Liberia CCPR/C/LBR/CO/1 (2018) 26. CRC, General Comment No. 4 (2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/2003/4 [27], [33]; WHO Guidelines on Safe Abortions World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems, 2nd edn (WHO, 2012). Korea CCPR/C/KOR/CO/4 (2015) 24. See also Switzerland CCPR/C/CHE/CO/3 (2009) 12 (concern at the high incidence of firearms related suicides). Latvia CCPR/C/LVA/CO/3 (2014) 10; UK CCPR/C/GBR/CO/7 (2015) 16. See also Sweden CCPR/C/SWE/CO/6 (2009) 14. CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4 [25]. For focus on assisted suicide, see

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The focus of the Committee’s attention on assisted suicide has been to ensure independent or judicial oversight to determine that a person seeking assistance to commit suicide is operating with full free and informed consent. It recommended that Switzerland consider amending its legislation in order to ensure independent or judicial oversight to determine that a person who is seeking assistance for suicide is indeed acting with full free and informed consent.179 It more insistently urged the Netherlands to review its legislation out of concern at the extent of euthanasia and assisted suicides there. Although a second physician must give an opinion, they may terminate a patient’s life without any independent review by a judge or magistrate to guarantee that this decision was not the subject of undue influence or misapprehension.180 The Committee has expressed the belief that where a State Party seeks to relax legal protection with respect to an act deliberately intended to put an end to human life, the Covenant obliges it to apply the most rigorous scrutiny to determine whether the State Party’s obligations to ensure the right to life are being complied with. It was therefore concerned that the Netherlands system may fail to detect and prevent situations where undue pressure could lead to the circumvention of the stipulated criteria (the ‘voluntary and well-considered request’ of the patient in a situation of ‘unbearable suffering’ offering ‘no prospect of improvement’ and ‘no other reasonable solution’). It was also concerned that, with the passage of time, such a practice may lead to routinisation and insensitivity to the strict application of the requirements in a way not anticipated, and it learned with unease that in the Netherlands more than 2,000 cases of euthanasia and assisted suicide were reported to its review committee in 2000, and that committee came to a negative assessment only in three cases. The large numbers involved raised doubts whether the system was only being used in extreme cases in which all the substantive conditions were scrupulously maintained.181 War The Covenant does not contain in Article 6 or any other the provision a prohibition against the threat or use of force by one State against another, even though contemplated by the UN Charter (in the inherent right of self-defence).182 The

Paul Tiensuu, ‘Whose Right to What Life: Assisted Suicide and the Right to Life as a Fundamental Right’, (2015) 15 HRLR, p. 251. Broader attention is given to issues of dignity in works such as Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, (2008) 19 Eur. J. Int. L., p. 655; and Elizabeth Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’, (2012) 12 HRLR, p. 199, and more extensively Christopher McCrudden, Understanding Human Dignity (OUP/British Academy, 2014). 179 Switzerland CCPR/C/CHE/CO/3 (2009) 13. 180 Netherlands CCPR/C/NLD/CO/4 (2009) 7. 181 Netherlands CCPR/CO/72/NET (2001) 5. 182 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 51.

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only reference in the Covenant to war is in Article 20(1), requiring States to prohibit propaganda for war. Article 6 applies during situations of armed conflict, though rules of international humanitarian law also then apply, in addition to the provisions in Article 4 which prevents the abuse of a State’s emergency powers.183 Issues raised by the Committee concerning armed conflict include: ensuring that amnesty and immunity provisions are not applied to the most serious human rights violations that amount to crimes against humanity or war crimes;184 ensuring adequate support for protection of witnesses of war crimes;185 the effective investigation and prosecution of war crimes, and compensation for victims;186 the harms of discriminatory selection of such cases;187 and the lack of implementation of the principle of command responsibility.188 The position of children in situations of armed conflict has received recent attention in Security Council Resolution 2427 (2018), adding further to the framework for addressing the protection of children affected by armed conflict.189 For relevant Committee concerns for children in situations of armed conflict, and

183 General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11 (GC 29) [3]. See also chapter on Article 4: Derogation in Times of Officially Proclaimed Public Emergency Threatening the Life of the Nation, sections ‘Derogation is Permitted only to the Extent Strictly Required by the Exigencies of the Situation’ and ‘Implementation’. For a summary of the recent revisions to the UN Manual on the Effective Prevention of Extra legal, Arbitrary and Summary Executions (the Minnesota Protocol), see A/HRC/32/39/Add.4 16 June 2016 [1] [10]. 184 Kosovo CCPR/C/UNK/CO/1 (2006) 12; Macedonia CCPR/C/MKD/CO/2 (2008) 12; Sierra Leone CCPR/C/SLE/CO/1 (2014) 17. See also General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS, vol. 78, p. 277; UN Security Council Resolution 1674, adopted 28 April 2006 (after reaffirming Resolutions 1265 (1999) and 1296 (2000) concerning the protection of civilians in armed conflict and Resolution 1631 (2005) on cooperation, it stressed a comprehensive approach to the prevention of armed conflict and its recurrence). For an international criminal law perspec tive, see William Schabas, War Crimes and Human Rights: Essays on the Death Penalty, Justice, and Accountability (Cameron May, 2008). 185 Serbia and Montenegro CCPR/CO/81/SEMO (2004) 12; Bosnia and Herzegovina CCPR/C/ BIH/CO/1 (2006) 13. 186 Croatia CCPR/CO/71/HRV (2001) 10; Sudan CCPR/C/SDN/CO/3 (2007) 9; Serbia CCPR/C/ SRB/CO/2 (2011) 10; Georgia CCPR/C/GEO/CO/4 (2014) 10; Croatia CCPR/C/HRV/CO/3 (2015) 11; Iraq CCPR/C/IRQ/CO/5 (2015) 17, 18; Serbia CCPR/C/SRB/CO/3 (2017) 22; Liberia CCPR/C/LBR/CO/1 (2018) 10; Sudan CCPR/C/SDN/CO/5 (2018) 12. 187 Croatia CCPR/C/HRV/CO/2 (2009) 10 (disproportionally directed at ethnic Serbs). 188 Serbia and Montenegro CCPR/CO/81/SEMO (2004) 12. Ian Park identifies and analyses relevant law and State practice, and makes proposals for compliance with the right to life obligations in The Right to Life in Armed Conflict (OUP, 2018). For an assessment of the Committee’s involvement, see David Weissbrodt, ‘The Role of the Human Rights Committee in Interpreting and Developing Humanitarian Law’, (2010) 31 U. Pa. J. Int. L., p. 1185; Vito Todeschini, ‘The ICCPR in Armed Conflict: An Appraisal of the Human Rights Committee’s Engagement with International Humanitarian Law’, (2017) 35 Nord. J. Hum. Rts, p. 203. 189 Security Council Resolution 2427, 9 July 2018.

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references to the Optional Protocol on the Involvement of Children in Armed Conflict see the chapter on Article 24.190 From its perspective in 1984 the Committee’s General Comment 14 voiced concern at the shift from conventional weapons in armed conflict to nuclear and other weapons of mass destruction, concluding that the production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognised as crimes against humanity.191 This was already the subject of the nonproliferation treaty, and more recent initiatives, including those with specific reference to bacteriological and chemical weapons.192

I M P L E M E N TAT I O N The Article 6(1) requirement that the right to life be protected ‘by law’ domestically is most immediately addressed in criminal law provisions proscribing and penalising the taking of life, and acts endangering life, extending also to such matters as regulation of the conduct of security forces, and the possession and use of firearms and other weapons, among many other such measures to minimise risk. Protection ‘by law’ is self-evidently insufficient given an enduring need for other practical and effective measures to guarantee the right. At the same time, a great many threats to life (including those on a mass scale) are not amenable at all to legal protection and require strategic risk-containment and other responses from States to address situations such as malnutrition, infant mortality, epidemics, natural and other disasters. Articles 6(2)–(5) are anomalous subparagraphs in a provision designed to guarantee the right to life. Because they represent a concession to those countries that have not yet abolished the death penalty they curtail its imposition in precise terms. The role of domestic law is therefore to prohibit the death penalty in all circumstances other than allowed by those provisions, and the Committee has inevitably seized on non-compliance in domestic law, for example, concerning the 190 Chapters on Article 24: Protection Required for Children; Article 8: Slavery, Servitude and Forced or Compulsory Labour. 191 CCPR General Comment No. 14: Article 6 (Right to Life) Nuclear Weapons and the Right to Life, 9 November 1984 [6]. 192 Respect for Human Rights in Armed Conflicts, Resolution 2444 (XXIII) of the United Nations General Assembly, 19 December 1968; Treaty on the Non proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161, entered into force 3 May 1970; Convention on the Prohibition of the Use of Nuclear Weapons, 11 January 2006, A/RES/60/88; Treaty on the Prohibition of Nuclear Weapons, New York, 7 July 2017, TREATIES XXVI 9 of 9 August 2017 (not in force). See also Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, 1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992, 1974 UNTS 45; Resolution Adopted by the General Assembly [on the report of the First Committee (A/54/ 572)] 54/63 Comprehensive Nuclear Test Ban Treaty, 10 January 2000, A/RES/54/63.

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use of mandatory death sentences, and the death penalty for offences which do not represent the most serious crimes. Reservations, as always, attract Committee attention. A commonly recurring Article 6 recommendation is abolition of the death penalty at the earliest opportunity and the removal of all covering reservations. Less common are reservations under Article 6(5), but they have endured.193 There is also a strong emphasis on domestic provisions concerning abortion, to ensure that criminal and other restrictions allow suitable exceptions, and to ensure that relevant services are not restricted where to do so would be in violation of Article 7 or 17, or are available on a discriminatory basis. The Committee has also directed some, though confined, attention at domestic law provisions which do not adequately prevent the risk of deportation to countries in circumstances where that would be contrary to international standards.194

C O N C L US I O N The effectiveness of the right to life guaranteed in Article 6 depends critically on the obligations on States in Article 2(1) to respect and to ensure the right to life, and in Article 2(3) to ensure that any victim of violation has an effective remedy. Article 2(1) and (3) are inseparable from Article 6 in the obligation on States to protect life, including in a vast array of circumstances where there may be no attributable State or human fault; and they give rise to strict obligations to investigate Article 6 allegations, to prosecute and punish offenders, and to provide reparation. Within the Committee’s jurisprudence, issues concerning the right to life have occupied a relatively narrow compass: the misuse of the death penalty, obligations of non-refoulement, excessive force in law enforcement, extrajudicial killing and, overlapping with the right to liberty and security in Article 9, enforced disappearance and attempts on a person’s life. However, as the Committee’s latest General Comment makes particularly clear, the right to life is not to be interpreted narrowly, and protective measures incumbent on the State are wide-ranging. Although signalled in many years of Concluding Observations, General Comment 36, far more than its predecessor, demonstrates the necessity for appropriate measures to address the general conditions in society that may give rise to direct threats to life. These include gun violence, recurrent traffic and industrial accidents, environmental degradation, the prevalence of life threatening diseases, substance abuse, widespread hunger and malnutrition, extreme poverty and homelessness. It also suggests a number of 193 See above, section ‘Articles 6(2) (6): Death Penalty Provisions’. 194 Kuwait CCPR/C/KWT/CO/3 (2016) 36; Jamaica CCPR/C/JAM/CO/4 (2016) 37; Norway CCPR/C/NOR/CO/7 (2018) 32. See also Serbia CCPR/C/SRB/CO/3 (2017) 33.

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long-term measures, including access to food, healthcare, water sanitation, effective emergency health services and emergency response operations (fire, ambulance and police), among many others.195 The economical text of the core guarantees in Article 6(1) belies the wider significance and breadth of the inherent right to life.

195 GC 36 [26], [62].

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Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment

INTRODUCTION THE STATE’S OBLIGATION OF ‘EFFECTIVE PROTECTION’ TORTURE CRUEL INHUMAN OR DEGRADING TREATMENT CRUEL, INHUMAN OR DEGRADING PUNISHMENT ‘MEDICAL OR SCIENTIFIC EXPERIMENTATION’ IMPLEMENTATION CONCLUSION

Page 171 177 189 193 205 213 215 216

Covenant Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Comparable Provisions in Other International Instruments European Convention: Article 3. American Convention on Human Rights: Article 5(2). African Charter on Human and Peoples’ Rights: Article 5.

INTRODUCTION Status in International Law There is little doubt about the customary character of the prohibition against torture, and cruel, inhuman or degrading treatment or punishment.1 In addition to being a core component of the Universal Declaration and the Covenant, the prohibition is found in the Convention on the Rights of the Child (Article 37(a)),2 the International Convention on the Protection of the Rights of All Migrant 1 See Etienne Henry, ‘Article 5: “No One Shall Be Subjected to Torture or to Cruel, Inhuman or Degrading Treatment or Punishment”’, ANU College of Law Research Paper No. 18 22, p. 1, 2018, in Humberto Cantú Rivera (ed.), The Universal Declaration of Human Rights: a Commentary (Brill, 2018). 2 Convention on the Rights of the Child, 20 November 1989, UNTS vol. 1577, p. 3.

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Workers and Members of their Families (Article 10),3 and the Convention on the Rights of Persons with Disabilities (Article 15).4 It also received extensive specialist treatment in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture),5 which led to State reporting to the Committee Against Torture, a source of inspiration to the Human Rights Committee when developing its revised General Comment 20 on Article 7.6 Interaction between Article 7 and Other Covenant Provisions There is a close practical nexus between Articles 6, 7, 9 and 10. Article 7 forbids torture, as well as cruel, inhuman or degrading treatment or punishment (CIDT), all directed at the individual’s dignity as well as their physical and mental integrity.7 Article 10 requires those deprived of their liberty to be treated with humanity and with respect for their inherent dignity, overlapping with Article 7 in the mistreatment of detainees and prisoners. The right to personal security in the first sentence of Article 9(1) guarantees freedom from injury to the body and the mind (bodily and mental integrity), and applies in situations such as the excessive use of force, death threats or attempts on an individual’s life.8 Article 6 is likely to 3 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158. 4 Convention on the Rights of Persons with Disabilities, Resolution, adopted by the General Assembly, 24 January 2007, A/RES/61/106. 5 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS 1465, p. 85. For detailed coverage of the convention see Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: a Commentary (Oxford University Press, 2008); J. Hermann Burgers and Hans Danelius, The United Nations Convention against Torture: a Handbook on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Martinus Nijhoff, 1988). Manfred Nowak provides the benefit of his experience as Special Rapporteur on Torture, visiting countries, reviewing documents, collecting evidence, and conducting interviews with perpetra tors, witnesses, and victims of torture in Torture: An Expert’s Confrontation with an Everyday Evil (University of Pennsylvania Press, 2018). Note also the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 9 January 2003, A/RES/57/199. 6 General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992 (GC 20). This superseded General Comment No. 7: Article 7 (Prohibition of Torture or Cruel, Inhuman or Degrading Treatment or Punishment), 30 May 1982 (GC 7), which predated the Convention Against Torture. 7 GC 20 [2], [5]. Elaine Webster proposes and models a methodological approach to the concept of ‘dignity’ in ‘Interpretation of the Prohibition of Torture: Making Sense of “Dignity” Talk’, (2016) 17 Hum Rights Rev., p. 371. Jeremy Waldron points out that dignity is not the ‘whole story of the wrongness of torture’. He combines features of the two schools which stress the social origins of the concept, and which ground dignity in an abstract and idealised philosophical conception of human beings, in ‘Dignity, Rank, and Rights/Reply to Commentators’, in Dan Cohen M (ed.), Dignity, Rank, and Rights, The Berkeley Tanner Lectures (Oxford University Press, 2012), pp. 13 76, 133 48. 8 General Comment No. 35, Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/ C/GC/35 [3]. On the excessive use of force interfacing with Art. 7 in crowd dispersal, see, e.g.,

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be engaged whenever life is threatened by acts amounting to CIDT, and would coincide with Article 9(1) in threats to personal security, and with Article 10(1) in ill-treatment in detention, including the conditions in which individuals are detained, if they endanger life. The arbitrary detention provisions of Article 9 (i.e., beyond the right to personal security) serve important supervisory and preventive roles. Article 9(1) (second sentence) contains a general safeguard against ‘arbitrary arrest or detention’, while Article 9(2)–(4) requires those arrested or detained to be brought under judicial scrutiny, so that the lawfulness of their detention may be tested, and evidence of harm inflicted on them (e.g., to extract a confession) exposed. Article 14(3)(g) serves a complementary role in protecting against compulsion to confess guilt, which would render any ensuing trial unfair.9 Conduct prohibited by Article 7 may be constituted by the violation of other Covenant provisions, such as Article 3, by sexual violence (including gang rape with a discriminatory purpose),10 domestic violence against women, and certain traditional or religious practices, notable among them FGM; Article 8, by forced labour, human trafficking and other forms of exploitation (in combination with Article 24 where it involves children);11 Article 14(2) (presumption of innocence) in the demeaning appearance of an accused for trial handcuffed, caged or wearing a jacket identifying them as a convicted prisoner;12 Article 17 (privacy, family and home) in the loss of reproductive rights by sterilisation, or in enforcement officials recklessly executing their duties at an individual’s home, or deliberately destroying it;13 Articles 17 and 26 in the physical pain and mental suffering in being denied a lawfully available therapeutic abortion (whether to adults, minors (Article 24) or those with intellectual disability); Articles 18, 19 and 26 in discriminatory ill-treatment on the basis of religious belief,14 as punishment

9 10 11

12 13 14

Azerbaijan CCPR/C/AZE/CO/4 (2016) 38; Burkina Faso CCPR/C/BFA/CO/1 (2016) 25; Colombia CCPR/C/COL/CO/7 (2016) 36; Kuwait CCPR/C/KWT/CO/3 (2016) 42; Morocco CCPR/C/MAR/CO/6 (2016) 45; Congo CCPR/C/COD/CO/4 (2017) 43; Algeria CCPR/C/DZA/ CO/4 (2018) 45; Gambia CCPR/C/GMB/CO/2 (2018) 29. See section ‘Article 14 Safeguards against Confessions under Torture’, below. Maya v. Nepal, CCPR/C/119/D/2245/2013, 17 March 2017 [12.3] [12.4]. E.g., Moldova CCPR/C/MDA/CO/3 (2016) 19 (sexual exploitation and forced labour); Madagascar CCPR/C/MDG/CO/4 (2017) 39 (human trafficking of women and children); Lebanon CCPR/C/LBN/CO/3 (2018) 39 (exploitation of migrant workers); Bahrain CCPR/C/ BHR/CO/1 (2018) 47 (trafficking in persons and forced labour). Zinsou v. Benin, CCPR/C/111/D/2055/2011, 18 July 2014 [7.3]. García v. Colombia, CCPR/C/71/D/687/1996 (2001), 3 April 2001 [11]; Hmeed et al. v. Libya, CCPR/C/112/D/2046/2011, 17 October 2014 [7] (violation of Arts 7 and 17(1) in both cases). For harsh treatment of a Jehovah’s Witness who was a conscientious objector to military service, see Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/2227/2012, 14 July 2016 [7.2], [7.6] (cf. Nurjanov v. Turkmenistan, CCPR/C/117/D/2225/2012, 15 July 2016 [8.4] (that prosecution and conviction was for conscientious objection to military service was not substantiated)).

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for critical journalism, for exposing corruption, for political opposition or activism, or to compel a confession about ‘subversive’ political activities.15 Many situations give rise to multiple breaches. Numerous Covenant provisions were violated by the way in which the rape of a minor indigenous girl was investigated and prosecuted (Articles 3, 7, 14(1) (equal access to the courts), 17, 24 and 26) because of the physical and mental suffering visited on her in her physical examination immediately after the rape, and in the gender and racial bias of the court proceedings.16 Enforced disappearance typically contravenes Articles 7, 9 and 10 (if not also Article 6) and entails lack of recognition as a person before the law (Article 16).17 Failure to respond adequately to the disappearance of a child may additionally violate their rights under Article 24 to such measures of protection as are required by their status as a minor.18 The overlap between Articles 7 and 10 is extensive, and it is worth noting some brief points of differentiation and similarity at this stage. They differ in their subject matter. Article 7 captures conduct of a certain severity, and as far as it concerns ‘torture’ in particular is directed at a specific victim; this may also be said (albeit with less consistency) of ‘cruel, inhuman or degrading treatment’. Article 10 may be contrasted in its adroitness in addressing generalised failings towards detainees, including conditions prevailing within a prison or healthcare institution, or a generic policy concerning the treatment of unprocessed migrant detainees,19 though Article 10 is also responsive to ill-treatment meted out to individuals more selectively. Cruel, inhuman or degrading punishment prohibited by Article 7 applies to certain aspects of life sentencing, corporal punishment and capital punishment, but frequently overlaps with Article 10 on issues such as prison discipline and death row conditions. A clear distinction between Articles 7 and 10 is therefore difficult to sustain. A clinical separation is also hampered by the relative lack of definitional guidance in Article 7 on each of the concepts ‘cruel’, ‘inhuman’ or ‘degrading’. The Committee also commonly makes an Article 7 finding without identifying which aspect of Article 7 is enlivened.

15 Khadzhiyev v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018 [7.5]; Akunov v. Kyrgyzstan, CCPR/C/118/D/2127/2011, 27 October 2016 [2.1], [8.8]; Zakharenko v. Belarus, CCPR/C/119/D/2586/2015, 17 March 2017 [2.1], [7.4]; Kerrouche v. Algeria, CCPR/C/118/D/2128/2012, 3 November 2016 [8.3]. 16 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [13.9]. 17 For examples of cases simultaneously invoking such provisions, see El Hassy v. Libya, CCPR/C/ 91/D/1422/2005, 24 October 2007 [6.2] [8]; Aboussedra et al. v. Libya, CCPR/C/100/D/1751/ 2008, 25 October 2010 [7.2] [7.10]; Aouali et al. v. Algeria, CCPR/C/112/D/2132/2012 18 October 2013 [7.4] [7.14]. See also section ‘Enforced Disappearance’, below. 18 Atachahua v. Peru, CCPR/C/56/D/540/1993, 25 March 1996 [8.7]. 19 For an inadmissible claim that the denial of access to healthcare could have exposed the author to cruel, inhuman or degrading treatment, see Toussaint v. Canada, CCPR/C/123/D/2348/2014, 24 July 2018 [10.10].

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Non-derogable and Absolute Character Article 7 is among those provisions which are non-derogable in times of public emergency.20 It is also one of the few Covenant provisions that allows no limitation. No justification or extenuating circumstances may be invoked to excuse conduct falling within its prohibitions.21 Violation therefore depends upon the threshold for torture or CIDT. Decisions which import notions of justification’ and ‘proportionality’ must be read with a degree of caution. Where the alleged CIDT subsists in the excessive use of force or restraint the question may arise whether the impugned conduct is ‘justified’. The Committee began its assessment of Article 7 and 10(1) claims in Cabal and Bertran v. Australia by noting that ‘the State party has provided justification for the treatment in question’. It concerned allegations of ill-treatment of remand prisoners who were constrained by twelve-link shackles (seventeen-link shackles when transported) and were cavity-searched after each visit. These practices followed a detailed individualised assessment by the authorities and took account of the authors’ flight risk; that in the past they had evaded arrest by using false travel and identity documents; they had access to considerable financial resources; they had made payments to other prisoners; and prison intelligence had reported other prisoners offering to assist escape in return for financial gain. The authors were not singled out for searches, which were carried out in a manner designed to minimise the embarrassment to them, and only to ensure the safety and security of the prison. In these circumstances the Committee found there was no violation of Article 7 (or Article 10(1)).22

20 Article 4(2). See, e.g., Baruani v. Congo, CCPR/C/110/D/1890/2009, 27 March 2014 [6.4]. The non derogable character of Art. 7 has been emphasised repeatedly in the Committee’s review of State reports: e.g., UK A/34/40 (1979) 235; Algeria A/47/40 (1992) 299; Niger CCPR A/48/40 (1993) 423; Israel CCPR/CO/78/ISR (2003) 12; Yemen CCPR/CO/84/YEM (2005) 13; Canada CCPR/C/CAN/CO/5 (2006) 15; Belize CCPR/C/BLZ/CO/1 (2013) 14; Kyrgyzstan CCPR/C/ KGZ/CO/2 (2014) 10; Madagascar CCPR/C/MDG/CO/4 (2017) 9. Sumner Twiss makes the case for such an approach in ‘Torture, Justification, and Human Rights: Toward an Absolute Proscription’, (2007) 29(2) Hum. Rts Q., p. 346. 21 GC 20 [3]. The point was emphatically made in Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.10] (‘the prohibition on torture, including as expressed in article 7 of the Covenant, is an absolute one that is not subject to countervailing considerations’). See also Weisz v. Uruguay, CCPR/C/OP/1 at 57 (1984), 29 October 1980 [14]; Motta v. Uruguay, Communication 11/1977, CCPR/C/OP/1 at 54 (1984), 29 July 1980 [15]; Bergos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981 [11.6]; Jamshidian v. Belarus, CCPR/C/121/D/2471/2014, 8 November 2017 [9.5] (Art. 7 and the principle of non refoulement are absolute in nature). See also Convention Against Torture, Art. 2(3); Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2 (CAT GC 2) [5]. 22 Cabal and Bertran v. Australia, CCPR/C/78/D/1020/2001, 7 August 2003 [8.2].

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Among the factors which caused the Committee to find an Article 7 violation in Gamarra v. Paraguay, in police action against a peaceful blockade, was that ‘the use of force . . . was disproportionate’.23 Proportionality was also a facet of the Committee’s decision in V.P. v. Russian Federation in response to the alleged use of excessive force on the arrest of the author. The Committee ‘took into account’ the way in which this was defended as proportional and necessary to prevent him tampering with evidence (by swallowing money received as a bribe), and it concluded that the claim was not substantiated.24 The concepts of justification and proportionality in these instances are consistent with the position that Article 7 is not susceptible to limitation. The justified and proportionate use of force or constraint according to the circumstances did not reach the threshold of torture or CIDT. There are parallels with the threshold at which the right to personal security (also not susceptible to limitation) is violated i.e. when officials ‘unjustifiably inflict bodily injury’ or there is ‘unjustifiable use of force in law enforcement’.25 Chapter Outline This chapter begins by examining the State’s obligation to ensure ‘effective’ protection against violation of Article 7. It involves a strict duty to investigate Article 7 and related allegations, followed by rigorous prosecution of those who encourage, order, tolerate or perpetuate prohibited acts, and requires redress for victims. Amnesties and any culture of impunity are incompatible with those requirements. Article 7 also obligates States not to expose individuals to torture or CIDT by returning them to another country by extradition, expulsion or refoulement. Practical safeguards against torture and ill-treatment include the need to establish an independent, adequately resourced, legally constituted complaints body; comprehensive training for law enforcement personnel and those 23 Gamarra v. Paraguay, CCPR/C/104/D/1829/2008 [7.4]. See also Pustovoit v. Ukraine, CCPR/C/ 110/D/1405/2005 (2014), 20 March 2013 [9.3] (State failure to demonstrate that placing a criminal defendant in a metal cage with his hands handcuffed behind his back during his trial was necessary for the purpose of security or the administration of justice); Zinsou v. Benin, CCPR/C/111/D/2055/2011, 18 July 2014 [7.5] (a general security justification was not sufficient for the author to be handcuffed and wear a prison jacket at his hearing without further proof that this was necessary). 24 V.P. v. Russian Federation, CCPR/C/104/D/1627/2007, 26 March 2012 [8.3] [8.4]. On the excessive use of force, see, e.g., Amarasinghe v. Sri Lanka, CCPR/C/120/D/2209/2012, 13 July 2017 [6.7] (grave injuries from beating by police when arrested); Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.2] (disproportionate use of force by special police units during security operations); Slovakia CCPR/C/SVK/CO/4 (2016) 28; Hungary CCPR/C/ HUN/CO/6 (2018) 35, 36; and in migrant identification procedures Italy CCPR/C/ITA/CO/6 (2017) 20. 25 General Comment No. 35, Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/ C/GC/35 [9], citing Leehong v. Jamaica, CCPR/C/66/D/613/1995, 12 August 1999, discussed more fully in the chapter on Article 9: Liberty and Security, section ‘Article 9(1): The Right to Personal Security’.

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with prison responsibilities; the preservation of access to places of detention by human rights monitors; data collection on investigations, prosecutions, convictions, sanctions and compensation; and tools for medical staff and lawyers to assist in recognising and documenting symptoms of torture for forensic purposes. This chapter then moves on to consider the meaning of the terms ‘torture’ and ‘cruel, inhuman or degrading treatment’, with detailed exemplification. A separate section is devoted to ‘cruel, inhuman or degrading punishment’, in particular life sentences, corporal punishment and capital punishment. The chapter closes with the rarely encountered prohibition against ‘medical or scientific experimentation’ and discussion on non-consensual medical treatment. Many aspects of Articles 7 and 10(1) are inseparable insofar as they concern the treatment of detainees and prisoners, and the reader is referred to two related sections in the chapter on Article 10: ‘Treatment of Detainees and Prisoners in Violation of Articles 10(1) and/or Article 7’, which attempts to discern patterns in Article 7 and 10(1) findings (considering separately ‘torture’, ‘cruel and inhuman treatment’, and ‘degrading treatment’, and particular forms of detention (enforced disappearance, incommunicado detention, solitary confinement and immigration detention)); and ‘Conditions of Detention and Privations’, which considers Article 10(1) and Article 7 incompatibility through various adverse environmental aspects of detention or particular deprivations (overcrowding, insanitary conditions, cell size, out-of-cell time, lack of opportunity for exercise or recreation, access to natural light or ventilation, exposure to wet and extremes of temperature, lack of sleeping amenities, inadequate access to a lawyer, lack of medical treatment, vulnerable individuals, insufficient food and water, denial of religious requirements, loss of voting rights, restrictions on communications, and interference with privacy).

T H E STAT E’ S O BL IG ATIO N O F ‘E FF EC TI VE PROT ECTION ’ Ensure ‘Effective’ Protection against Public and Private Sources By reading Article 7 together with Article 2 the obligation to ‘ensure’ effective protection requires legislative, administrative, judicial and other measures on the part of each Contracting State to prevent and punish acts of torture or CIDT in any territory under its jurisdiction,26 whether inflicted by those acting in their official capacity, or otherwise.27 Certain forms of ill-treatment emanate principally from 26 GC 20 [8]. See also El Abani v. Libya, CCPR/C/99/D/1640/2007, 26 July 2010, para. 7.10; Zarzi v. Algeria, CCPR/C/101/D/1780/2008, 22 March 2011 [7.10]. 27 GC 20 [2]; Chen v. Netherlands, CCPR/C/99/D/1609/2007, 26 July 2010 [6.4] (acts attributed to a non State actor were inadmissible only because the author did not demonstrate that the Chinese authorities were unable or unwilling to protect him from such private acts). See also USA CCPR/ C/USA/CO/4 (2014) 12 (ensure that the law provides for penalties commensurate with the

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private sources, the most obvious being domestic violence and FGM, which are discussed individually below. The obligation to ensure effective protection extends also to acts of foreign officials on a State’s territory performed with its consent or acquiescence.28 The domestic law measures to give effect to that obligation are discussed further in the section Implementation, below. Duty to Investigate Complaints alleging violation of any element of Article 7 must be investigated promptly,29 thoroughly30 and impartially31 by competent authorities. This derives from the obligation in Article 2(3) to ensure an effective remedy for violation, which is otherwise denied, as recognised both in General Comment 20 on Article 7, and General Comment 31 on Article 2 (the nature of the general legal obligation imposed on States).32 A failure to investigate may result in a finding under Article 7, read in conjunction with Article 2(3) for the victim, even if there is insufficient evidence to support a finding of direct violation of Article 7.33 It is also implicit in

28 29

30

31 32

33

gravity of such acts, whether committed by public officials or other persons acting on behalf of the State or by private persons); Yemen CCPR/C/YEM/CO/5 (2012) 24 (conduct full and thorough investigations into cases of killings, arrest, detention, torture and ill treatment perpe trated by non State actors, and initiate criminal proceedings and sentence those responsible). Alzery v. Sweden, CCPR/C/88/D/1416/2005, 25 October 2006. For instances of lengthy investigation, see Katsaris v. Greece, CCPR/C/105/D/1558/2007, 18 July 2012 [9.3], [10.7] (official rulings were first made more than three years after the complaint, in violation of Art. 2(3), read in conjunction with Art. 7); and undue delay, see Monika v. Cameroon, CCPR/C/112/D/1965/2010, 21 October 2014 [12.4] [12.5] (violation of Art. 7, read alone, and in conjunction with Art. 2(3) when there was no explanation why an investigation was commenced more than eight years after the complaint). For examples of investigations which were not thorough, see Fuenzalida v. Ecuador, CCPR/C/ 57/D/480/1991 (1996), 12 July 1996 [9.4] (no evidence that an incident in which the author suffered a bullet wound was investigated by the court; the lack of investigation was a violation of Arts 7 and 10); Gamarra v. Paraguay, CCPR/C/104/D/1829/2008, 22 March 2012 [7.5] (inves tigation was interrupted without justification, in violation of Art. 2(3), read in conjunction with Art. 7); Katsaris v. Greece, CCPR/C/105/D/1558/2007, 18 July 2012 [10.7] (discrepancies on essential facts (not explained by later enquiry, which cast doubt on the thoroughness and impartiality of the investigation), and no forensic examination in spite of allegations of physical ill treatment (one of the officers present was not even questioned)); Suleimenov v. Kazakhstan, CCPR/C/119/D/2146/2012, 21 March 2017 [8.4] (questioning of one of the investigators, who denied any wrongdoing against the author, insufficient). See also Freemantle v. Jamaica, CCPR/ C/68/D/625/1995 (2000), 12 July 1996 [7.2] (the fact that the perpetrators no longer worked in the prison where alleged events occurred in no way absolved the State from its obligations). Saidarov et al. v. Kyrgyzstan, CCPR/C/119/D/2359/2014, 17 March 2017 [7.2]; Abromchik v. Belarus, CCPR/C/122/D/2228/2012, 20 March 2018 [10.4]. GC 20 [14]; General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 [15], [18]; and among many decisions, e.g., Abdiev v. Kyrgyzstan, CCPR/C/124/D/2892/2016, 17 October 2018 [7.8] (failure of the authorities to effectively investigate the author’s allegations deprived him of the possibility of seeking compensation for the alleged torture). E.g., Amirov v. Russian Federation, CCPR/C/95/D/1447/2006, 2 April 2009 [11.6]; Khilal Avadanov v. Azerbaijan, CCPR/C/100/D/1633/2007, 25 October 2010 [9.5].

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OP1 Article 4(2) that the State has the duty to investigate in good faith all allegations of violation made against it and its authorities, and to furnish to the Committee the information available to it.34 It arises no matter the circumstances in which the allegations are made, even in court,35 and in a state of emergency.36 The duty to investigate concerns all elements of Article 7.37 Similar principles apply also to the alleged violation of Article 10(1).38 The manner in which a case should be investigated is in principle for the national investigating authorities to decide, but it must not be arbitrary,39 the investigative rigour applied must do justice to the severity of allegations,40 and where appropriate may necessitate exhumation of the victim’s body.41 It is especially difficult to justify a failure to investigate when the perpetrator has been identified.42 Where there is a discriminatory failure by the State to promptly, thoroughly and impartially investigate claims, a finding may result under Article 2(3) in conjunction with Article 7; and under Articles 2(1) and 26.43 The Committee has often raised the standard of investigation of allegations in periodic reviews, questioning the efficacy of investigative 34 E.g., Bleier v. Uruguay, Communication No. R.7/30, Supp. No. 40 (A/37/40) at 130 (1982), 29 March 1982 [13.3]; Zheikov v. Russian Federation, CCPR/C/86/D/889/1999, 17 March 2006 [7.2]; Bousseloub v. Algeria, CCPR/C/111/D/1974/2010, 23 July 2014 [7.3]. 35 E.g., Agabekov v. Uzbekistan, CCPR/C/89/D/1071/2002, 16 March 2006 [7.2] (when a complaint was made in court about torture the presiding judge refused to order an inquiry or request a medical examination); Uteev v. Uzbekistan, CCPR/C/91/D/1150/2003, 26 October 2007 [2.4], [7.2] (retrac tion in court of initial confessions made during investigation, with explanation that they were obtained under beatings and torture); Khoroshenko v. Russian Federation, 1304/2004, CCPR/C/ 101/D/1304/2004, 29 March 2011 [5.9], [9.4] [9.5] (complaints ignored by the prosecution and the courts); Krasnov v. Kyrgyzstan, 1402/2005, CCPR/C/101/D/1402/2005, 29 March 2011 [8.2] [8.3] (the alleged perpetrators were identified in court); Kovaleva et al. v. Belarus, CCPR/C/106/D/ 2120/2011, 29 October 2012 [11.2] (self incriminating statements retracted during court proceedings). 36 Traore v. Côte d’Ivoire, CCPR/C/103/D/1759/2008, 31 October 2011 [7.6]. 37 Katsaris v. Greece, 1558/2007, CCPR/C/105/D/1558/2007, 18 July 2012 [10.4]. 38 Blanco v. Nicaragua, CCPR/C/51/D/328/1988, 20 July 1994 [10.6] (violation of Arts 7 and 10(1) are extremely serious, requiring prompt investigation by States); see also the chapter on Article 10: Treatment of Those Deprived of Their Liberty, section ‘Implementation’. 39 Kouidis v. Greece, CCPR/C/86/D/1070/2002, 28 March 2006 [7.4]. 40 Puertas v. Spain, CCPR/C/107/D/1945/2010 27 March 2013 [8.6] (the closure of the case at the examination stage, which prevented the holding of the trial (juicio oral), did not meet the requirements or thoroughness for allegations of torture); Kalamiotis v. Greece, CCPR/C/93/D/ 1486/2006, 24 July 2008 [7.2] (the only inquiry was a preliminary police investigation, informal in nature). 41 Eshonov v. Uzbekistan, CCPR/C/99/D/1225/2003, 22 July 2010 [9.7]. See also Spain CCPR/C/ ESP/CO/6 (2015) 21 (concern at shortcomings and deficiencies in the regulation of search, exhumation and identification procedures). 42 Vicente et al. v. Colombia, CCPR/C/60/D/612/1995, 29 July 1997 [8.8]. 43 E.g., Katsaris v. Greece, CCPR/C/105/D/1558/2007, 18 July 2012 [10.7] (three investigations were ineptly conducted of a complaint made by the author about a police search of his Romani family and their car, at gunpoint, during which the author was kicked and family members were beaten, and there was racially motivated humiliation, as well as physical and psychological ill treated while detained).

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procedures,44 and recommending full and impartial investigation, prosecution and compensation.45 It has recommended that medical examinations be undertaken automatically following allegations of abuse,46 routinely for those in pre-trial detention to ensure that no physical abuse occurs,47 that they be impartial, comprehensive and conducted in accordance with the 1990 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol),48 and that in the case of any death in custody a thorough autopsy be performed.49 Prosecution There should be rigorous prosecution of those who encourage, order, tolerate or perpetuate prohibited acts,50 and redress for victims,51 beyond interim relief.52 The criminal investigation and prosecution of those found responsible are necessary in cases of alleged violation of Article 7 (and also of Article 6).53 It is for the State to prosecute, try and punish the culprits,54 including of course where 44 E.g., Korea CCPR/C/79/Add.114 (1999) 14 (the small percentage of cases leading to action against officials called into question the credibility of existing procedures of investigation); Colombia CCPR/CO/80/COL (2004) 15 (lack of appropriate diligence in investigation); Kazakhstan CCPR/C/KAZ/CO/1 (2011) 14 (increased reports of torture and low rate of inves tigation of allegations); Mongolia CCPR/C/MNG/CO/5 (2011) 13 (exemption from investiga tion of anyone ‘who acted under orders’); Paraguay CCPR/C/PRY/CO/3 (2013) 23 (lack of impartiality and independence in investigations); Uzbekistan CCPR/C/UZB/CO/4 (2015) 14 (judges failed to order investigations into allegations of forced confessions even when signs of torture were visible). 45 E.g., Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 14; Iran CCPR/C/IRN/CO/3 (2011) 15; Kenya CCPR/C/KEN/CO/3 (2012) 11; Colombia CCPR/C/COL/CO/7 (2016) 29; Gambia CCPR/C/ GMB/CO/2 (2018) 34. The Committee has on occasion recommended appointing an indepen dent commission of inquiry to investigate particular events: Maldives CCPR/C/MDV/CO/1 (2012) 14. 46 Tunisia CCPR/C/79/Add.43 (1994) 16. See also Jordan CCPR/C/JOR/CO/4 (2010) 9. 47 E.g., Uzbekistan CCPR/CO/71/UZB (2001) 7; Kyrgyzstan CCPR/CO/69/KGZ (2000) 7. 48 HR/P/PT/8/Rev.1 (2004); Moldova CCPR/C/MDA/CO/3 (2016) 22; Honduras CCPR/C/HND/ CO/2 (2017) 25; Mongolia CCPR/C/MNG/CO/6 (2017) 22; El Salvador CCPR/C/SLV/CO/7 (2018) 24. 49 Tunisia CCPR/C/79/Add.43 (1994) 16. 50 GC 20 [13]. 51 GC 7 [1]; GC 20 [14]. 52 Chaulagain v. Nepal, CCPR/C/112/D/2018/2010, 28 October 2014 [11.6] (the interim relief granted did not constitute an adequate remedy commensurate with the serious violations inflicted). 53 GC 31 [18] (failure to bring to justice perpetrators could in and of itself give rise to a separate violation); Sathasivam and Saraswathi v. Sri Lanka, CCPR/C/93/D/1436/2005, 8 July 2008 [6.4] (the Attorney General’s decision to initiate disciplinary rather than criminal proceedings in the case of death in custody was clearly arbitrary and amounted to a denial of justice, in violation of Arts 6 and 7 to properly investigate the death and torture of the victim and take appropriate action against those found guilty; also in breach of Art. 2(3)); Krasovskaya v. Belarus, CCPR/C/104/D/ 1820/2008, 26 March 2012 [8.3] (numerous complaints filed by the authors have not led to the arrest or prosecution of a single perpetrator). 54 E.g., Grioua v. Algeria, CCPR/C/90/D/1327/2004, 10 July 2007 [9]; Kimouche v. Algeria, CCPR/C/90/D/1328/2004, 10 July 2007 [2.8]; Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011 [7.4].

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private sources are responsible.55 The Covenant, however, does not provide a right for individuals to require criminal prosecution of another person.56 Redress Remedies for victims of violation must be effective.57 Expedition and effectiveness are particularly important to the adjudication of cases of torture.58 When a confession of guilt had been extracted under torture in circumstances to which Article 14 applies, and not adequately met by a State investigation, the Committee has often made findings of violation of Article 7, read together with Article 14(3)(g),59 or it has found separate violations of Article 7 and relevant provisions of Article 14, including Article 14(3)(g).60 The appropriate remedy could include a reduction of the sentence and compensation for the accused,61 or if the death penalty has been carried out, compensation for family members.62 Burden of Proof of Violation Where allegations of torture or ill-treatment are corroborated by credible evidence, and where further clarification depends on information that is solely in the hands of the State, the Committee frequently considers the allegations substantiated in the absence of satisfactory evidence or convincing explanations to the contrary.63 Suitable evidence in support of allegations includes medical reports 55 GC 31 [8]; Krasovskaya v. Belarus, CCPR/C/104/D/1820/2008, 26 March 2012 [8.3]. 56 E.g., H.C.M.A. v. The Netherlands, CCPR/C/35/D/213/1986, 30 March 1989 [11.6]; S.E. v. Argentina, CCPR/C/38/D/275/1988, 26 March 1990 [5.5]; Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.3]. 57 E.g., Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.5] (domestic court processes were prolonged and remedies ineffective, in violation of Art. 2(3), in connection with Art. 7); Banda v. Sri Lanka, CCPR/C/91/D/1426/2005, 26 October 2007 [7.4] (proceedings still pending after five years). 58 E.g., Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.5]; Banda v. Sri Lanka, 26 October 2007 [7.4]; Kalamiotis v. Greece, CCPR/C/93/D/1486/2006, 24 July 2008 [7.3]; Gunaratna v. Sri Lanka, CCPR/C/95/D/1432/2005, 17 March 2009 [8.3]. See also GC 20 [14] (complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective). 59 E.g., Tarasova v. Uzbekistan, CCPR/C/88/D/1057/2002, 20 October 2006 [7.1]; Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108 & 1121/2002, 27 March 2007 [7.2]; Chikunova v. Uzbekistan, CCPR/C/89/D/1043/2002, 16 March 2007 [7.2]; Khudayberganov v. Uzbekistan, CCPR/C/90/D/1140/2002, 24 July 2007 [8.2]. 60 E.g., Strakhov and Fayzullaev v. Uzbekistan, CCPR/C/90/D/1017/2001&1066/2002, 20 July 2007 [8.2]; Tulayganov v. Uzbekistan, CCPR/C/90/D/1041/2001, 20 July 2007 [8.2]; Ashurov v. Tajikistan, CCPR/C/89/D/1348/2005, 20 March 2007 [6.2] [6.3]; Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.5]; Batanov v. Russian Federation, CCPR/C/120/D/2532/2015, 28 July 2017 [11.2]. 61 Tarasova v. Uzbekistan, CCPR/C/88/D/1057/2002, 20 October 2006 [9]. 62 Chikunova v. Uzbekistan, CCPR/C/89/D/1043/2002, 16 March 2007 [9]. 63 This is part of the constant jurisprudence of the Committee, but for an early example, see Bleier v. Uruguay, Communication No. R.7/30, Supp. No. 40 (A/37/40) at 130 (1982) [13.3], and more

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indicating physical and mental torture,64 the description of events before a judge,65 or at trial,66 and in the case of disappearance the circumstances in which it occurred.67 The burden of proof cannot rest on the author of a communication alone, because frequently only the State has access to the relevant information.68 The Committee may base its findings of torture on those of other reputable tribunals, on official certifications which report on the cause of death, such as autopsy results and death certificates,69 and on conclusions reached in other Committee decisions.70 Where any individual deprived of liberty receives injuries it is incumbent on the State to provide a plausible explanation of how these occurred and to produce evidence refuting allegations of maltreatment.71 Given the difficulty of proving the existence of torture and ill-treatment when these do not leave physical marks, investigation should be exhaustive.72

64 65 66

67 68

69

70 71 72

recently Khadzhiev v. Turkmenistan, CCPR/C/113/D/2079/2011, 1 April 2015 [8.3]. For an example of a claim not sufficiently substantiated, see Ambaryan v. Kyrgyzstan, CCPR/C/120/ D/2162/201228 July 2017 [8.4]. Afuson v. Cameroon, CCPR/C/89/D/1353/2005, 19 March 2007 [6.1]. De Gomez v. Peru, CCPR/C/78/D/981/2001, 22 July 2003 [7.1]. Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002 (2003), 6 November 2003 [7.4] (the allegation of torture was made during the trial but was neither recorded nor acted upon). See also Rubio et al. v. Colombia, CCPR/C/OP/2 at 192 (1990), 2 November 1987 [1.3], [10.5] (before a military judge the author retracted his ‘confession’ and denounced the death threats received earlier concerning his parents, but his new declaration disappeared from his dossier); Avadanov v. Azerbaijan, CCPR/C/100/D/1633/2007, 25 October 2010 [9.4] [9.5] (the author provided a detailed description of his and his wife’s alleged ill treatment by the police, with evidence corroborating continued physical and psychological effects of the torture, but the State claimed the author never made these complaints). Coronel et al. v. Colombia, CCPR/C/76/D/778/1997, 24 October 2002 [9.5]. Telitsin v. Russian Federation, CCPR/C/80/D/888/1999, 29 March 2004 [7.5]; Katsaris v. Greece, CCPR/C/105/D/1558/2007, 18 July 2012 [10.4]. See also Saidov v. Tajikistan, CCPR/C/81/D/964/2001, 8 July 2004 [6.2] (due weight given to the author’s claim when the State failed to indicate how the court investigated the allegations, and did not provide copies of any medical reports); Khomidov v. Tajikistan, CCPR/C/81/D/1117/2002, 29 July 2004 [6.2] (due weight was given to the author’s allegations when they were detailed and particularised and when the State Party’s explanations were not satisfactory); Puertas v. Spain, CCPR/C/107/D/1945/ 2010, 27 March 2013 [8.6] (all physical or psychological damage inflicted on a person in detention and particularly under the incommunicado regime gives rise to an important presumption of fact, since the burden of proof must not rest on the presumed victim). In Bautista de Arellana v. Colombia, CCPR/C/55/D/563/1993, 27 October 1995 [6.8], [8.4], the Committee relied on a judgment of the Administrative Tribunal of Cundinamarca to the effect that Nydia Bautista was subjected to torture prior to her assassination; in Arhuaco v. Colombia, CCPR/C/56/D/612/1995, 14 March 1996 [8.4], the results of the autopsies, and also death certificates, revealed that indigenous leaders had been tortured prior to being shot in the head. E.g., Estrella v. Uruguay, Communication No. 74/1980, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [8.4] [8.5], [9.1], referring to conditions at Libertad prison recently established in Schweizer v. Uruguay, CCPR/C/OP/2 at 90 (1990), 12 October 1982 [11], [17.5]. Siragev v. Uzbekistan, CCPR/C/85/D/907/2000, 1 November 2005 [6.2]; Zheikov v. Russian Federation, CCPR/C/86/D/889/1999, 17 March 2006 [7.2]. Puertas v. Spain, CCPR/C/107/D/1945/2010, 27 March 2013 [8.6].

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Amnesties, Impunity and Statute of Limitations Amnesties are generally incompatible with a State’s obligations,73 and the Committee has recommended ending the practice of granting amnesties to those convicted of torture or ill-treatment.74 Given the imperative of accountability of those responsible for serious human rights violations, it is also concerned whenever culprits appear to enjoy impunity,75 particularly law enforcement officers,76 or where there is a systematic lack of effective investigation and prosecution.77 The risk of impunity is exacerbated by any lack of independence in the investigation of implicated law enforcement officials,78 by obstacles to the filing of complaints,79 a fear of retaliation or intimidation if complaints are made,80 and ineffective protection of witnesses.81 A number of countries attracted criticism for applying a limitation period that was not appropriate to the gravity of crimes of torture and ill-treatment, but the Committee has more recently adopted a stricter stance opposing statutes of limitation for such crimes in principle.82

73 GC 20 [15], cited, e.g., in Chile CCPR/C/CHL/CO/5 (2007) 5; Rodríguez v. Uruguay, CCPR/C/ 51/D/322/1988, 19 July 1994 [12.3] [12.4] (an amnesty programme effectively excluded the possibility of investigation into past human rights abuses and thereby prevented the State from discharging its responsibility to provide effective remedies to the victims of those abuses; it also contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations). See also Guezout v. Algeria, CCPR/C/105/D/1753/ 2008, 19 July 2012 [8.2]; Belamrania v. Algeria, CCPR/C/118/D/2157/2012, 27 October 2016 [6.4]; El Boathi v. Algeria, CCPR/C/119/D/2259/2013, 17 March 2017 [7.2] (the State Party may not invoke the Charter for Peace and National Reconciliation against those who invoke provi sions of the Covenant). 74 Uzbekistan CCPR/C/UZB/CO/4 (2015) 13; Benin CCPR/C/BEN/CO/2 (2015) 22. See also Kazakhstan CCPR/C/KAZ/CO/2 (2016) 23; Guatemala CCPR/C/GTM/CO/4 (2018) 17; Lebanon CCPR/C/LBN/CO/3 (2018) 23. See also the chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘Article 2(3): Remedies’, ‘Duty to Investigate’. 75 On impunity see also the chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘Article 2(2): Laws and Other Measures to give Effect to Covenant Rights’ and ‘Article 2 as a Tool for Changing Deficient Domestic Laws’; and as a root cause of the prevalence of torture, see the report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, A/65/273 (2010). 76 Central African Republic CCPR/C/CAF/CO/2 (2006) 12. 77 Russian Federation CCPR/C/RUS/CO/6 (2009) 14 (reports of torture and ill treatment, enforced disappearance, arbitrary arrest, extrajudicial killing and secret detention in Chechnya and other parts of the north Caucasus committed by the military, security services and other State agents). See also Mali CCPR/CO/77/MLI (2003) 15. 78 Bulgaria CCPR/C/BGR/CO/3 (2011) 8; Benin CCPR/C/BEN/CO/2 (2015) 22. 79 Burundi CPR/C/BDI/CO/2 (2014) 14. See also Kenya CCPR/CO/83/KEN (2005) 18 (forms for the filing of complaints (so called ‘P3 forms’) can be obtained only from the police themselves). 80 Uzbekistan CCPR/CO/71/UZB (2001) 27; Sri Lanka CCPR CCPR/CO/79/LKA (2003) 9. 81 Suriname CCPR/C/SUR/CO/3 (2015) 22. See also Cyprus CCPR/C/79/Add.88 (1998) 19; Pakistan CCPR/C/PAK/CO/1 (2017) 20. 82 E.g., Croatia CCPR/C/HRV/CO/2 (2009) 10(f); Chile CCPR/C/CHL/CO/6 (2014) 8; Jordan CCPR/C/JOR/CO/5 (2017) 17; Madagascar CCPR/C/MDG/CO/4 (2017) 29; Belarus CCPR/C/

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Obligations towards Detainees and Prisoners Responsible authorities are bound to ensure that any place of detention is free from equipment liable to be misused, and that there is in place the regular systematic review of interrogation rules, instructions, methods and practices, as well as other arrangements for the custody and treatment of those subjected to any form of arrest, detention or imprisonment. There should also be transparency by public recognition of the names of those detained and their places of detention, as well as the names of those responsible for their detention (recorded in a register available to those concerned, including relatives and friends). Measures directed at the detainee include prompt and regular access by doctors and lawyers and, under appropriate supervision when the investigation so requires, to family members.83 Instruction and training is also recommended for anyone involved in the custody or treatment of anyone detained, including enforcement personnel, medical personnel and police officers.84 The time and place of all interrogations should be recorded, together with the names of all those present, and must kept available for both judicial and administrative proceedings.85 Appropriate measures of protection for detainees should have regard to the 2016 Nelson Mandela Rules mentioned throughout the chapter on Article 10.86 Obligations on Expulsion or Extradition Extradition as such is outside the scope of application of the Covenant.87 It is an important means of cooperation in the administration of criminal justice, which requires that safe havens should not be provided for those who seek to evade a fair trial for criminal offences, or who escape after a fair trial has occurred.88 A State’s responsibility may still be engaged by the consequences of extradition. States must not expose individuals to the danger of torture or CIDT by returning them to another country by extradition, expulsion or refoulement.89 This principle is not subject to any balancing with considerations of national security or the type of criminal conduct of which an individual is accused or suspected.90 In individual communications it is for the author to establish that there is ‘a real risk of treatment contrary to Article 7 as a necessary and foreseeable consequence

83 86 87 88 89 90

BLR/CO/5 (2018) 30; Lebanon CCPR/C/LBN/CO/3 (2018) 27; Lao CCPR/C/LAO/CO/1 (2018) 24. GC 7 [1]; GC 20 [11]. 84 GC 20 [10]. 85 GC 20 [11], [12]. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules, Resolution, adopted by the General Assembly, 8 January 2016, A/RES/70/175. M.A. v. Italy, Communication No. 117/1981, Supp. No. 40 (A/39/40) at 190 (1984) [13.4]: ‘There is no provision of the Covenant making it unlawful for a State party to seek extradition of a person from another country’. Cox v. Canada, CCPR/C/52/D/539/19930, CCPR/C/52/D/539/1993, [10.3]. For an examination of non refoulement across treaties, see Cornelis Wolfram Wouters, International Legal Standards for the Protection from Refoulement (Intersentia, 2009). Maksudov et al. v. Kyrgyzstan, CCPR/C/93/D/1461, 1462, 1476 & 1477/2006, 16 July 2008 [12.4].

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of’ their removal,91 put more frequently and simply as ‘a real risk’ in the receiving State of ‘torture or other ill-treatment’,92 or ‘irreparable harm’.93 Important weight should be given to the State’s assessment, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice,94 and it is generally for States to review or evaluate facts and evidence in order to determine the existence of such danger.95 The risk must be personal, and there is a high threshold in providing substantial grounds to establish that a real risk of irreparable harm exists.96 Accordingly, all relevant facts and circumstances

91 Hamida v. Canada, CCPR/C/98/D/1544/2007, 18 March 2010 [8.7]. For examples of claims which failed to show sufficiently why the decisions were contrary to this standard, see Singh v. Canada, CCPR/C/86/D/1315/2004, 30 March 2006 [6.3] (asylum application rejected on the basis of lack of credibility and implausibility of testimony and supporting evidence); X v. Denmark, CCPR/C/112/D/2186/2012, 22 October 2014 [7.3] [7.5] (failure to identify any irregularity in the decision making process, or any risk factor that the authorities did not take properly into account); P.T. v. Denmark, CCPR/C/113/D/2272/2013, 1 April 2015 [7.3] [7.4] (lack of evidence of the author’s affiliation with the Liberation Tigers of Tamil Eelam, or that the Sri Lanka authorities would be looking for him). 92 E.g., Alzery v. Sweden, CCPR/C/88/D/1416/2005, 25 October 2006 [11.3] [11.5]: ‘a real risk of torture or other ill treatment in the receiving State’; A.R.J. v. Australia, Communication 692/ 1996, CCPR/C/89/D/1234/2003, 8 July 1997 [6.9]: ‘a real risk (that is, a necessary and foresee able consequence) of a violation of his rights under the Covenant’; G.T. v. Australia, CCPR/C/61/ D/706/1996, 4 November 1997 [8.2] [8.4]: ‘there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction’; ‘a real risk is to be deducted (sic) from the intent of the country to which the person concerned is to be deported, as well as from the pattern of conduct shown by the country in similar cases’. For examples of claims which failed to show sufficiently why the decisions were contrary to this standard, see Lin v. Australia, CCPR/C/107/ D/1957/2010, 21 March 2013 [9.2] [9.4] (at most the author’s practice of Falon Gong was of private and limited scope (which was unchallenged) without raising any suspicion of the Chinese authorities, and he was able to leave the country without any hindrance); J.D. v. Denmark, CCPR/ C/118/D/2204/2012, 26 October 2016 [11.2] (although affiliated with Falun Gong the author had become interested in Christianity during her stay in Denmark and was considering being baptised). 93 GC 31 [12] (‘a real risk of irreparable harm’), cited, e.g., in Pillai et al. v. Canada, CCPR/C/101/D/ 1763/2008, 25 March 2011 [11.4]; Z v. Australia, CCPR/C/111/D/2049/2011, 18 July 2014 [9.3]. Cf. GC 20 [9]: ‘the danger of torture or cruel, inhuman or degrading treatment or punishment upon return’, cited, e.g., in X v. Sweden, CCPR/C/103/D/1833/2008, 1 November 2011 [9.2]. 94 P.T. v. Denmark, CCPR/C/113/D/2272/2013, 1 April 2015 [7.3]. 95 E.g., Pillai et al. v. Canada, 1763/2008, CCPR/C/101/D/1763/2008, 25 March 2011 [11.2]; X v. Sweden, CCPR/C/103/D/1833/2008, 1 November 2011 [9.2]; Thuraisamy v. Canada, CCPR/C/106/D/1912/2009, 31 October 2012 [7.4] (note the Individual Opinion of Mr Krister Thelin disputing the applicability of the ‘clearly arbitrary or a denial of justice’ exception in either Pillai or Thuraisamy). 96 E.g., X v. Denmark, CCPR/C/114/D/2389/2014, 22 July 2015 [7.6] (threshold met as the author’s membership and previous participation in Kurdish political groups presented a risk); Contreras v. Canada, CCPR/C/119/D/2613/2015, 27 March 2017 [8.10] (of particular relevance was that violence from gangs particularly affected victims and witnesses of crimes and that El Salvador would be unable to provide due protection to them); C.L. and Z.L. v. Denmark, CCPR/C/122/D/ 2753/2016, 26 March 2018 [8.7] (personal engagement in the pro democracy movement and previous experience of torture); K.H. v. Denmark, CCPR/C/123/D/2423/2014, 16 July 2018 [8.7] (failure to undertake individualised assessment of risk faced in Iran by a baptised convert to Christianity).

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must be considered,97 including the general human rights situation in the country to which the author is to be sent.98 The obligation on the State to undertake an individualised assessment precludes it from relying on general reports, which in practice often do not support the State party’s assessment.99 Credibility plays a justifiable role in this evaluation.100 However, State concerns about credibility must not result in insufficient weight being given to allegations of past mistreatment in the receiving country or the risk to the particular individual if returned. As a result of credibility issues due consideration was not given to such risk in Pillai et al. v. Canada in spite of the documented prevalence of torture in Sri Lanka against Tamils from the North;101 in M.I. v. Sweden in returning the author to Bangladesh where same-sex acts were forbidden and the author had already been persecuted for her sexual orientation;102 in X v. Sweden given the risks in Afghanistan where same-sex

97 E.g., Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, 1 November 2004 [11.3] [11.4] (assessment was limited to the author’s personal circumstances in Denmark, his risk of punish ment for the same offence for which he had been convicted in Denmark, and the existence of an amnesty for supporters of former President Amin); Khakdar v. Russian Federation, CCPR/C/ 112/D/2126/2011, 17 October 2014 [11.4] (insufficient analysis of the author’s claim as a former combatant of the pro Soviet regime who fought against the Mujahideen, that he would be at serious risk of a vigilante attack by the Taliban fighters and the fact that he had spent more than twenty years in the Russian Federation which would increase the risk to his life); Hamida v. Canada, CCPR/C/98/D/1544/2007, 18 March 2010 [8.5] [8.7] (much weight was given to the author’s refugee status and insufficient to the fact that he had been employed in the Tunisian police, then disciplined, detained and subjected to strict surveillance on account of his political dissent); Valetov v. Kazakhstan, CCPR/C/110/D/2104/2011, 17 March 2014 [14.5] (at the time of the author’s extradition there were credible public reports of widespread use of torture against detainees in Kyrgyzstan); Hashi v. Denmark, 28 July 2017 [9.10] (the authorities failed to take sufficient account of the fact that the author was previously not given any special care in Italian reception facilities for asylum seekers, even while pregnant, and had difficulties getting food and access to basic sanitary facilities). 98 Aarrass v. Spain, CCPR/C/111/D/2008/2010, 21 July 2014 [10.4] (insufficient attention to reliable reports that many individuals charged with terrorist related offences in Morocco (as the author was) had been held incommunicado and subjected to severe beatings and torture. See also Kaba v. Canada, CCPR/C/98/D/1465/2006, 25 March 2010 [10.2] (FGM was a common and widespread practice in Guinea, particularly among those like the author of the Malinke ethnic group, and those who practised it did so with impunity). 99 Y.A.A. and F.H.M. v. Denmark, CCPR/C/119/D/2681/2015, 10 March 2017 [7.9]. 100 E.g., A.A. v. Canada, CCPR/C/103/D/1819/2008, 31 October 2011 [7.8]; M.S. v. Denmark, CCPR/C/120/D/2601/2015, 27 July 2017 [9.3]. 101 Pillai et al. v. Canada, CCPR/C/101/D/1763/2008, 25 March 2011 [11.3] [11.4] (because the author’s speech was coherent and intelligent rather than confused the authorities took his difficulty in testifying as a matter of credibility, and avoided asking him any questions related to his alleged torture in detention). 102 M.I. v. Sweden, CCPR/C/108/D/2149/2012, 25 July 2013 [7.5] (authorities focused mainly on inconsistencies and ambiguities in the author’s account of specific supporting facts and failed to take into due consideration her mistreatment by the police because of her sexual orientation (including rape while in detention) in assessing the risk she would face if returned to Bangladesh, against a background of Criminal Code provisions forbidding homosexual acts). Cf. W.K. v. Canada, CCPR/C/122/D/2292/2013, 27 March 2018 [10.5] (authorities took into account reports of the persecution of homosexuals in Egypt).

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activities were punishable as Hudood crimes by a maximum sentence of death;103 and O.A. v. Denmark in returning a minor to Greece in spite of inadequate conditions of reception of migrant minors there.104 Physical evidence of torture should prompt authorities to undertake further analysis of the possible causes.105 In any event, the determination must be procedurally fair. As the Committee emphasised in Ahani v. Canada, ‘where one of the highest values protected by the Covenant, namely the right to be free from torture, is at stake, the closest scrutiny should be applied to the fairness of the procedure applied to determine whether an individual is at a substantial risk of torture’.106 The risk to which the author in X v. Demark would be exposed, if returned to Ethiopia, existed in the action he would take by way of conscientious objection to the mandatory draft, and the serious ill-treatment of draft evaders based on credible sources. The Committee found that Danish authorities failed to recognise his potential status as an individual subject to a real risk of treatment.107 Obligations of non-refoulement under Article 7, like those under Article 3 of the Convention Against Torture, do not affect the decisions of the competent national authorities concerning the grant or refusal of asylum, though States do have a responsibility to find appropriate solutions, whether legal (such as a temporary decision admitting the individual into the country) or political (seeking a third State willing to accept them, if coupled with an undertaking not to return or expel the individual).108 The existence of assurances, their content and the availability of enforcement mechanisms are all elements relevant to the overall determination of whether

103 X v. Sweden, CCPR/C/103/D/1833/2008, 1 November 2011 [9.3] [9.4] (the author changed his claim at a late stage in the asylum process, which undermined his credibility, out of reluctance to disclose his sexual orientation for fear of reprisal, and he did not earlier know that sexual orientation would be a valid ground for refugee status and asylum). 104 O.A. v. Denmark, CCPR/C/121/D/2770/2016, 7 November 2017 [8.12]. 105 Thuraisamy v. Canada, CCPR/C/106/D/1912/2009, 31 October 2012 [7.5] [7.7] (the autho rities failed to direct an expert opinion as to the causes and age of the scars observed on the author’s chest, and based their decision merely on inconsistencies that were not central to the allegation faced by him as an ethnic Tamil from the north of Sri Lanka); F. & G. v. Denmark, CCPR/C/119/D/2530/2015, 16 March 2017 [8.4] (the author should have been allowed a medical examination to afford him the opportunity to substantiate his claim). 106 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.6] (the author was not given the full materials on which the decision was based, the decision was not reasoned, and he had no opportunity to comment on it in writing). 107 X v. Demark, CCPR/C/110/D/2007/2010, 26 March 2014 [9.3]. See also Ch.H.O. v. Canada, CCPR/C/118/D/2195/2012, 11 March 2016; A.A. v. Denmark, CCPR/C/122/D/2595/2015, 22 March 2018 [7.6] (failure to demonstrate that a potential conviction for draft evasion and subsequent imprisonment in Egypt would amount to irreparable harm). 108 Aemei v. Switzerland, Committee Against Torture CAT/C/18/D/34/1995, 9 May 1997 [11].

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there is, in fact, a real risk of proscribed ill-treatment.109 At the very minimum, assurances should contain a monitoring mechanism and be supported by arrangements for effective implementation made outside the text of the assurances.110 Safeguards against Torture and Ill-treatment Practical safeguards against torture or ill-treatment include establishing and maintaining an independent, adequately resourced, national mechanism for the prevention of torture to oversee and investigate Article 7 complaints,111 and a system to monitor and inspect places of detention.112 Comprehensive training has also been frequently stressed for law enforcement officials, the armed forces and prison personnel to better acquaint them with basic human rights principles and norms,113 including through the Istanbul Protocol.114 That publication is particularly valuable in aiding doctors, lawyers and the judiciary in the task of recognising and documenting symptoms of torture for forensic purposes, especially when combined with effective access by lawyers, doctors and family members.115

109 Maksudov et al. v. Kyrgyzstan, CCPR/C/93/D/1461, 1462, 1476 & 1477/2006, 16 July 2008 [12.4] (assurances from Uzbekistan contained no concrete mechanism for their enforcement, and were insufficient). 110 Alzery v. Sweden, CCPR/C/88/D/1416/2005, 25 October 2006 [11.5]. On the use of diplomatic assurances, see also Sweden CCPR/C/SWE/CO/6 (2009) 16 (the more systematic the practice of torture or cruel, inhuman or degrading treatment, the less likely it will be that a real risk of such treatment can be avoided by diplomatic assurances, however stringent any agreed follow up procedure may be). 111 E.g., Armenia CCPR/C/ARM/CO/2 (2012) 14; Maldives CCPR/C/MDV/CO/1 (2012) 14; Angola CCPR/C/AGO/CO/1 (2013) 15; Bolivia CCPR/C/BOL/CO/3 (2013) 13; Latvia CCPR/C/LVA/CO/3 (2014) 12; Cambodia CCPR/C/KHM/CO/2 (2015) 13; Azerbaijan CCPR/C/AZ E/CO/4 (2016) 19; Moldova CCPR/C/MDA/CO/3 (2016) 22; Slovakia CCPR/ C/SVK/CO/4 (2016) 29. 112 E.g., Moldova CCPR/C/MDA/CO/3 (2016) 22; Swaziland CCPR/C/SWZ/CO/1 (2017) 32; Jordan CCPR/C/JOR/CO/5 (2017) 19; Turkmenistan CCPR/C/TKM/CO/2 (2017) 23; Sudan CCPR/C/SDN/CO/5 (2018) 42. 113 E.g., Iran CCPR/C/79/Add.25 (1993) 19; Spain CCPR/C/79/Add.61 (1996) 17; Togo CCPR/ CO/76/TGO (2002) 23; Angola CCPR/C/AGO/CO/1 (2013) 15; Latvia CCPR/C/LVA/CO/3 (2014) 12; Moldova CCPR/C/MDA/CO/3 (2016) 22; Slovakia CCPR/C/SVK/CO/4 (2016) 29. 114 E.g., Moldova CCPR/C/MDA/CO/3 (2016) 22; Slovakia CCPR/C/SVK/CO/4 (2016) 29; Liechtenstein CCPR/C/LIE/CO/2 (2017) 20; Swaziland CCPR/C/SWZ/CO/1 (2017) 33; Switzerland CCPR/C/CHE/CO/4 (2017) 32; Hungary CCPR/C/HUN/CO/6 (2018) 36. 115 Jason Payne James, Jonathan Beynon and Duarte Vieira offer a practical guide for those involved in monitoring detention conditions and investigating and preventing torture in Monitoring Detention, Custody, Torture and Ill treatment: A Practical Approach to Prevention and Documentation (CRC Press, 2017) (see especially ch. 6 for assessment of physical evidence of torture). For references to access by lawyers, doctors and family members, see Spain A/40/40 (1985) 484; Uzbekistan CCPR/CO/71/UZB (2001) 7; Tajikistan CCPR/C/ TJK/CO/2 (2013) 16; to family members and lawyers, see Hungary CCPR/CO/74/HUN (2002) 8; Mongolia CCPR/C/MNG/CO/6 (2017) 23; to family members only, see Botswana CCPR/C/ BWA/CO/1 (2008) 17; and medical care and lawyers, see Nepal CCPR/C/NPL/CO/2 (2014) 12.

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The Committee is also concerned whenever access is denied to places of detention to national116 or international human rights monitors.117 More generally, it has invited States to establish a system to collect data on the number of investigations, prosecutions, convictions, sanctions and of compensation granted to victims of torture or members of their families, and to report comprehensively to it with these figures.118

TO RTU R E Torture often occurs in detention, thereby enlivening the concurrent operation of Article 10(1). The chapter on Article 10: Treatment of Those Deprived of Their Liberty separately addresses Article 10 findings associated with Article 7 torture and ill-treatment in detention, and should be read in conjunction with this section. Definition of Torture The Committee has recommended that States adopt a definition of torture that covers all of the elements contained in Article 7 of the Covenant and Articles 1 and 4 of the Convention Against Torture.119 The definition in Article 1(1) of the Convention Against Torture covers acts and omissions of public officials causing severe pain or suffering (physical or mental), intentionally inflicted for the purposes of extracting information or a confession, or as discrimination, punishment, intimidation or coercion. This helps to identify the elements which distinguish torture from other treatment under Article 7, as Nowak suggests, particularly those of intent, purpose and intensity of severe pain.120 However, Article 7 applies more broadly than the Convention Against Torture both to public and private sources of torture, not just by public officials or others acting in an official capacity.121 The facts of most cases which resulted in findings which incorporate ‘torture’ are consistent with the definition in the Convention Against Torture, and span a wide range of conduct, with some recurrence in a number of countries afflicted by internal struggles and political tensions. Notable in particular

116 E.g., Moldova CCPR/C/MDA/CO/2 (2009) 10; Uzbekistan CCPR/C/UZB/CO/4 (2015) 18. See also Luxembourg A/41/40 (1986) 62. 117 E.g., Russian Federation CCPR/C/79/Add.54 (1995) 29; Turkmenistan CCPR/C/TKM/CO/1 (2012) 9. See also Tunisia CCPR/C/TUN/CO/5 (2008) 16. 118 E.g., Philippines CCPR/C/PHL/CO/4 (2012) 17; Austria CCPR/C/AUT/CO/4 (2007) 13. See also Colombia CCPR/C/COL/CO/6 (2010) 12. 119 See section ‘Implementation’, below. 120 Nowak, CCPR Commentary, p. 161. 121 See section ‘Ensure “Effective” Protection against Public and Private Sources’, above.

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periods have been Uruguay,122 Colombia,123 Bolivia,124 Zaire,125 Georgia,126 Tadjikistan127 and Nepal.128 The Committee has not attempted a clear distinction between ‘torture’ and ‘cruel and inhuman treatment’ beyond observing that the distinctions depend on the nature, purpose and severity of the treatment applied.129 In most cases such a distinction is avoided by findings of violation of ‘Article 7’,130 or that ‘the authors were subjected to torture and to cruel and inhuman treatment’,131 without further specification. The Committee has on occasion distinguished torture from other cruel, inhuman or degrading treatment or punishment when the facts warrant it, as illustrated by the following findings. Patterns of Torture Findings The Committee’s decision on occasion not to make findings of ‘torture’, even when seemingly available to it, may be because of the practicalities of finely distinguishing torture from cruel, inhuman or degrading treatment, or a certain hesitance to do so in undefended cases. In Hiber Conteris v. Uruguay the finding was that the victim suffered ‘severe ill-treatment’, even though the unrefuted allegations were that he was hanged by the wrists for ten days, he was subjected to burnings and repeated ‘submarino’, and his head was immersed in water fouled by blood, urine and vomit 122 E.g., Masserra et al. v. Uruguay, Communication No. R.1/5, Supp. No. 40 (A/34/40) at 124 (1979), 15 August 1979 [2], [10]; Motta v. Uruguay, Communication No. 11/1977, CCPR/C/ OP/1 at 54 (1984), 29 July 1980 [2], [16]; Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981 [2.3], [13]; Sendic v. Uruguay, Communication No. R.14/63, Supp. No. 40 (A/37/40) at 114 (1982), 28 October 1981 [16.2], [20]; Estrella v. Uruguay, Communication No. 74/1980, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [1.6], [8.3] [8.5], [9.1]; Gilboa v. Uruguay, Communication No. 147/1983, CCPR/C/OP/2 at 176 (1990), 1 November 1985 [4.3], [13.2], [14]; Rodríguez v. Uruguay, CCPR/C/51/D/322/1988, 19 July 1994 [2.1], [12.1]. 123 E.g., Joaquín David Herrera Rubio et al. v. Colombia, CCPR/C/OP/2 at 192 (1990), 2 November 1987 [1.2], [11]. 124 E.g., Peñarrieta et al. v. Bolivia, CCPR/C/OP/2 at 201 (1990), 2 November 1987 [1.3], [15.2], [16]. 125 E.g., Muteba v. Zaire, Communication No. 124/1982, Supp. No. 40 (A/39/40) at 182 (1984), 24 July 1984 [12]; Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993 [2.1], [6]. 126 E.g., Domukovsky et al. v. Georgia, Communications No. 623/1995, 624/1995, 626/1995, 627/ 1995, CCPR/C/62/D/623/1995, CCPR/C/62/D/624/1995, CCPR/C/62/D/626/1995, CCPR/C/ 62/D/627/1995, 6 April 1998 [18.6]. 127 E.g., Khalilova v. Tadjikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.2]. 128 E.g., Giri v. Nepal, CCPR/C/101/D/1761/2008, 24 March 2011 [2.5], [7.5] [7.6]. 129 GC 7 [2]; GC 20 [4]. 130 E.g., Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176 (1981), 29 July 1981 [2.3], [13]; Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993 [6]; Rodríguez v. Uruguay, CCPR/C/51/D/322/1988, 19 July 1994 [2.1], [12.1]; Marouf v. Algeria, CCPR/C/110/D/1889/2009, 21 March 2014 [7.5], [7.7]; Baruani v. Congo, CCPR/C/110/D/1890/2009, 27 March 2014 [6.4]. 131 E.g., Gilboa v. Uruguay, CCPR/C/OP/2 at 176 (1990), 1 November 1985 [14]; Peñarrieta et al. v. Bolivia, CCPR/C/OP/2 at 201 (1990), 2 November 1987 [1.3], [15.2], [16].

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almost to the point of his drowning.132 In Ashurov v. Tajikistan, in spite of accepting that the victim was beaten and subjected to torture by State investigators to extract a confession to armed robbery and that torture marks were visible, the Committee concluded only that the treatment was ‘in violation of article 7 of the Covenant’. The author’s unchallenged allegations were that over three days he was subjected to torture, he was deprived of food and sleep, was placed in handcuffs which were then attached to a battery, he was systematically beaten, and electric shocks were applied to his genitals and fingers.133 A relatively modest finding was also made in Kodirov v. Uzbekistan when the author claimed that her son was raped and subjected to torture while in police custody for the purpose of extracting a confession (he had to be hospitalised), and that investigators inflicted cuts all over his body. The Committee focused on the lack of adequate investigation into the allegations of ‘ill-treatment’ in finding a violation of Article 7, read together with Article 2. For the forced confession under torture it also made a finding under Article 7, read together with Article 14(3)(g).134 In some cases it may be possible to read too much into the phraseology of particular findings. It was perfectly clear that the Committee in Rodríguez v. Uruguay was making a finding of ‘torture’ when it referred nine times to the word ‘torture’ in its merits examination, even though that word appeared nowhere in the operative text (‘[b]earing in mind that the author’s allegations are substantiated, the Committee finds that the facts as submitted sustain a finding that the military regime in Uruguay violated article 7 of the Covenant’).135 On the whole the Committee does seem willing to identify the relevant violation as ‘torture’ where the circumstances allow,136 even if it is not always explicit about the factual basis for doing so. In Peñarrieta et al. v. Bolivia it concluded that the victim had been subject to both ‘torture and inhuman treatment’;137 and in Rubio et al. v. Colombia its Article 7 finding was that the author ‘was subjected to torture and illtreatment during his detention’.138 Separate recourse has to be made to the allegations to reveal the justification. Sometimes the Committee recites clearly the facts on which it bases its decision, as it did in in Minanga v. Zaire,139 in Mika Miha v. Equatorial Guinea140 and Domukovsky et al. v. Georgia.141 132 Conteris v. Uruguay, Communication No. 139/1983, Supp. No. 40 (A/40/40) at 196 (1985), 17 July 1985 [1.4], [10]. 133 Ashurov v. Tajikistan, CCPR/C/89/D/1348/2005, 20 March 2007 [2.2], [6.2]. 134 Kodirov v. Uzbekistan, CCPR/C/97/D/1284/2004, 20 October 2009 [9.2] [9.3]. 135 Rodríguez v. Uruguay, CCPR/C/51/D/322/1988, 19 July 1994 [2.1], [12.1] [12.3], [14]. 136 See section ‘Patterns of Torture Findings’, above. 137 E.g., Peñarrieta et al. v. Bolivia, CCPR/C/OP/2 at 201 (1990), 2 November 1987 [1.3], [15.2], [16]. 138 Rubio et al. v. Colombia, CCPR/C/OP/2 at 192 (1990), 2 November 1987 [1.2], [11]. 139 Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993 [5.3], [6]. 140 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990 (1994), 8 July 1994 [6.4]. 141 Domukovsky et al. v. Georgia, CCPR/C/62/D/626/1995, CCPR/C/62/D/627/1995, 6 April 1998 [18.6].

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Occasionally, the allegations do not appear to be complete yet are taken to be sufficient. In Mika Miha v. Equatorial Guinea the Committee concluded on the basis of detailed information provided by the author that he was subjected to torture while in prison, even though he did not specify the nature of the injuries sustained during torture.142 Article 14 Safeguards against Confessions under Torture Confessions under torture frequently give rise to findings under both Article 7 and Article 14(3)(g), which protects against being compelled to testify against oneself or to confess guilt.143 The threshold under Article 14(3)(g) is direct or indirect physical or undue psychological pressure with a view to obtaining a confession of guilt. The higher standard under Article 7 was met, for example, in Vasily Yuzepchuk v. Belarus, in physical and psychological pressure through being denied food, kept in solitary confinement for prolonged periods of time, and fed unknown pills and alcohol;144 in Grishkovtsov v. Belarus, in torture and illtreatment used to induce a confession which left the author ‘unable to move around by himself’ and with signs of ‘hyperaemia around his both wrists’;145 and in Samathanam v. Sri Lanka, in beatings, being forced to witness acts of torture against other inmates, and threats to arrest his wife, rape her and kill his child.146 The typical pattern is that the allegation of torture or ill-treatment is sufficiently detailed to be credible (in the description of events or in identifying the perpetrators), it is not met by a prompt inquiry or explanation, and the confession is selfevident.147 Sometimes photographic and other evidence is available to support the allegations.148 The Committee does not always examine the Article 14(3)(g) claim if findings under other provisions on the same facts provide sufficient vindication.149 142 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990 (1994), 8 July 1994 [2.4], [2.5], [6.4]. 143 See chapter on Article 14: Fair Trial Rights, section, ‘Article 14(3)(g): Rights against Self incrimination’. 144 Yuzepchuk v. Belarus, CCPR/C/112/D/1906/2009, 24 October 2014 [8.2]. 145 Grishkovtsov v. Belarus, CCPR/C/113/D/2013/2010, 1 April 2015 [2.5], [8.2]. 146 Samathanam v. Sri Lanka, CCPR/C/118/D/2412/2014, 28 October 2016 [6.3]. 147 E.g., Isaev and Karimov v. Uzbekistan, CCPR/C/95/D/1163/2003, 20 March 2009 [2.2], [9.2]; Dunaev v. Tajikistan, CCPR/C/95/D/1195/2003, 30 March 2009 [2.3], [6.7], [7.3]; Sattorov v. Tajikistan, CCPR/C/95/D/1200/2003, 30 March 2009 [2.10], [5.3], [7.4], [8.4]; Tolipkhuzhaev v. Uzbekistan, CCPR/C/96/D/1280/2004, 22 July 2009 [8.3]; Kirpo v. Tajikistan, CCPR/C/97/D/ 1401/2005, 27 October 2009 [6.2] [6.3]; Allaberdiev v. Uzbekistan, CCPR/C/119/D/2555/2015, 21 March 2017 [8.2]. 148 Bazarov v. Kyrgyzstan, CCPR/C/118/D/2187/2012, 21 October 2016 [6.2]. For evidence of court obstruction of allegations of confession under torture, see Tyan v. Kazakhstan, CCPR/C/ 119/D/2125/2011, 16 March 2017 [9.2] (the trial court did not consider the author’s allegations of torture, and prevented the author from speaking about it in front of the jury). 149 Ashirov v. Kyrgyzstan, CCPR/C/120/D/2435/2014, 28 July 2017 [7.5].

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The risk of being subjected to torture to confess guilt in the receiving country following expulsion or extradition may provide sufficient basis for resisting such procedures.150

C R U E L I N H U M A N O R D E G R A D IN G TR EATM ENT ‘Cruel, inhuman or degrading treatment’ differs from ‘torture’ for want of the elements of intention or purpose necessary for torture; or it entails pain or suffering which is less acute than the severity required for torture. Article 7 is broader than its counterpart in the European Convention by embracing ‘cruel’ treatment or punishment.151 In an early decision the Committee explained that ‘what constitutes inhuman or degrading treatment falling within the meaning of article 7 depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim’.152 Treatment in Detention and Conditions of Detention The Committee frequently makes findings under one or both of Articles 7 and 10(1) in response to claims concerning treatment in detention and conditions of detention. As explained in the Introduction above, the reader is referred for detailed discussion concerning such claims to two sections in the chapter on Article 10, ‘Treatment of Detainees and Prisoners in Violation of Articles 10(1) and/or Article 7’ and ‘Conditions of Detention and Privations’. Enforced Disappearance While the Covenant does not explicitly use the term ‘enforced disappearance’ in any of its provisions, it refers to a unique and integrated series of acts that represents continuing violation of various rights recognised in the Covenant,153 including Article 7.154 The deprivation of liberty, followed by refusal to 150 The claim in F.A. v. Russian Federation, CCPR/C/123/D/2189/2012, 27 July 2018 [9.4] was admissible but no violation on the facts. 151 Cf. European Convention Art. 3. For the migration of principles from the European Convention, see Antoine Buyse, ‘Echoes of Strasbourg in Geneva: the Influence of ECHR Anti Torture Jurisprudence on the United Nations Human Rights Committee’, (2016) 59 JYIL, p. 81. 152 Vuolanne v. Finland, Communication No. 265/1987, Supp. No. 40 (A/44/40) at 311 (1989) [9.2]. 153 For recent statements of this principle, see, e.g., Katwal v. Nepal, CCPR/C/113/D/2000/2010, 1 April 2015 [11.3]; Arab Millis v. Algeria, CCPR/C/122/D/2398/2014, 6 April 2018 [7.4]; Sharma et al. v. Nepal, CCPR/C/122/D/2364/2014, 6 April 2018 [9.5]. Ricardo Sunga reviewed the role of the Committee on Enforced Disappearances in promoting the objectives of that convention in ‘The Committee on Enforced Disappearances and Its Monitoring Procedures’, (2012) 17(1) Deakin L. Rev., p. 151. 154 E.g., Bousroual v. Algeria, CCPR/C/86/D/992/2001, 30 March 2006 [9.2]; Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 31 July 2003 [9.3] (adopting the definition of ‘enforced

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acknowledge the deprivation of liberty, or by concealing the fate of the disappeared person, denies the person the protection of the law and places the victim’s life at a serious and constant risk, for which the State is accountable.155 Enforced disappearance frequently gives rise to findings under Article 7, among them that it constitutes cruel and inhuman treatment.156 Article 10 findings are not always considered necessary.157 In addition to conspicuously violating Article 9,158 enforced disappearance often constitutes a grave threat to the right to life (Article 6),159 though the Committee shows some reticence in making Article 6 findings where authors hold out hope for that the victim is still alive.160 It is not open to the State to argue, as Algeria has in response to many claims, that cases of enforced disappearance must be looked at in the broader domestic socio-political and security environment when dealing, for example, with terrorism.161

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disappearance’ in Art. 7(2)(i) of the Rome Statute of the International Criminal Court). See also the definition in Art. 2 of International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006. E.g., Abushaala v. Libya, CCPR/C/107/D/1913/2009, 18 March 2013 [6.2]; Aouali et al. v. Algeria, CCPR/C/112/D/2132/2012, 18 October 2013 [7.4]; Marouf v. Algeria, CCPR/C/ 110/D/1889/2009, 21 March 2014 [7.4]; Al Daquel v. Libya, CCPR/C/111/D/1882/2009, 21 July 2014 [6.4]; Boudehane v. Algeria, CCPR/C/111/D/1924/2010, 24 July 2014 [8.4]. As to whether enforced disappearance may amount to torture, see Kirsten Anderson, ‘How Effective is the International Convention for the Protection of all Persons from Enforced Disappearance Likely to be in Holding Individuals Criminally Responsible for Acts of Enforced Disappearance?’, (2006) 7(2) Melb J. Int. L., p. 245. As to other elements of Art. 7, see Atachahua v. Peru, CCPR/C/56/D/540/1993, 25 March 1996 [8.5] (the abduction and disappearance of the victim and prevention of contact with her family and with the outside world constituted cruel and inhuman treatment). E.g., Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 31 July 2003 [9.7]; Dhakal v. Nepal, CCPR/ C/119/D/2185/2012, 17 March 2017 [11.7]; Neupane et al. v. Nepal, CCPR/C/120/D/2170/ 2012, 21 July 2017 [10.7]; Khelifati v. Algeria, CCPR/C/120/D/2267/2013, 28 July 2017 [6.6]; Boudjema v. Algeria, CCPR/C/121/D/2283/2013, 30 October 2017 [8.7]; Sharma v. Nepal, CCPR/C/122/D/2265/2013, 6 April 2018 [10.7]. See chapter on Article 9: Liberty and Security, section ‘“Arrest” and “Detention”’. See chapter on Article 6: The Right to Life, section ‘Enforced Disappearance’; e.g., Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 31 July 2003 [9.3]; Boucherf v. Algeria, CCPR/C/86/D/1196/ 2003, 30 March 2006 [9.2]; Bousroual v. Algeria, CCPR/C/86/D/992/2001, 30 March 2006 [9.2]; Madoui v. Algeria, CCPR/C/94/D/1495/2006, 28 October 2008 [7.2]; Sharma v. Nepal, CCPR/C/94/D/1469/2006, 28 October 2008 [7.4]; Il Khwildy v. Libya, CCPR/C/106/D/1804/ 2008, 1 November 2012 [7.4]. As observed by Marthe Lot Vermeulen, Enforced Disappearance: Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance (Utrecht University School of Law, School of Human Rights Research Series, Volume 51, 1979), p. 159. E.g., Guezout v. Algeria, CCPR/C/105/D/1753/2008, 19 July 2012 [8.2]; Mezine v. Algeria, CCPR/ C/106/D/1779/2008, 25 October 2012 [8.2]; Boudjemai v. Algeria, CCPR/C/107/D/1791/2008, 22 March 2013 [8.2]; Mechani v. Algeria, CCPR/C/107/D/1807/2008, 22 March 2013 [8.2]; Allioua and Kerouane v. Algeria, CCPR/C/112/D/2132/2012, 30 October 2014 [7.2]; Dehimi and Ayache v. Algeria, CCPR/C/112/D/2086/2011, 30 October 2014 [8.2]; Kroumi v. Algeria, CPR/C/112/D/2083/2011, 30 October 2014 [8.2].

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The obligation to investigate allegations of enforced disappearances and to bring the culprits to justice is not an obligation of result, but of means, and must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities of the State.162 It applies equally to disappearances attributable to a State and those initiated by forces independent of, or hostile to, a State.163 The incidence of enforced disappearance in some countries has been prolific, giving rise to grave concern on the part of the Committee in Concluding Observations at its persistence, with particular regard for the need for appropriate investigation, prosecution and punishment (without immunity) and, for the relatives of those missing, adequate reparation, including rehabilitation, satisfaction and guarantees of non-repetition.164 An aspect of implementation has been to require specific provision in domestic law punishing the crime of enforced disappearance in line with international standards.165 This phenomenon received singular attention in the 1993 Declaration on the Protection of All Persons from Enforced Disappearances,166 and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance,167 which took the Convention Against Torture as its model to create specific obligations in the event of acts of enforced disappearance, including bringing those responsible to justice, ensuring that enforced disappearance constitutes a criminal offence, inter-State cooperation in prosecution and extradition, minimum legal standards for those deprived of liberty, including judicial challenge, registers for those imprisoned, reparation and compensation for victims and those directly affected, and guarantees of non-repetition.168 162 Prutina et al. v. Bosnia and Herzegovina, CCPR/C/107/D/1917, 1918, 1925/2009 & 1953/ 2010, 28 March 2013 [9.5]; Rizvanović and Rizvanovic v. Bosnia and Herzegovina, CCPR/C/ 110/D/1997/2010, 21 March 2014 [9.5]; Durić v. Bosnia and Herzegovina, CCPR/C/111/D/ 1956/2010, 16 July 2014 [9.5]. 163 Durić v. Bosnia and Herzegovina, CCPR/C/111/D/1956/2010, 16 July 2014 [9.3]; Kožljak v. Bosnia and Herzegovina, CCPR/C/112/D/1970/2010, 28 October 2014 [9.3]. 164 A sample from the most recent years includes Colombia CCPR/C/COL/CO/7 (2016) 24, 25; Morocco CCPR/C/MAR/CO/6 (2016) 27; Bangladesh CCPR/C/BGD/CO/1 (2017) 19; Honduras CCPR/C/HND/CO/2 (2017) 22; Pakistan CCPR/C/PAK/CO/1 (2017) 20; Serbia CCPR/C/SRB/CO/3 (2017) 22; Thailand CCPR/C/THA/CO/2 (2017) 22; Turkmenistan CCPR/C/TKM/CO/2 (2017) 17; Algeria CCPR/C/DZA/CO/4 (2018) 30; El Salvador CCPR/ C/SLV/CO/7 (2018) 21; Lao CCPR/C/LAO/CO/1 (2018) 19; Lebanon CCPR/C/LBN/CO/3 (2018) 24; Sudan CCPR/C/SDN/CO/5 (2018) 44. 165 Mexico CCPR/C/MEX/CO/5 (2010) 12 (amend the Criminal Code with a view to including the crime of enforced disappearance as defined in international human rights instruments); Thailand CCPR/C/THA/CO/2 (2017) 20 (ensure that legislation prohibits enforced disappear ance); Belarus CCPR/C/BLR/CO/5 (2018) 26 (effectively criminalise enforced disappearance, in accordance with international standards). 166 Declaration on the Protection of All Persons from Enforced Disappearances, 12 February 1993, A/RES/47/133. 167 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, adopted by General Assembly Resolution 61/177 on 12 January 2007. 168 For discussion of the major advances introduced by the convention, see Nikolas Kyriakou, ‘The International Convention for the Protection of All Persons from Enforced Disappearance and Its

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Incommunicado Detention In numerous cases the Committee has recognised the degree of suffering involved in being held indefinitely without contact with the outside world, and recalled its recommendation in General Comment 20 that ‘[p]rovisions should also be made against incommunicado detention’.169 That incommunicado detention is directly linked to the requirements of ‘humanity’ and ‘respect for the inherent dignity of the human person’ was particularly clear in Muteba v. Zaire.170 In some instances the Committee has made dual findings under Articles 7 and 10. Against a very limited factual background, that the victim had been subjected to prolonged incommunicado detention (the only contact was when he received a visit from his wife after more than three years) in an unknown location, the Committee in El-Megreisi v. Libya treated him as the victim of torture and cruel and inhuman treatment, in violation of both Articles 7 and 10(1).171 It more commonly bases its findings of incommunicado detention on Article 10(1), separate from Article 7 findings in the same matter (e.g., concerning allegations of torture).172 Its reason for doing so is that Article 10 deals specifically with the situation of those deprived of their liberty, and encompasses for them the elements set out generally in Article 7.173 As to the threshold under Article 10(1), a period of two weeks’ incommunicado detention sufficed in Arutyunyan v. Uzbekistan,174 and in Masserra et al. v. Uruguay it was enough (also under Article 10) that the relevant authors were

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Contributions to International Human Rights Law, with Specific Reference to Extraordinary Rendition’, (2012) 13(1) Melb J. Int. L., p. 424. E.g., El Alwani v. Libya, CCPR/C/90/D/1295/2004, 11 July 2007 [6.5]; El Hassy v. Libya, CCPR/C/ 91/D/1422/2005, 24 October 2007 [6.2]; Benaziza v. Algeria, CCPR/C/99/D/1588/2007, 26 July 2010 [9.5]; Kulov v. Kyrgyzstan, CCPR/C/99/D/1369/2005, 26 July 2010 [8.2]; Benali v. Libya, CPR/C/106/D/1805/2008, 1 November 2012 [6.5]; Il Khwildy v. Libya, CCPR/C/106/D/ 1804/2008, 1 November 2012 [7.3]; Abushaala v. Libya, CCPR/C/107/D/1913/2009, 18 March 2013 [6.3]; Al Rabassi v. Libya, CCPR/C/111/D/1860/2009, 18 July 2014 [7.4]; Al Daquel v. Libya, CCPR/C/111/D/1882/2009, 21 July 2014 [6.5]; Boudehane v. Algeria, CCPR/C/111/D/1924/2010, 24 July 2014 [8.5]; Basnet v. Nepal, CCPR/C/112/D/2051/2011, 29 October 2014 [8.3]; Shikhmuradova v. Turkmenistan, CCPR/C/112/D/2069/2011, 17 October 2014 [6.4]; Ortikov v. Uzbekistan, CCPR/C/118/D/2317/2013, 26 October 2016 [10.2]. Muteba v. Zaire, Communication No. 124/1982 (25 March 1983), Supp. No. 40 (A/39/40) at 182 (1984), 24 July 1984 [12]. El Megreisi v. Libya, CCPR/C/50/D/440/1990, 23 March 1994 [5.4]. E.g., Conteris v. Uruguay, Communication No. 139/1983, Supp. No. 40 (A/40/40) at 196 (1985), 17 July 1985 [1.4], [10] (Art. 10(1) violation because the author was held incommuni cado for over three months); Peñarrieta et al. v. Bolivia, Communication No. 176/1984, CCPR/ C/OP/2 at 201 (1990), 2 November 1987 [1.3], [15.2], [16] (violation of Art. 10(1) because the authors were kept incommunicado for forty four days following their arrest); Boudehane v. Algeria, CCPR/C/111/D/1924/2010, 24 July 2014 [8.8]: ‘in view of the incommunicado detention . . . the Committee finds a violation of Art. 10(1)’. Arutyunyan v. Uzbekistan, CCPR/C/80/D/917/2000, 29 March 2004 [6.2]. Arutyunyan v. Uzbekistan, CCPR/C/80/D/917/2000, 29 March 2004 [6.2].

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denied the right to be visited by any family member.175 Denial of such visits is a serious matter, and in some cases may contribute to an Article 7 finding. For example, the Committee treated incommunicado detention as an Article 7 issue in McCallum v. South Africa when it lasted a month without access to a physician, a lawyer or his family, recalling that the total isolation of a detained or imprisoned person may amount to an act prohibited by Article 7.176 Incommunicado detention may also ‘as such’ violate Article 9(3).177 The Families of Victims of Violation In numerous cases the Committee has found a violation of Article 7 in the ‘anguish and distress’ caused to relatives of those subjected to disappearance, as a result of both their disappearance and the continued uncertainty concerning their fate and whereabouts.178 When families of disappeared persons have been obliged to have the family member declared dead in order to be eligible for compensation while the investigation is on-going the Committee has observed that this makes the availability of compensation dependent on a harmful process, and constitutes inhuman and degrading treatment in violation of Article 7 read alone and in conjunction with Article 2(3).179 175 Masserra et al. v. Uruguay, Communication No. R.1/5, Supp. No. 40 (A/34/40) at 124 (1979), 15 August 1979 [10(ii)]. 176 McCallum v. South Africa, CCPR/C/100/D/1818/2008, 25 October 2010 [6.5]. See also Marais v. Madagascar, Communication No. 49/1979, CCPR/C/OP/2 at 82, 24 March 1983 [17.4], [19] (violation of Arts 7 and 10(1) for incommunicado detention in a cell measuring l m × 2 m in the basement of the political police prison). 177 See chapter on Article 9: Liberty and Security, section ‘Shall be Brought Promptly Before a Judge’. 178 E.g., Quinteros v. Uruguay, Communication 107/1981, CCPR/C/OP/2 at 138 (1990), 21 July 1983 [14]; Atachahua v. Peru, CCPR/C/56/D/540/1993, 25 March 1996 [8.2]; Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 31 July 2003 [9.5]; Bousroual v. Algeria, CCPR/C/86/D/ 992/2001, 30 March 2006 [9.8]; Grioua v. Algeria, CCPR/C/90/D/1327/2004, 10 July 2007 [7.7]; El Alwani v. Libya, CCPR/C/90/D/1295/2004, 11 July 2007 [6.6]; El Hassy v. Libya, CCPR/C/91/D/1422/2005, 24 October 2007 [6.11]; Benaziza v. Algeria, CCPR/C/99/D/1588/ 2007, 26 July 2010 [9.6]; Benali v. Libya, CPR/C/106/D/1805/2008, 1 November 2012 [6.6]; Il Khwildy v. Libya, CCPR/C/106/D/1804/2008, 1 November 2012 [7.6]; Abushaala v. Libya, CCPR/C/107/D/1913/2009, 18 March 2013 [6.4]; Aouali et al. v. Algeria, CCPR/C/112/D/ 2132/2012 18 October 2013 [7.8]; Al Rabassi v. Libya, CCPR/C/111/D/1860/2009, 18 July 2014 [7.9]; Al Daquel v. Libya, CCPR/C/111/D/1882/2009, 21 July 2014 [6.7]; Boudehane v. Algeria, CCPR/C/111/D/1924/2010, 24 July 2014 [8.6]; Hmeed et al. v. Libya, CCPR/C/112/D/2046/2011, 17 October 2014 [6.5]; Shikhmuradova v. Turkmenistan, CCPR/C/ 112/D/2069/2011, 17 October 2014 [6.8]; Basnet v. Nepal, CCPR/C/112/D/2051/2011, 29 October 2014 [8.4]; Bhandari v. Nepal, CCPR/C/112/D/2031/2011, 29 October 2014 [8.6]; Boboev v. Tajikistan, CCPR/C/120/D/2173/2012, 19 July 2017 [9.7]; Bolakhe v. Nepal, 19 July 2018 [7.16]. 179 Durić v. Bosnia and Herzegovina, CCPR/C/111/D/1956/2010, 16 July 2014 [9.8] (at [9.6] the Committee also considered that authorities investigating enforced disappearances must give the families a timely opportunity to contribute their knowledge to the investigation, and that information regarding the progress of the investigation must be made promptly accessible to the families). See also Rizvanović v. Bosnia and Herzegovina, CCPR/C/110/D/1997/2010,

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In Lale and Blagojević v. Bosnia and Herzegovina the anguish and distress caused by the continuing uncertainty resulting from the authors not knowing where their mothers’ remains may be, and the impossibility of giving them a proper burial was a violation of Article 7, read in conjunction with Article 2(3).180 The obligation to provide the family of victims of disappearance with an effective remedy includes: (a) conducting a thorough and effective investigation into the disappearance of the victims; (b) providing their family with detailed information about the results of its investigation; (c) releasing the victims immediately if they are still being detained incommunicado; (d) in the event that the victims are deceased, handing over their remains to their family; (e) prosecuting, trying and punishing those responsible for the violations committed; and (f) providing adequate compensation to those family members who are authors of the communication for the violations suffered, and to the victims if they are still alive.181 Family members may also be the victims of violation, if forced to witness the death, torture or other ill-treatment of their relatives. Family members could not avoid observing the acts of torture at the family home which were the subject of Marouf v. Algeria.182 Similarly, when the father of a 17-year-old girl was forced to watch her extrajudicial execution in Chaulagain v. Nepal.183 In Titiahonjo v. Cameroon the author was a victim of violation of Article 7 when, during her husband’s arrest, she was pushed into the gutter and slapped while in an advanced state of pregnancy, she was not allowed to visit her husband and was ‘chased’ away when she visited the police station to give him food.184 In a number of cases involving the lack of information provided to relatives about an executed prisoner the Committee has based its Article 7 decision in the continued anguish and mental stress caused to them by the persisting uncertainty of the circumstances that led to the prisoner’s execution, as well as the location of the prisoner’s grave. In Kovaleva et al. v. Belarus the Committee accepted that the complete secrecy surrounding the fate of the prisoner or his whereabouts between the time his pardon was rejected and the moment family members were informed that the death sentence had been carried out, combined with the refusal to hand over the body for burial in accordance with the religious beliefs and practices of

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21 March 2014 [9.6]; Hero v. Bosnia and Herzegovina, CCPR/C/112/D/1966/2010, 28 October 2014 [9.7]. Lale and Blagojević v. Bosnia and Herzegovina, CCPR/C/119/D/2206/2012, 17 March 2017 [7.6]. Marouf v. Algeria, CCPR/C/110/D/1889/2009, 21 March 2014 [9]. See also Hero v. Bosnia and Herzegovina, CCPR/C/112/D/1966/2010, 28 October 2014 [11]. Marouf v. Algeria, CCPR/C/110/D/1889/2009, 21 March 2014 [7.6] [7.7]. Chaulagain v. Nepal, CCPR/C/112/D/2018/2010, 28 October 2014 [11.6]. Titiahonjo v. Cameroon, Communication No. 1186/2003, CCPR/C/91/D/1186/2003, 26 October 2007 [6.4].

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his family, had the effect of intimidating or punishing the family by intentionally leaving them in a state of uncertainty and mental distress. These elements, cumulatively, and the State’s subsequent persistent failure to notify them of the location of his grave, was inhuman treatment of the family members.185 For violations of Article 7 affecting condemned prisoners themselves, see the section ‘Capital Punishment’, below. Treatment at the Hands of Police and Security Forces at Home Ill-treatment by police or enforcement authorities often occurs at the home of the victim. García v. Colombia concerned the bungled execution of a search warrant when an armed search on the wrong house involved entry through the roof, and inflicting terror and verbal abuse on family members, including small children, and an accidental gunshot.186 In Aouali et al. v. Algeria in a politically motivated act in retaliation for the victim’s support for the Front islamique du salut (FIS) armed plain clothes officers searched the family home without a warrant and both the family farm and home were completely destroyed. Family members watched powerless as the house they had lived in for more than seventeen years was demolished, and their furniture and personal effects were destroyed by bulldozers, by order of State officials.187 Claims concerning forced eviction have met with better success under Article 17 than under Article 7.188 Physical and Mental Integrity In addition to protecting the dignity and physical integrity of the individual, the aim of Article 7 is to protect their mental integrity.189 Individual vulnerability as a result of mental illness can be decisive. In A.H.G. v. Canada the Committee found a violation of Article 7 in the deportation to Jamaica of a mentally ill person in need of special protection, who had lived in Canada for more than thirty years, since he was 18. He had been institutionalised 185 Kovaleva et al. v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012 [11.10]. For similar findings, see also Schedko v. Belarus, CCPR/C/77/D/886/1999, 3 April 2003 [10.2]; Staselovich v. Belarus, CCPR/C/77/D/887/1999, 3 April 2003 [9.2]; Khalilov v. Tajikistan, CCPR/C/83/D/ 973/2001, 30 March 2005 [7.7]; Aliboeva v. Tajikistan, CCPR/C/85/D/985/2001, 18 October 2005 [6.7]; Shukurova v. Tajikistan, CCPR/C/86/D/1044/2002, 17 March 2006 [8.7]; Ruzmetov v. Uzbekistan, CCPR/C/86/D/915/2000, 30 March 2006 [7.10]; Bazarov v. Uzbekistan, CCPR/C/87/D/959/2000, 14 July 2006 [8.5]. 186 García v. Colombia, CCPR/C/71/D/687/1996 (2001), 3 April 2001 [10.5]. 187 Aouali et al. v. Algeria, CCPR/C/109/D/1884/2009, 18 October 2013 [7.7] [7.8]. 188 E.g., Naidenova et al. v. Bulgaria, CCPR/C/106/D/2073/2011, 30 October 2012; ‘I Elpida’ v. Greece, CCPR/C/118/D/2242/2013, 3 November 2016 [11.5]; Yassin et al. v. Canada, CCPR/ C/120/D/2285/2013, 26 July 2017; B.Z. et al. v. Albania, CCPR/C/121/D/2837/2016, 8 November 2017. 189 A/2929 (1955) Ch.VI, p. 31 [13]: ‘The word “torture” in this article was understood to mean both mental and physical torture.’

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with paranoid schizophrenia for eighteen months and continued with outpatient treatment, but while homeless and not medicating consistently he suffered a psychotic relapse during which he committed a violent assault with a weapon, which led to his deportation. He successfully argued that his deportation, which brought about the abrupt withdrawal of the medical and family support on which he depended in his vulnerable position, constituted a violation of Article 7.190 In C. v. Australia the vulnerability of an Iranian citizen was occasioned by his mandatory immigration detention for several years before being granted refugee status, during which time, according to psychiatric evidence, his mental state deteriorated to a point where he suffered serious mental illness. His continued immigration detention, when the authorities were aware of his mental condition and failed to take the steps necessary to ameliorate its deterioration, was in violation of Article 7. Under direct influence of his mental illness he committed a series of crimes following his release, for which he was convicted and given a custodial sentence. His deportation, if carried out, would also have violated Article 7, because in Iran he would be unlikely to receive the necessary treatment for a mental illness, caused wholly or partly by his immigration detention in Australia.191 The lack of available treatment for the author’s illness in A.H.G. v. Canada was also strongly argued on the author’s behalf, but its precise impact in the Committee’s ultimate finding is not evident. In Williams v. Jamaica the Committee considered that a death row prisoner had been subjected to inhuman treatment when he did not receive any or adequate medical treatment for his mental condition. The authorities failed for two years to keep a promise to investigate his mental health and to forward the findings to the Committee, and also neglected to carry out a psychiatric examination which had been scheduled.192 As already noted, and particularly pronounced in the case of enforced disappearance, it is common for the Committee to make Article 7 findings in favour of relations of victims in the light of the mental anguish and distress caused to them. The Conduct of Investigations and Court Proceedings In some circumstances the conduct of investigations and court proceedings may itself constitute cruel and inhuman treatment. The Committee was faced with a claim in Obodzinsky v. Canada that the initiation and continuation of citizenship revocation proceedings would place considerable stress on someone with a heart condition, amounting to cruel and inhuman treatment. Its position was that there might be exceptional circumstances in which putting a person in poor health on trial could constitute cruel treatment incompatible with Article 7, for example, 190 A.H.G. v. Canada, CCPR/C/113/D/2091/2011, 25 March 2015 [10.4]. 191 C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.4] [8.5]. 192 Williams v. Jamaica, CCPR/C/61/D/609/1995, 4 November 1997 [6.5].

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where relatively minor justice or procedural issues were made to prevail over serious health risks. However, in that instance the proceedings were conducted primarily in writing without requiring the author’s presence, and had been provoked by serious allegations that the author had participated in the gravest crimes.193 L.N.P. v. Argentina resulted in an Article 7 finding in the physical and mental suffering to which a 13-year-old indigenous victim of a multiple rape was exposed as a result of being kept waiting in a state of distress by police, and subjected by medical authorities to painful and unnecessary investigation as to whether she was a virgin (when the attack required an anal examination), an issue given prominence in subsequent court proceedings, as further described in the chapters on Articles 17 and 24.194 X v. Sri Lanka concerned a 17-year-old Indian Tamil girl who was abducted and raped. The unduly prolonged prosecution of the suspects and the punishment of those held responsible fourteen years after the attack, and her treatment during the proceedings, when derogatory statements were made against her, contributed to her re-victimisation, in breach of Article 7 read alone, and in conjunction with Article 2(3), aggravated by the fact that she was a minor when she was raped.195 The defendant’s appearance at court on criminal charges may raise breaches of Article 7. Degrading treatment was found to be inflicted on the author in Pustovoit v. Ukraine by placing him in a metal cage with his hands handcuffed behind his back. The State failed to show that this was necessary (for security or the administration of justice), or that alternative arrangements could not have been made consistent with his human dignity and with the need to avoid presenting him to the court as a dangerous criminal.196 The Committee also found that obliging the author in Zinsou v. Benin to appear at his hearing handcuffed and wearing a jacket bearing the words ‘Cotonou Civil Prison’ was treatment incompatible with Article 7. He may well have experienced a feeling of humiliation over and above that associated with appearing in court (his appearance attracted jibes and ridicule from the gallery).197 However, simply requiring him to wear the jacket in prison when he had visitors was not a violation.

193 Obodzinsky v. Canada, CCPR/C/89/D/1124/2002, 19 March 2007 [9.2]. 194 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [3.2], [13.6]. See chapters on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Post Rape Questioning and Treatment’; Article 24: Protection Required for Children, section ‘Non discrimination (Articles 2 and 26)’. 195 X v. Sri Lanka, CCPR/C/120/D/2256/2013, 27 July 2017 [7.4]. 196 Pustovoit v. Ukraine, CCPR/C/110/D/1405/2005 (2014), 20 March 2013 [9.3] (violation of Art. 7 on account of the degrading treatment inflicted during the trial, and of Art. 7 in conjunction with Art. 14(1), on account of the degrading treatment which affected the fairness of his trial). 197 Zinsou v. Benin, CCPR/C/111/D/2055/2011, 18 July 2014 [7.2], [7.5] (note there was nothing to indicate this was intended to humiliate or belittle the author).

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Reproductive Rights (Denial of Abortion and Sterilisation) The unavailability of a pregnancy termination has been an Article 7 violation in diverse situations.198 In K.N.L.H. v. Peru the denial of a therapeutic abortion to a 17year-old girl who carried an anencephalic foetus to full term led to her deep depression which was entirely foreseen, and resulted from the distress of seeing her daughter’s marked deformities and knowing that the baby would die very soon. Not enabling her to benefit from a therapeutic abortion in these circumstances was the cause of the suffering she experienced.199 The author in L.M.R. v. Argentina was a young woman with permanent mental impairment and a mental age of between 8 and 10 years. She was pregnant as a result of a suspected rape, and was prevented from having a termination even though this was permitted within the terms of the criminal law. Her physical and mental suffering was made especially serious by her status as a young girl with a disability.200 The situations faced by the authors in Mellet v. Ireland and Whelan v. Ireland were similar to each other, and focused on the limited availability of abortion in Ireland when the woman’s life was in danger. The claims were in direct challenge of those laws, as the source of significant mental anguish (both are discussed further in the chapter on Article 17). Because of their medical conditions, the unborn child in each case would die in utero or shortly after birth, and the mothers were faced with the choice of continuing with a non-viable pregnancy, under conditions of considerable suffering, or travelling abroad for a termination, which they both did, with other significant adverse consequences for them. The Committee’s Article 7 finding in Mellet was supported by the following factors, which were put similarly in Whelan. The mother was a pregnant woman in a highly vulnerable position after learning that her wanted pregnancy was not viable, and her physical and mental anguish were exacerbated by not being able to continue receiving medical care and health insurance coverage under the Irish healthcare system; the alternative to continuing the non-viable pregnancy involved travelling abroad while carrying a dying foetus, at personal expense and separated from family support, and returning while not fully recovered; the shame and stigma associated with the criminalisation of abortion of a fatally ill foetus; having to leave the baby’s remains behind and later receive them unexpectedly by courier (in Whelan the mother had to leave the baby’s remains in 198 A State’s law and policy towards abortion raise important issues under Arts 3, 6, 7, 17 and 26: see in particular chapters on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Abortion’; Article 6: The Right to Life, sections ‘Right to Life in Particular Settings’, ‘Abortion’; Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Denial of Abortion Services’. 199 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003/Rev.1, 24 October 2005 [6.3], citing GC 20 [2] and [5]. 200 L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, 29 March 2011 [9.2]. See also L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [13.6].

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a foreign country); and the lack of necessary and appropriate post-abortion and bereavement care. The suffering was further aggravated by the obstacles she faced in receiving needed information about appropriate medical options from known and trusted medical providers.201 As to other reproductive rights, the Committee has expressed concern in reference to Articles 7 and 17 in instances where a husband’s authorisation is needed for sterilisation, or where sterilisation is required for those with a certain number of children, or those of a certain age.202 Sterilisation is an issue affecting men,203 children,204 minorities,205 those with disabilities206 and HIV.207 As a matter of concern under Articles 3, 7, 24 and 26 the Committee has raised questions in response to irreversible and invasive medical interventions for purposes of gender assignment in infants.208 Female Genital Mutilation FGM raises issues under Article 7, as reflected in General Comment 20,209 and by the statement in Kaba v. Canada that ‘there is no question that subjecting a woman 201 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.3] [7.6]; Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017 [7.3] [7.6]. 202 GC 28 [20]. 203 Switzerland CCPR/C/CHE/CO/3 (2009) 20 (reluctance to make reparation for forcible castra tions and sterilisations between 1960 and 1987). 204 Australia CCPR/C/AUS/CO/6 (2017) 23 (involuntary non therapeutic sterilisation of women and girls with intellectual disabilities and/or cognitive impairments). 205 Slovakia CCPR/CO/78/SVK (2003) 12 (reports of forced or coerced sterilisation of Roma women not properly answered); Slovakia CCPR/C/SVK/CO/3 (2011) 13 (narrow follow up investigation); Slovakia CCPR/C/SVK/CO/4 (2016) 24; Czech Republic CCPR/C/CZE/CO/2 (2007) 10 (Roma and other women subjected to sterilisation without their consent and without criminal prosecution of perpetrators); Czech Republic CCPR/C/CZE/CO/3 (2013) 11 (no broad compensation mechanism for victims who were forcibly sterilised); Peru CCPR/CO/70/PER (2000) 21 (reports of forced sterilisations, particularly of indigenous women in rural areas and women from the most vulnerable social sectors); Peru CCPR/C/PER/CO/5 (2013) 13 (victims had still not yet received reparation and the perpetrators not punished). 206 Japan CCPR/C/79/Add.102 (1998) 31 (no right of compensation for disabled women subjected to forced sterilisation); Lithuania CCPR/C/LTU/CO/3 (2012) 14 (court authority to authorise abortion and sterilisation to be performed on disabled women); Spain CCPR/C/ESP/CO/6 (2015) 10 (practice of forced sterilisation of those with disabilities); Lithuania CCPR/C/LTU/ CO/4 (2018) 13. 207 Namibia CCPR/C/NAM/CO/2 (2016) 11 (reparation not granted to all women subjected to forced or coerced sterilisation owing to their HIV positive status). 208 Australia CCPR/C/AUS/CO/6 (2017) 25 (concern that infants and children born with intersex variations were sometimes subject to irreversible and invasive medical interventions for purposes of gender assignment); Switzerland CCPR/C/CHE/CO/4 (2017) 24 (concern that the performance of surgical procedures on intersex children, causing physical and mental suffering, was still not strictly regulated). See also Australia CCPR/C/AUS/CO/6 (2017) 27 (concern that the delays and costs associated with obtaining the court authorisation for stage two hormone treatment for young people diagnosed with gender dysphoria may compromise the success of such treatment and cause them psychological harm). 209 GC 28 [11]: ‘In States parties where the practice of genital mutilation exists information on its extent and on measures to eliminate it should be provided. The information provided by States

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to genital mutilation amounts to treatment prohibited under article 7 of the Covenant’.210 In numerous Concluding Observations the Committee has characterised FGM as a ‘harmful’ practice, contrary to Articles 3 and 7, and (when involving children, as it generally does), Article 24. It has called for eradication of FGM through specific criminal prohibition,211 and targeted awareness-raising and education programmes,212 but the practice persists even where it is prohibited,213 and in some countries complaints, investigations and convictions are few.214 Other traditional practices which are harmful to women are mentioned in the chapter on Article 3.215 Sexual Violence The Article 7 aspects of sexual violence against women, are discussed in the chapter on Article 3.216

Domestic Violence Although domestic violence is covered by specialised international instruments,217 it is an issue under Articles 6 and 7 of the Covenant,218 where it

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parties on all these issues should include measures of protection, including legal remedies, for women whose rights under article 7 have been violated.’ Kaba v. Canada, CCPR/C/98/D/1465/2006, 25 March 2010 [10.1]. Senegal CCPR A/53/40 (1998) 61; Sudan CCPR/C/79/Add.85 (1997) 10; Benin CCPR/CO/82/ BEN (2004) 11; Sweden CCPR/C/SWE/CO/6 (2009) 9; Djibouti CCPR/C/DJI/CO/1 (2013) 8; Malawi CCPR/C/MWI/CO/1 (2014) 8; Mauritania CCPR/C/MRT/CO/1 (2013) 11; Iraq CCPR/ C/IRQ/CO/5 (2015) 15, 16; Liberia CCPR/C/LBR/CO/1 (2018) 22. Ethiopia CCPR/C/ETH/CO/1(2011) 10; Indonesia CCPR/C/IDN/CO/1 (2013) 12; Sierra Leone CCPR/C/SLE/CO/1 (2014) 12; Sudan CCPR/C/SDN/CO/4 (2014) 13; Iraq CCPR/C/IRQ/CO/5 (2015) 15, 16. Ghana CCPR/C/GHA/CO/1 (2016) 17; Switzerland CCPR/C/CHE/CO/4 (2017) 26. Cf. Burkina Faso CCPR/C/BFA/CO/1 (2016) 15 (polygamy permitted). Cameroon CCPR/C/CMR/CO/5 (2017) 19. Chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, sections ‘Cruel, Inhuman or Degrading Treatment’, ‘Other Forms of Violence against Women’. Chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Cruel, Inhuman or Degrading Treatment’, ‘Sexual Violence (including Rape)’. CEDAW, 18 December 1979, UNTS vol. 1249, p. 13; Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104. Honduras CCPR/C/HND/CO/1(2006) 7 (domestic ill treatment a recurrent practice); Portugal CCPR/C/PRT/CO/4 (2012) 12 (unreported domestic violence due to traditional societal atti tudes); Chile CCPR/C/CHL/CO/6 (2014) 16 (the offence of ‘habitual ill treatment’ created a procedural obstacle for victims who could not readily file a direct complaint in cases of psychological violence); Chad CCPR/C/TCD/CO/2 (2014) 10 (need to facilitate domestic violence complaints and protect women from any reprisals and social disapproval); Albania CCPR/C/ALB/CO/2 (2013) 11 (ineffective police investigation into complaints of domestic violence resulted in impunity of perpetrators); Namibia CCPR/C/NAM/CO/2 (2016) 23 (‘pas sion killings’).

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involves children also Article 24,219 and in cases of violence against women (including marital or other forms of rape)220 it is a matter of gender inequality under Article 3.221

Economic and Social Causes The drafting discussion on Article 7 indicates that it was not intended to apply to degrading situations which might be due to general economic and social factors.222 However, successful Article 7 claims were made in R.A.A. and Z. M. v. Denmark, when resisting deportation, because of the precarious socio-economic situation the authors would face if returned to Bulgaria, given the lack of access to financial help or social assistance, in the light of the hardship and destitution which they already experienced there. Similarly, in Rezaifar v. Denmark, when a minor child with a heart condition would be exposed to exceptional hardship and destitution if returned to Italy. The State conceded that the concept of protection includes a certain social and economic element since asylum seekers must be treated in accordance with basic human standards.223

C R U E L , I N H U M AN O R D E G RA D I N G P U N I S H M E N T The standards applicable to cruel inhuman or degrading treatment above serve as a guide to what constitutes cruel inhuman or degrading punishment. The term ‘degrading’ is not often applied by the Committee to either limb of Article 7,224 but it has observed that for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail other elements in the case of custodial punishment beyond the mere fact of deprivation of liberty.225 The 219 Mongolia CCPR/C/MNG/CO/6 (2017) 17; Romania CCPR/C/ROU/CO/5 (2017) 23; Lithuania CCPR/C/LTU/CO/4 (2018) 29. 220 Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 13 (no incrimination of marital rape); Swaziland CCPR/C/SWZ/CO/1 (2017) 26; Norway CCPR/C/NOR/CO/7 (2018) 14. 221 See chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, sections ‘Violence against Women, including Domestic Violence’, ‘Sexual Violence (including Rape)’. 222 A/2929 (1955) Ch.VI, p. 31 [13]. In the context of the European Convention, see Antonio Cassese, ‘Can the Notion of Inhuman and Degrading Treatment Be Applied to Socio Economic Conditions?’ in A. Cassese (ed.), The Human Dimension of International Law: Selected Papers (Oxford University Press, 2008), p. 332. 223 R.A.A. and Z.M. v. Denmark, CCPR/C/118/D/2608/2015, 28 October 2016 [7.2], [7.7]; Rezaifar v. Denmark, CCPR/C/119/D/2512/2014, 10 March 2017 [8.8]. 224 Chapter on Article 10: Treatment of Those Deprived of Their Liberty, section ‘Article 7 “Degrading Treatment” and its Coincidence with Article 10(1)’. 225 Vuolanne v. Finland, Communication No. 265/1987, Supp. No. 40 (A/44/40) at 311 (1989) [9.2] (no violation of Arts 7 or 10 in ten days of close arrest, i.e., confinement in the guardhouse without service duties for being absent without leave from military service).

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manifestly degrading nature of the punishment in Pryce v. Jamaica, discussed below in the context of corporal punishment and in McCallum v. South Africa referred to in the chapter on Article 10, was not singled out in the more generalised Article 7 finding of violation.226 The most common examples of cruel, inhuman or degrading punishment concern life sentences with no prospect of release, corporal punishment and capital punishment. Life Sentences The incompatibility with Articles 7 and 10 of life sentences has occasionally been asserted in OP1 decisions in the context of extradition.227 Weiss v. Austria was a claim that an 845-year sentence imposed in absentia in the United States without opportunity for release until at least 711 years had been served was an ‘exceptional and grotesque punishment’ in violation of Article 7, that it was ‘inhuman’, amounting to the most serious form of incarceration short of actual torture, and a ‘clear and irreversible’ breach of Article 10(1) because of its excessive length and the absence of any possibility of release within a lifetime or of any appeal. The Committee did not answer the claim as framed, but instead noted that the conviction and sentence had not yet become final, as the author would be re-sentenced following extradition.228 The author in Esposito v. Spain was sentenced in Italy in absentia to life imprisonment for murder. He objected that Spain granted the extradition request without insisting that, first, any custodial sentence should not exceed thirty years, and, secondly, that the conditions in which it was to be served must not amount to inhuman and degrading punishment. The Committee’s response (in finding the claim inadmissible) was that the extraditing State generally bears no Covenant responsibility for violations that occur under the receiving State’s jurisdiction, and cannot be required to guarantee the rights of a person in another jurisdiction, subject to the responsibility the sending State has for the necessary and foreseeable consequence of its decisions affecting those under its jurisdiction. It could not be said that the necessary and foreseeable consequence of extradition was to subject him to treatment that violated the Covenant.229 226 See chapter on Article 10: Treatment of Those Deprived of Their Liberty, section ‘Article 7 “Degrading Treatment” and its Coincidence with Article 10(1)’. 227 Cf. the compatibility of ‘whole life sentences’ with the European Convention: Hutchinson v. United Kingdom [GC], App. No. 57592/08, ECtHR Judgment of 17 January 2017 [72]. 228 Weiss v. Austria, CCPR/C/77/D/1086/2002, 3 April 2003 [9.4] [9.5]. 229 Esposito v. Spain, CCPR/C/89/D/1359/2005, 20 March 2007 [7.5]. See also the Individual Opinion by Mr Rajsoomer Lallah (concurring) in Teesdale v. Trinidad and Tobago, CCPR/C/ 74/D/677/1996, 1 April 2002, on whether a 75 year term of imprisonment would meet the standards required by Art. 10(1) and (3).

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Article 37(a) of the Convention on the Rights of the Child provides that neither capital punishment nor life imprisonment without possibility of release may be imposed for offences committed by those under 18. In Blessington and Elliot v. Australia the Committee’s deliberations under Articles 7 and 10 focused on the prospect of release in finding a violation of Article 7, read together with Articles 10(3) and 24, in life sentences imposed for murder, abduction and rape. The mischief lay in the lengthy prescribed period before which they could apply for release on parole, the restrictive conditions for release and the fact that they were minors at the time they committed the offences. Release should not be a mere theoretical possibility and any review should be a thorough one, allowing domestic authorities to evaluate concrete progress made towards rehabilitation and the justification for continued detention, taking account of the person’s age when committing the offence. Under the sentencing regime as it then stood, the prospect of release was extremely remote, aggravated by a ‘never to be released’ recommendation made by the sentencing judge. If it ever occurred it would only be for reasons of the impending death or physical incapacitation of the authors, rather than based on the principles of reformation and social rehabilitation required by Article 10(3).230 There was nothing to suggest that rehabilitation would not succeed for these authors relying, for instance, on psychological and psychiatric assessments of them.231 Corporal Punishment General Comment 20 confirmed that Article 7 extends to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure, and it emphasised the need to protect children, pupils and patients in teaching and medical institutions.232 Irrespective of the nature of the crime that is to be punished or the permissibility of corporal punishment under domestic law, it is the consistent view of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment. This principle has been applied in the case of whipping

230 Noting also General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 10 April 1992, adopted at the Forty fourth Session of the Human Rights Committee (GC 21) [10]. 231 Blessington and Elliot v. Australia, CCPR/C/112/D/1968/2010, 22 October 2014 [7.7] [7.12]. It was said (at [5.5]) to be common ground that sentencing children to life without the possibility of release was cruel and inhuman when imposed on a child because: (a) child offenders have a lower culpability than adult offenders; (b) children have greater prospects for rehabilitation; and (c) life sentences impact disproportionately on children relative to adults. For restrictive legal conditions for granting clemency to persons sentenced to life imprisonment, see Hungary CCPR/C/HUN/CO/6 (2018) 39. 232 GC 20 [5]. See also CRC, General Comment No. 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment, 2 March 2007, CRC/C/GC/8 [16] [29].

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with the tamarind switch (six,233 ten234 and twelve strokes).235 An additional Article 7 finding was made in Pryce v. Jamaica owing to the manner in which the sentence was executed in a prison. The prisoner was blindfolded and ordered to drop his trousers and underpants; his feet were lifted and placed in slots in the floor in front of a barrel that was lying on its side; his arms were drawn forward so that his body was lying across the barrel; a warder placed the author’s penis into a slot cut out in the side of the barrel; his wrists and ankles were strapped to the platform; a doctor and about twenty-five prison warders were present.236 When examining State reports the Committee has often expressed its concern at punishments in the form of amputation of limbs,237 whipping,238 flogging239 and stoning,240 as well as at corporal punishment in penal institutions,241 within the judicial sphere242 and against children, within the family and in schools,243 in daycare and other supervised settings.244 233 Higginson v. Jamaica, CCPR/C/74/D/792/1998, 28 March 2002 [4.6] (concurrent sentences of five, ten and seven years’ imprisonment with hard labour, and six strokes of the tamarind switch for illegal possession of a firearm, rape and robbery). 234 Osbourne v. Jamaica, CCPR/C/68/D/759/1997, 13 April 2000 [2.1], [9.1] (fifteen years’ imprisonment with hard labour and ten strokes of the tamarind switch for illegal possession of firearm, robbery and wounding with intent). 235 Sooklal v. Trinidad and Tobago, CCPR/C/73/D/928/2000, 25 October 2001 [4.6] (twelve strokes with the birch, as well as fifty years of concurrent sentences, equivalent to a sentence of twenty years after remission). 236 Pryce v. Jamaica, CCPR/C/80/D/793/1998, 15 March 2004 [2.4], [3.5], [6.2] (four years’ hard labour and six strokes of the tamarind switch for an attack on the mother of his girlfriend which left her crippled). The sentence was carried out in the same manner in Osbourne v. Jamaica, but no such separate claim or finding was made. 237 Sudan CCPR/C/79/Add.85 (1997) 9; Libya CCPR/C/LBY/CO/4 (2007) 16; Iran CCPR/C/IRN/ CO/3 (2011) 16; Yemen CCPR/C/YEM/CO/5 (2012) 20; Sudan CCPR/C/SDN/CO/5 (2018) 35. 238 Australia A/38/40 (1983) 144; Yemen CCPR A/50/40 (1995) 256; Grenada CCPR/C/GRD/CO/ 1 (2009) 11. 239 Sudan CCPR/C/79/Add.85 (1997) 9; Yemen CCPR/CO/84/YEM (2005) 16; Libya CCPR/C/ LBY/CO/4 (2007) 16; Grenada CCPR/C/GRD/CO/1 (2009) 11; Iran CCPR/C/IRN/CO/3 (2011) 16; Indonesia CCPR/C/IDN/CO/1 (2013) 15; Sudan CCPR/C/SDN/CO/5 (2018) 35. 240 Sudan CCPR/C/79/Add.85 (1997) 9; Yemen CCPR/CO/84/YEM (2005) 15; Iran CCPR/C/ IRN/CO/3 (2011) 12; Yemen CCPR/C/YEM/CO/5 (2012) 14. 241 Mauritius A/33/40 (1978) 469; USA CCPR/C/USA/CO/4 (2014) 17. 242 Barbados CCPR/C/BRB/CO/3 2007 12; Iran CCPR/C/IRN/CO/3 (2011) 16; Indonesia CCPR/ C/IDN/CO/1 (2013) 15. 243 Tajikistan CCPR/CO/84/TJK (2005) 23; Greece CCPR/CO/83/GRC (2005) 16; UK CCPR/C/ GBR/CO/6 (2008) 27; Zambia CCPR/C/ZMB/CO/3 (2007) 22; Tanzania CCPR/C/TZA/CO/4 (2009) 16; Kazakhstan CCPR/C/KAZ/CO/1 (2011) 15; Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 21; Cape Verde CCPR/C/CPV/CO/1 (2012) 12; HK SAR CCPR/C/CHN HKG/CO/3 (2013) 16; USA CCPR/C/USA/CO/4 (2014) 17; Chad CCPR/C/TCD/CO/2 (2014) 15; Ireland CCPR/C/IRL/CO/4 (2014) 14; Djibouti CCPR/C/DJI/CO/1 (2013) 14; Suriname CCPR/C/ SUR/CO/3 (2015) 45; Czech Republic CCPR/C/CZE/CO/3 (2013) 19; Nepal CCPR/C/NPL/ CO/2 (2014) 15; Burundi CPR/C/BDI/CO/2 (2014) 15; UK CCPR/C/GBR/CO/7 (2015) 19; Slovenia CCPR/C/SVN/CO/3 (2016) 29; Jamaica CCPR/C/JAM/CO/4 (2016) 45; Slovakia CCPR/C/SVK/CO/4 (2016) 34; Madagascar CCPR/C/MDG/CO/4 (2017) 31; Mongolia CCPR/ C/MNG/CO/6 (2017) 17; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 43. 244 Argentina CCPR/C/ARG/CO/5 (2016) 15; Ghana CCPR/C/GHA/CO/1 (2016) 35; Mauritius CCPR/C/MUS/CO/5 (2017) 23; Swaziland CCPR/C/SWZ/CO/1 (2017) 50.

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Capital Punishment In Ng v. Canada the Committee acknowledged that by definition execution may be considered to constitute cruel and inhuman treatment (but is permitted under Article 6(2) for the most serious crimes) and it reaffirmed, as it had done in General Comment 20, that if carried out it must be done ‘in such a way as to cause the least possible physical and mental suffering’.245

Means of Execution In determining whether there is such an Article 7 violation the Committee has regard to relevant personal factors affecting the author, the specific conditions of detention on death row, and whether the proposed method of execution is particularly abhorrent.246 The use of lethal injection in Kindler v. Canada did not constitute a violation,247 but in Ng v. Canada cyanide gas asphyxiation would (if carried out) since available evidence indicated that it may cause prolonged suffering and agony where death resulted after 10 minutes, and so would not meet the test of ‘least possible physical and mental suffering’.248 Some of those dissenting in Ng considered that criteria of permissible suffering should not solely depend on the swiftness of death,249 or did not think it was appropriate for the Committee to apply criteria such as whether there was acute pain of limited duration or less pain of longer duration.250 Two (dissenting) distinguished gas asphyxiation from stoning (which would be contrary to Article 7) as the latter is ‘intended to and actually inflicts prolonged pain and suffering’.251

Issue of Execution Warrant A warrant issued for execution necessarily causes intense anguish and the Committee found in Pratt and Morgan v. Jamaica that a delay of close to 20 hours from the time the stay of execution was granted to the time when the authors were removed from their death cell constituted cruel and inhuman 245 Ng v. Canada, CCPR/C/49/D/469/1991, 5 November 1993 [16.2], citing GC 20 [6]. For a stronger view, see the Individual Opinion of Mr Fausto Pocar. For a detailed study of the abolition of the death penalty, see William Schabas, The Abolition of the Death Penalty in International Law (Cambridge University Press, 2002). 246 Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993 [15.3]. 247 Kindler v. Canada, CCPR/C/48/D/470/1991, 30 July 1993 [16]. 248 Ng v. Canada, CCPR/C/49/D/469/1991, 5 November 1993 [16.3] [16.4]. The Individual Opinion by Mr Kurt Herndl (dissenting) at [13] [18] took issue with whether the State failed to refute the ‘least possible physical and mental suffering’ point and concluded there is no agreed or scientifically proven standard to determine that judicial execution by gas asphyxiation is more cruel and inhuman than other methods of judicial execution. 249 Individual Opinion of Mr Nisuke Ando (dissenting). 250 Individual Opinion of Mr Kurt Herndl (dissenting) [20]. 251 Individual Opinion of Messrs Andreas Mavrommatis and Waleed Sadi (dissenting).

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treatment.252 The Article 7 failure (‘to be treated with humanity’) in Wilfred Pennant v. Jamaica subsisted in the author being placed in a death cell for two weeks after a warrant of execution was read to him, without adequate official explanation of the reasons for this.253 The adverse mental state of the author in Sahadath v. Trinidad and Tobago at the time of reading his death warrant was obvious to those around him, and should have been apparent to the prison authorities. Issuing a warrant for his execution as a ‘mentally incompetent person’ was a violation of Article 7.254

Death Penalty in Breach of Article 6 or 14 Death sentences in violation of Article 6 or 14 have been found to violate Article 7 as a matter of course. In Mwamba v. Zambia a death sentence followed a trial in violation of Article 14(3)(c) (right to trial without undue delay) and Article 14(5) (right of review by a higher tribunal) when an appeal was not heard for many years because a record of proceedings was not typed. The Committee answered the resulting Article 7 claim by commenting that to impose a death sentence on a person after an unfair trial is to subject them wrongfully to the fear that they will be executed. Where there is a real possibility that the sentence will be enforced, that fear must give rise to considerable anguish, which cannot be dissociated from the unfairness of the proceedings underlying the sentence. The imposition of any death sentence in such circumstances would automatically entail a violation of Article 7.255 The death sentence was imposed on the author in Clive Johnson v. Jamaica when he was under 18 years of age, contrary to Article 6(5). It was thus void ab initio, and his detention on death row was in violation of Article 7.256

Time between Sentence and Carrying Out the Death Penalty Prolonged delays in the execution of a sentence of death do not per se constitute cruel, inhuman or degrading treatment. As the Committee explained in Francis v. Jamaica, each case must be considered on its own merits, including factors such as fault on the part of the State in causing the delay (e.g., in administering justice), the specific conditions of imprisonment and their psychological impact on the 252 Pratt and Morgan v. Jamaica, CCPR/C/35/D/225/1987 6 April 1989 [13.7]. At [15] the Committee urged that capital punishment should not be imposed in circumstances where the individual has suffered any Covenant violation. See also Thompson v. St Vincent and the Grenadines, CCPR/C/70/D/806/1998, 18 October 2000 [8.4]. 253 Pennant v. Jamaica, CCPR/C/64/D/647/1995, 3 December 1998 [8.6]. Cf. Martin v. Jamaica, CCPR/C/47/D/317/1988 [12.3] (no violation where the author was not detained in the special cell after the stay of execution had been granted). 254 Sahadath v. Trinidad and Tobago, CCPR/C/74/D/684/1996, 2 April 2002 [7.2]. 255 Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.8]. 256 Johnson v. Jamaica, CCPR/C/64/D/592/1994, 25 November 1998 [10.4].

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person concerned.257 In Errol Johnson v. Jamaica the Committee elaborated as follows on matters relevant to the assessment whether the mere length of time spent on death row may violate Articles 7 and 10, driven by the principle that the death penalty is the regrettable concomitant of capital punishment being permissible under Article 6: (a) the Covenant does not prohibit the death penalty, though it subjects its use to severe restrictions. As detention on death row is a necessary consequence of imposing the death penalty, no matter how cruel, degrading and inhuman it may appear to be, it cannot, of itself, be regarded as a violation of Articles 7 and 10. (b) While the Covenant does not prohibit the death penalty, the Committee has taken the view that Article 6 refers generally to abolition in terms which strongly suggest that abolition is desirable. Reducing recourse to the death penalty may therefore be seen as one of the objects and purposes of the Covenant. (c) As one of the objects and purposes of the Covenant is to promote reduction in the use of the death penalty, an interpretation of a Covenant provision that may encourage a State that retains the death penalty to make use of that penalty should, where possible, be avoided.258 There was no violation of Article 7 or 10 in Errol Johnson in the absence of any compelling circumstances over and above the length of the detention on death row, but the Committee was keen to avoid the impression that keeping condemned prisoners on death row for many years is an acceptable way of treating them. It equally did not want to send the message that a capital sentence should be carried out as expeditiously as possible after being imposed, or even after a given length of time, as this would be inconsistent with the Covenant’s object and purpose. Life on death row, harsh as it may be, is preferable to death. There may also be sound reasons for delaying execution, which should be preserved, such as during a moratorium on executions while a review of the death penalty is conducted, or for political reasons when abolition is not yet feasible.259 Prolonged delays in carrying out a death sentence have resulted in Article 7 findings where attributable to the State,260 but not where attributable to the 257 Francis v. Jamaica, CCPR/C/54/D/606/1994 (1995), 25 July 1995 [9.1]. 258 Johnson v. Jamaica, CCPR/C/56/D/588/1994, 22 March 1996 [8.2]. See also Winston Forbes v. Jamaica, CCPR/C/64/D/649/1995, 20 October 1998 [7.4] (no violation in death row deten tion for over eleven years); LaVende v. Trinidad and Tobago, CCPR/C/61/D/554/1993, 29 October 1997 [5.7] (no violation in death row detention for more than eighteen years since counsel did not allege the existence of circumstances, over and above the mere length of detention, which would have turned the author’s detention on death row at the state prison into a violation of Articles 7 and 10(1)) for strong dissent, see Individual Opinion of Fausto Pocar, approved by Mr Prafullachandra N. Bhagwati, Ms Christine Chanet, Ms Pilar Gaitan de Pombo and Mr Julio Prado Vallejo). 259 Johnson v. Jamaica, CCPR/C/56/D/588/1994, 22 March 1996 [8.3] [8.4]. 260 Francis v. Jamaica, CCPR/C/54/D/606/1994, 25 July 1995 [9.2] (court failure to issue a written judgment over a period of more than thirteen years); Mwamba v. Zambia, CCPR/C/98/D/1520/ 2006, 10 March 2010 [6.6] (the failure was the result of not having the record of proceedings typed); Kamoyo v. Zambia, CCPR/C/104/D/1859/2009, 23 March 2012 [6.5] (the author had

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author.261 As to too short a delay, in Rolando v. Philippines the Committee found no violation of Article 7 or 10(1) when the author would not be notified of the date of his execution until dawn of the day in question, whereupon he would be executed within 8 hours and would have insufficient time to bid farewell to family members and organise his personal affairs. He would already have had at least one year following the exhaustion of domestic remedies and prior to notification to organise his personal affairs and meet with family members.262 The negative psychological impact, anguish and mental distress suffered by the author in Chisanga v. Zambia amounted to cruel and inhuman treatment. He was kept in doubt as to the result of his appeal, was made to believe that his death sentence had been commuted, and was later informed that it was not, then was returned to death row after two years in the long-term section.263

Death Row Conditions The ‘compelling circumstances’ needed (following Errol Johnson) for a violation of Article 7 (or 10(1)), beyond detention on death row for a specific period of time, were present in Colin Johnson v. Jamaica when the author was beaten by warders with no medical treatment for three weeks for a broken hand and he received threats to his life.264 Similarly, in Wilson v. Philippines the author’s mental suffering and anguish as a consequence of being sentenced to death was exacerbated by his treatment in detention over fifteen months, which included violence against him by prison guards, upon their instigation or with their acquiescence, causing him documented long-term psychological damage.265 An extreme example is provided by Francis v. Jamaica. After a warrant was issued for the condemned man’s execution he was placed in a death cell adjacent to the gallows where prisoners were held prior to execution. He was subjected to round the clock surveillance and was weighed in order to calculate the length of ‘drop’ required. He was taunted by the executioner about the impending execution and about how long it would take for him to die. He could hear the gallows being tested. This occurred early in his detention. He suffered fragile and deteriorating mental health during his incarceration on death row which followed, when he was held for twelve years in a cell measuring 10 ft ×10 ft (3.5 m × 3.5 m), which was

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been waiting for thirteen years for the hearing of his appeal because the case record had been lost). Barrett and Sutcliffe v. Jamaica, CCPR/C/44/D/271/1988 at 71 (1992), 30 March 1992 [8.4] (a delay of ten years was largely attributable to the authors). Rolando v. Philippines, CCPR/C/82/D/1110/2002, 3 November 2004 [5.4]. See also Rayos v. Philippines, CCPR/C/81/D/1167/2003, 27 July 2004 [7.1]. Chisanga v. Zambia, CCPR/C/85/D/1132/2002, 18 October 2005 [7.3]. Johnson v. Jamaica, CCPR/C/64/D/653/1995, 3 December 1998 [8.1]. See also Henry v. Jamaica, CCPR/C/64/D/610/1995, 21 October 1998 [7.2] [7.3] (lack of medical treatment despite a recommendation from a doctor that he be operated on). Wilson v. Philippines, CCPR/C/79/D/868/1999, 30 October 2003 [7.4].

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dirty and infested with rats and cockroaches. He was only allowed out of his cell for a few minutes each day and sometimes remained locked up for 24 hours. He was regularly beaten by warders and was denied medical treatment. The domestic court also failed to issue a written judgment over a total period of more than thirteen years, which prevented him from exercising his right of appeal against the death sentence.266

‘M E D I C A L O R S C I E N T I F I C E X P E R I M E N TATI O N ’ ‘[I]ntended to prevent the recurrence of atrocities such as those committed in concentration camps during World War II . . . [and] . . . so important as to require a specific provision, even at the risk of repetition’,267 Article 7 expressly prohibits medical or scientific experimentation without the free consent of the person concerned. The Committee has particular concern for those who are detained,268 including those in care,269 but this aspect of Article 7 is rarely the subject of individual petitions. Acosta v. Uruguay included allegations that the author was subjected to psychiatric experiments and for three years, against his will, was injected with tranquillisers every two weeks, on occasion forcibly after he had been subdued by soldiers. The Committee requested him to provide further, more precise information (together with any relevant medical reports), but he was not able to do so. He repeated the allegations (referring this time to use of ‘a psychotropic drug’) and also claimed that no competent medical supervision was exercised when the drug was administered. The Committee based its conclusion that he was subjected to inhuman treatment on facts which did not include those concerning the alleged psychiatric experiments.270 Allegations of non-consensual administration of treatment are more common. Among the claims in Brough v. Australia was that anti-psychotic medication (Largactil) was administered to a juvenile prisoner without his consent. The State’s uncontested argument was that it was intended to control his selfdestructive behaviour. It was prescribed by a general practitioner and continued after he had been examined by a psychiatrist. There was no adverse finding in this 266 Francis v. Jamaica, CCPR/C/54/D/606/1994, 25 July 1995 [4.4], [9.2] (violation of Arts 7 and 10(1)). 267 A/2929 (1955), p. 31 [14]. 268 GC 20 [7] (special protection is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment). 269 See, e.g., France A/38/40 (1983) 323 (explanation that medical experiments were carefully controlled and were always subject to the consent of the patient); France CCPR/C/FRA/CO/5 (2015) 20 (concern about the continued use of ‘packing’, the practice of wrapping autistic children and psychotic adults in extremely cold, wet sheets for experimental purposes (Arts 7, 16 and 26); Romania CCPR/C/ROU/CO/5 (2017) 29 (ill treatment in public care facilities). 270 Acosta v. Uruguay, Communication No. 110/1981 (31 March 1983), Supp. No. 40 (A/39/40) at 169 (1984), 29 March 1984 [2.7], [8], [10], [13.1] [13.2], [15].

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respect, in the absence of any elements which would indicate that the medication was administered for purposes contrary to Article 7.271 However, the facts in Umarov v. Uzbekistan were sufficient to reveal a violation of Article 7 because the victim displayed effects of having been administered psychotropic drugs throughout the investigation and trial against him. Requests that prompt medical examinations be carried out were also repeatedly ignored.272 Allegations of non-consensual administration of drugs and treatment are disclosed in the Committee’s examination of country reports, and include reports of forced treatment of those with mental, intellectual and psychosocial disabilities in Serbia, Hungary and Norway.273 The Committee’s observations on the United States refer to the use of non-consensual psychiatric medication, electro-shock and other restrictive and coercive practices in mental health services, which led it to comment that non-consensual psychiatric treatment may be applied, if at all, only in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned, provided that he or she is unable to give consent, and for the shortest possible time without any long-term impact and under independent review.274 The Committee also reminded the United States of its obligations under this limb of Article 7 when noting that in the United States waivers of consent in regulated research may be given in case of individual and national emergencies; some research may be conducted on persons vulnerable to coercion or undue influence such as children, prisoners, pregnant women, the mentally disabled or economically disadvantaged; non-therapeutic research may be conducted on the mentally ill or those with impaired decision-making capacity, including minors; and domestic law authorised the president to waive the prior informed-consent requirement for the administration of an investigational new drug to a member of the US armed forces, if the president determined that obtaining consent was not feasible, that it was contrary to the best interests of the military members or was not in the interests of US national security.275 The Committee also noted its concern that in the Netherlands medical experimentation involving minors was permissible where it would be of direct benefit to the child concerned or where the participation of children was a necessary component of the research, and the experimentation was deemed to have a ‘negligible’

271 Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.5]. 272 Umarov v. Uzbekistan, CCPR/C/100/D/1449/2006, 19 October 2010 [8.3]. 273 Serbia CCPR/C/SRB/CO/3 (2017) 16; Hungary CCPR/C/HUN/CO/6 (2018) 21; Norway CCPR/C/NOR/CO/7 (2018) 22 (coercive electro convulsive treatment in mental healthcare institutions). 274 USA CCPR/C/USA/CO/4 (2014) 18. 275 USA CCPR/C/USA/CO/3/Rev.1 (2006) 31. For a response to US attempts to redefine torture restrictively and distinguish it from other forms of CIDT, see Manfred Nowak, ‘What Practices Constitute Torture?: US and UN Standards’, (2006) 28(4) Hum. Rts Q., p. 809.

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effect. The law did not apparently contain adequate safeguards in relation to medical experimentation requiring the involvement of children.276

I M P L E M E N TAT I O N Reservations are a constant implementation focus of the Committee, and it unsurprisingly expressed particular concern to the United States and Botswana at their reservations to Article 7 and called for their withdrawal (those reservations also attracted opposition from numerous countries), recalling that reservations offending peremptory norms of international law, including the prohibition of torture, are incompatible with the objects and purposes of the Covenant.277 Both General Comments on Article 7 stress that implementation requires more than proscription, even by criminal measures.278 The Committee has recommended a definition of torture that covers all of the elements contained in Article 7 of the Covenant and Articles 1 and 4 of the Convention Against Torture.279 It has expressed concern where acts of torture are not fully criminalised,280 domestic law lacks a comprehensive definition of torture,281 it omits key components such as psychological torture,282 the situations addressed

276 Netherlands CCPR/C/NLD/CO/4 (2009) 8 (recommendation to ensure that minors not be subjected to any medical experiments which do not directly benefit the individual concerned (non therapeutic research) and that safeguards be fully consistent with the rights of the child, including with regard to matters of consent). See also Netherlands CCPR/CO/72/NET (2001) 7 (the State’s ‘problematic’ Medical Research (Human Subjects) Act 1999 in which proportion ality was assessed by balancing the risks of the research to the subject against the probable value of the research). 277 USA CCPR/C/79/Add.50 (1995) 14, 27; Botswana CCPR/C/BWA/CO/1 (2008) 14. 278 GC 7 [1]; GC 20 [8]. 279 For criticisms and recommended definitions, see, e.g., Estonia CCPR/C/79/Add.59 (1995) 18; Uzbekistan CCPR/CO/83/UZB (2005) 9; Israel CCPR/C/ISR/CO/3 (2010) 11; Uzbekistan CCPR/C/UZB/CO/3 (2010) 10; Turkmenistan CCPR/C/TKM/CO/1 (2012) 9; Yemen CCPR/ C/YEM/CO/5 (2012) 19; Indonesia CCPR/C/IDN/CO/1 (2013) 14; Uruguay CCPR/C/URY/ CO/5 (2013) 14; Sierra Leone CCPR/C/SLE/CO/1 (2014) 16; Uzbekistan CCPR/C/UZB/CO/4 (2015) 13; Ghana CCPR/C/GHA/CO/1 (2016) 25. The issue of criminalisation under the Convention Against Torture is traversed in Nigel Rodley and Matt Pollard, ‘Criminalisation of Torture: State Obligations Under the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, (2006) 2 EHRLR, p. 115. Malcolm Evans emphasises that the ‘primary purpose of the UNCAT is . . . to require states to assert jurisdiction over acts of torture, not to outlaw the practice of torture as a matter of international human rights protection’, in ‘Getting to Grips with Torture’, (2002) 51(2) Int. Comp. L.Q., p. 376. 280 E.g., Jamaica CCPR/C/JAM/CO/4 (2016) 33; Kuwait CCPR/C/KWT/CO/3 (2016) 24; Swaziland CCPR/C/SWZ/CO/1 (2017) 32; Thailand CCPR/C/THA/CO/2 (2017) 19; Bulgaria CCPR/C/BGR/CO/4 (2018) 25. 281 E.g., Yemen CCPR/C/YEM/CO/5 (2012) 19; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 29. 282 E.g., Estonia CCPR/C/79/Add.59 (1995) 18; USA CCPR/C/USA/CO/4 (2014) 12; Haiti CCPR/ C/HTI/CO/1 (2014) 12.

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by the prohibition against torture are too narrow,283 it does not cover acts of torture committed by private persons,284 or is not otherwise in line with the Covenant and other international standards.285 It has taken issue where the criteria for determining the penalty for torture lack objective criteria,286 where torture is not defined as a separate offence with appropriate sanctions,287 such as where torture is only treated as a common law offence,288 or only common law remedies are available in the event of a complaint,289 and torture is not sufficiently stigmatised as a crime.290 The law must stipulate sanctions for acts of torture which are commensurate with the gravity of such offences.291 It has recommended review with a view to ensuring that any possible defences for torture be repealed,292 and that justification on the basis of ‘necessity’ be removed.293 Given the importance of investigation of allegations of Article 7, combined with prosecution and redress, domestic provisions should also address these issues effectively.294 Practical safeguards against torture or ill-treatment include institutional implementation by establishing and maintaining an independent, adequately resourced, legally constituted body with power to oversee and investigate complaints of human rights violations.295

C O N C L US I O N The prohibition against torture and various forms of CIDT is simply stated but farreaching and stringent in the obligations to which it gives rise, drawing strongly on Article 2(1) and (3). The expectations of the Committee are for effective 283 Kazakhstan CCPR/C/KAZ/CO/2 (2016) 21; Jordan CCPR/C/JOR/CO/5 (2017) 16; CCPR/C/ LBN/CO/3 (2018) 27. 284 Mongolia CCPR/C/MNG/CO/6 (2017) 21. 285 E.g., Poland CCPR/C/POL/CO/7 (2016) 25; Liechtenstein CCPR/C/LIE/CO/2 (2017) 29; Pakistan CCPR/C/PAK/CO/1 (2017) 25; Serbia CCPR/C/SRB/CO/3 (2017) 26; Guatemala CCPR/C/GTM/CO/4 (2018) 20; Belarus CCPR/C/BLR/CO/5 (2018) 30; Lao CCPR/C/LAO/ CO/1 (2018) 23. 286 Honduras CCPR/C/HND/CO/2 (2017) 24. 287 E.g., Madagascar CCPR/C/MDG/CO/3 (2007) 19; Chad CCPR/C/TCD/CO/1 (2009) 21; Jamaica CCPR/C/JAM/CO/3 (2011) 21; Denmark CCPR/C/DNK/CO/6 (2016) 21. 288 Namibia CCPR/CO/81/NAM (2004) 11. 289 Australia A/38/40 (1983) 144. 290 Switzerland CCPR/C/CHE/CO/4 (2017) 30. 291 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 14; Mongolia CCPR/C/MNG/CO/5 (2011) 13; Iceland CCPR/C/ISL/CO/5 (2012) 8; Latvia CCPR/C/LVA/CO/3 (2014) 11; USA CCPR/C/ USA/CO/4 (2014) 12. 292 UK CCPR/C/GBR/CO/7 (2015) 18 (concern that the statutory defence of ‘lawful authority, justification or excuse’ to a charge of official intentional infliction of severe pain or suffering could allow for wide application, including to the absolute prohibition of torture). 293 Israel CCPR/C/ISR/CO/3 (2010) 11 (the State should completely remove the notion of ‘neces sity’ as a possible justification for the crime of torture). 294 See sections ‘Duty to Investigate’, ‘Prosecution’, ‘Redress’, above. 295 See section ‘Safeguards against Torture and Ill treatment’, above.

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legislative protection for each of the elements of Article 7, rigorous investigation and prosecution of those responsible (devoid of amnesties, impunity and statutes of limitation), sufficiently stiff sanctions to reflect the gravity of the conduct, full reparation for victims, effective independent and properly resourced institutional oversight, access to places of detention by national or international human rights monitors, and (less obviously) the provision of relevant information to families of victims, including about the results of investigations, the circumstances that led to a prisoner’s execution and the location of their grave. Article 7 protection extends beyond ‘immediate’ victims of Article 7 violation, including to family members forced to witness it, or who suffer anguish and mental stress (particularly as a result of enforced disappearance of a relative). The circumstances in which violation occurs are extensive, ranging across conditions of detention and treatment of detainees and prisoners (overlapping with Article 10(1)); the deportation of vulnerable individuals in need of special care, particularly where their vulnerability is occasioned by conditions of their administrative detention; the mishandling of victims of serious crime by investigative and medical officials, as well as the court when trying the alleged perpetrators; the demeaning display of defendants during their criminal trial (also in violation of the presumption of innocence); the destruction of a family home with official endorsement or excessive use of force; the distress and suffering which follows from unavailability of a therapeutic abortion in cases of non-viable pregnancy; sterilisation affecting men, children, minorities, those with disabilities or those with HIV; FGM and other traditional practices; violence, including sexual violence and domestic violence; corporal punishment; a death sentence passed following an unfair trial or on a juvenile, exposure to the fear of execution when a death sentence has no justification; other aspects of capital punishment, including the means of execution, service of an execution warrant on a ‘mentally incompetent person’, and death row conditions; non-consensual administration of drugs and treatment; and medical or scientific experimentation without free consent. There is an abundance of Committee jurisprudence across all of the issues discussed in this chapter, reflecting the importance of Article 7 when constant appeal is made to it in OP1 claims, leaving few gaps to be filled by analysis of country reviews.

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Article 8: Slavery, Servitude and Forced or Compulsory Labour

INTRODUCTION ARTICLE 8(1): SLAVERY ARTICLE 8(2): SERVITUDE ARTICLE 8(3): FORCED OR COMPULSORY LABOUR IMPLEMENTATION CONCLUSION

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Covenant Article 8 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations. Comparable Provisions in Other International Instruments European Convention: Article 4. American Convention on Human Rights: Article 6. African Charter on Human and Peoples’ Rights: Article 5. 218

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INTRODUCTION The Influence of Slavery and Labour Conventions The aggregation of bilateral conventions secured by Britain in the nineteenth century, involving a total of thirty-one parties, effectively crippled the transatlantic ‘plantation’ slave trade through mechanisms allowing forfeiture of vessels carrying or equipped to carry slaves. The 1890 General Act of the Brussels Conference achieved further measures to suppress the slave trade, directed at protectorates or possessions involved in trade on the East African coast and in the Indian Ocean.1 The first multilateral convention to establish commitments against chattel slavery on anything like a universal scale was the 1926 Convention to suppress the Slave Trade and Slavery (1926 Convention). It was the first convention to define ‘slavery’ as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’, and the ‘slave trade’ as ‘including all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery’, along with other acts involved in the acquisition, disposal, trade or transport in slaves.2 The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956 Supplementary Convention) represented a significant extension, to ‘institutions and practices similar to slavery’, capturing debt bondage, serfdom, forced marriage and child exploitation.3 The 1926 Convention and 1956 Supplementary Convention remain important sources of guidance on the content of Article 8. In the drafting of Article 8 it was appreciated that the concepts of ‘slavery’ and ‘servitude’ were sufficiently different to warrant their being dealt with in two separate paragraphs (unlike Article 4 of the Universal Declaration in which they are combined).4 Slavery ultimately became the subject of Article 8(1); servitude of Article 8(2). Nowak suggests that ‘slavery’ for the purposes of Article 8(1) may be defined in the sense of Article 1 of the 1926 Convention; and he considered it reasonable to speak of ‘slavery-like practices’ when referring to ‘servitude’ in Article 8(2), that is, the ‘institutions and practices similar to slavery’ which were the subject of the 1956 1 General Act of the Brussels Conference relative to the African slave trade, signed at Brussels, July 2, 1890. 2 League of Nations, Convention to Suppress the Slave Trade and Slavery, 25 September 1926, 60 LNTS 253, Registered No. 1414, entry into force 9 March 1927, Art. 1. For the development of slavery definitions in international agreements from 1815 to 2001, see Kevin Bales and Peter Robbins, ‘No One Shall Be Held in Slavery or Servitude: a Critical Analysis of International Slavery Agreements and Concepts of Slavery’, (2001) 2(2) Hum. Rts Rev., p. 18. For the definition of slavery under the European Convention, see Siliadin v. France, App. No. 73316/01, ECHR 26 July 2005, p. 37. 3 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 September 1956, entered into force 30 April 1957. 4 A/2929 Ch.VI (1955), p. 33 [17].

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Convention beyond slavery.5 Both constitute severe forms of economic exploitation, and in that respect differ from Article 11 of the Covenant.6 To the Covenant drafters slavery implied the destruction of the juridical personality, and was a relatively limited and technical notion, whereas servitude had more general connotations covering all possible forms of man’s domination of man.7 Article 8(1) and (2) are absolute and non-derogable, a point which the Committee has pressed in reviewing State reports.8 Article 8(3) stipulates that no one shall be required to perform forced or compulsory labour, which may not always be distinguishable from slavery and servitude.9 Where conduct under Article 8(3) overlaps with that under Article 8(1) or (2), it should be accorded the stricter treatment of Article 8(1) and (2), admitting no exceptions or limitations, in order to keep faith with them. The text of Article 8(3) runs to some length as a result of its exceptions. Those in Article 8(3)(c), the longest, were derived from the International Labour Organization’s 1930 Forced Labour Convention,10 which was developed out of concern for the use of forced labour in the colonies. The term ‘forced or compulsory labour’ is not defined, but the adoption in Article 8(3) of exceptions from the Forced Labour Convention (albeit with some adaption) suggests that the definition of ‘forced or compulsory labour’ under that convention may be appropriate for the purposes of Article 8(3), namely, ‘all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.11 The essence of forced or compulsory labour is its involuntary character. The Forced Labour Convention was supplemented in 1957 by the ILO Convention Concerning the Abolition of Forced Labour to address economic coercion, and to preclude certain forms of forced labour which were then still permissible under the Forced Labour Convention as punishment for strikes and for holding certain political views.12 The resulting savings and exceptions in Article 8(3) allow for imprisonment with hard labour (in the criminal sentencing 5 Nowak, CCPR Commentary, pp. 198 200. See also Jean Allain, ‘On the Curious Disappearance of Human Servitude from General International Law’, (2009) 11 J. Hist. Int. Law (Curious Disappearance), p. 303. 6 See chapter on Article 11: Imprisonment for Inability to Fulfil a Contractual Obligation. 7 A/2929 Ch.VI (1955), p. 33 [18]. 8 Croatia CCPR/CO/71/HRV (2001) 9 (concern that the constitutional provision dealing with a state of emergency failed to include Art. 8(1) and (2) among non derogable rights). See also Portugal A/45/40 (1990) 134 (questioning whether there could be derogation from Art. 8 in times of emergency). 9 On the difficulties in relying on distinct legal definitions, see Nicole Siller, ‘“Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’, (2016) 14(2) JICJ, p. 405. 10 ILO Forced Labour Convention, C29, 28 June 1930, entered into force 1 May 1932. 11 Article 2(1) (for the exceptions see Art. 2(2)) ILO Forced Labour Convention. For the drafting history of the exceptions, see Bossuyt, Guide to the ‘Travaux Préparatoires, pp. 174 83. 12 ILO Abolition of Forced Labour Convention, C105, 25 June 1957, C105, entered into force 17 January 1959.

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practices of those countries where it still exists), they permit prison work and community service to be imposed, as well as military service and alternatives for conscientious objectors. There are also exceptions for work exacted to meet cases of emergency or calamity threatening the life or well-being of the community, and for normal civil obligations. Modern Forms of Human Exploitation Chattel slavery in its ancient form has survived as an embedded cultural phenomenon in countries such as Mauritania, where the slave status of Haratin has been passed down through generations, and in India, in the treatment of the Dalits.13 Various forms of modern servitude are widespread,14 particularly in the agricultural sector,15 and on a massive global scale in the trafficking of women, children, migrants and other vulnerable groups.16 Human trafficking received individual attention under the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.17 More recently the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol) supplemented the broadly based UN Convention Against Transnational Organized Crime (the Palermo Convention), with a detailed definition of trafficking specifying the conduct which contracting parties are to criminalise. Its emphasis is predominantly on border security and deterrence.18 In April 2004 the Commission on Human Rights 13 See section ‘Article 8(1): Slavery’, below. 14 For the situation of slavery and migrant groups, see Natán Lérner, Group Rights and Discrimination in International Law, 2nd edn (Martinus Nijhoff, 2003), ch. 9 (Special Situations Related to Group Membership: Migrant Groups: Slavery). 15 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 16 (use of child labour in cotton and tobacco fields); Uzbekistan CCPR/C/UZB/CO/4 (2015) 19 (forced labour in the cotton and silk sectors); Turkmenistan CCPR/C/TKM/CO/1 (2012) 20 (the use of children for cotton harvesting); Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 17 (child labour, particularly in agriculture and trade); Greece CCPR/C/GRC/CO/2 (2015) 21 (migrants working in slavery like conditions in the agricultural sector); Kazakhstan CCPR/C/KAZ/CO/2 (2016) 35 (tobacco, cotton and construc tion); El Salvador CCPR/C/SLV/CO/7 (2018) 25 (maquiladora industry, as well as fishing, agricultural and domestic sectors). 16 For descriptions of contemporary forms of slavery and proposed methods for abolition, see David Weissbrodt, Abolishing Slavery and its Contemporary Forms (Office of the United Nations High Commissioner for Human Rights, 2002). For violations in the sex industry in the United Kingdom, see Regina Rauxloh, ‘No Air to Breathe: Victims of Sex Slavery in the UK’, (2007) 13 Tex. Wes. L. Rev., p. 749. See also Joel Quirk, ‘The Anti Slavery Project: Linking the Historical and Contemporary’, (2006) 28(3) Hum. Rts Q., p. 565. 17 General Assembly, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 2 December 1949, A/RES/317, entered into force 25 July 1951. 18 General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000 (‘trafficking in persons’ is defined in Art. 3(a) as ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power

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created the mandate of the Special Rapporteur on Trafficking in Persons, especially women and children.19 Another important initiative was the creation the Working Group on Contemporary Forms of Slavery by the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities to review developments in the field of slavery and the slave trade in all their practices and manifestations. Its function was subsumed in 2007 in the mandate of the Special Rapporteur on Contemporary Forms of Slavery.20 The Palermo Protocol, and its European counterpart, the 2005 Council of Europe Convention on Action against Trafficking in Human Beings,21 are particularly important in lending contemporary relevance to the terms ‘slavery’ and ‘institutions and practices similar to slavery’, since the drafters of those instruments had these particular terms in mind when including them in the definitions of ‘trafficking in persons’ and ‘trafficking in human beings’.22 Human trafficking has a strong private dimension, as it is conducted in large part by non-State perpetrators.23 State participation tends to take the form of corrupt support and facilitation.24 Article 8 of the Covenant therefore has particular value, read in conjunction with the obligation of States in Article 2 to ‘respect and to ensure’

19 20 21 22 23 24

or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation’, and ‘exploitation’ as including ‘at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’). A similar definition is found in Art. 4(a) of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. Note also the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000. Commission on Human Rights decision 2004/110 of 19 April 2004. The mandate of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, was established in 2007 by Human Rights Council Resolution No. 6/14 of 28 September 2007. Council of Europe Convention on Action Trafficking in Human Beings, 16 May 2005, CETS 197. Jean Allain, The International Legal Regime of Slavery and Human Exploitation and Its Obfuscation by the Term of Art: Slavery Like Practices (Cahiers de la recherche en droits fondamentaux, 2012), p. 27, at p. 40. For the rights of trafficked non citizens, see David Weissbrodt, The Human Rights of Non citizens (Oxford University Press, 2008), pp. 207 17. Note also the warning to Botswana CCPR/ C/BWA/CO/1 (2008) 16, to ensure that no State actors are involved in trafficking. Cambodia CCPR/C/79/Add.108 (1999) 16 (need to enforce anti corruption measures against law enforcement officers in relation to trafficking); Brazil CCPR/C/BRA/CO/2 (2005) 15 (alleged involvement of some officials in acts of trafficking); Nepal CCPR/C/NPL/CO/2 (2014) 18 (concern at the alleged involvement of State officials in trafficking related crimes); Kazakhstan CCPR/C/KAZ/CO/2 (2016) 33 (alleged complicity between and corruption among police officers and those involved in facilitating trafficking); Moldova CCPR/C/MDA/CO/3 (2016) 19 (concern at limited degree of accountability of those reportedly involved or complicit in trafficking, including public officials); El Salvador CCPR/C/SLV/CO/7 (2018) 25 (reports on the obstruction of investigations due to corruption in the judicial system).

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Covenant rights to all within its territory and subject to its jurisdiction in tackling private means of human exploitation.25 The concept of the indivisibility of rights discussed in the Introduction (expressed by the Vienna Declaration and Programme of Action in terms that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’)26 encapsulates a principle of particular importance in the context of Article 8. Extreme poverty, which creates vulnerability to trafficking and other forms of exploitation, could be answered to a significant extent by the full realisation of the socio-economic obligations of the ICESCR.27 Or, as the Covenant and ICESCR both recognise in their Preambles, ‘the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights’. Interrelation between Article 8 and Other Covenant Provisions Depending on their form, slavery and slavery-like practices may entail the simultaneous violation of: Article 7 (e.g., in exploitation of migrant workers and trafficking for forced labour); Article 9 (both in relation to loss of liberty entailed and the threats to personal security); Article 10(1) (in the treatment of those deprived of their liberty as incompatible with standards of humanity and respect for their inherent dignity); and Article 16 (recognition as a person before the law, in the loss of juridical personality).28 In the exploiting of women the practices covered by Article 8 would additionally engage Article 3,29 and in some circumstances also the privacy limb of Article 17, for example, if harsh conditions of labour are combined with demands, such as found in certain industries in Mexico and Guatemala, for mandatory pregnancy testing.30 For children Article 24 has particular protective value in a wide range of circumstances within the ambit of Article 8,31 including by such measures as child registration after birth, which 25 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, for the capacity of the Covenant to address private sources of violation. For means of reparation for slavery, see Max du Plessis, ‘Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery’, (2003) 25(3) Hum. Rts Q., p. 624. 26 UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/ CONF.157/23 [5]. 27 A. Yasmine Rassam, ‘International Law and Contemporary Forms of Slavery: An Economic and Social Rights based Approach’, (2005) 23(4) Penn St. Int. L. Rev., p. 809 urges a more inclusive affirmation of the socio economic rights of the enslaved in a new comprehensive multilateral instrument. 28 Chapter on Article 16: Recognition as a Person before the Law, section ‘Situations of Vulnerability to Article 16 Violation’. 29 Chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Slavery, Servitude, Forced and Compulsory Labour’. 30 Mexico CCPR/C/MEX/CO/5 (2010) 7; Guatemala CCPR/C/GTM/CO/3 (2012) 9. 31 See section ‘Child Exploitation’, below.

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promotes recognition of legal personality (Article 16), and reduces the danger of abduction, sale or trafficking. Forced marriage is capable of raising issues under Articles 2, 3, 7, 8, 23, 24 and 26, depending on the practices with which it is associated. Article 12 would be relevant in most cases of Article 8 violation by inherent restrictions on freedom of movement, but is clearest when vulnerable migrants are victims of trafficking. The forcible removal of the victim from their family would also violate Articles 17 and 23. Chapter Outline This chapter will follow the text of Article 8, taking each of its constituent provisions in turn. It is not always possible to make a clear demarcation between slavery, servitude and forced or compulsory labour, because there is considerable overlap between them in practice. The Committee’s jurisprudence on Article 8 is limited, but will be considered wherever possible. Its Concluding Observations yield a clearer picture of its concerns across a wide range of Article 8 issues, even if at times it is not possible to allocate them precisely among particular Article 8 provisions.

ARTICLE 8(1):

SLAV ERY

The prohibition against slavery has the status of jus cogens.32 Slavery is also a crime against humanity.33 Indications of the continued existence of traditional slavery are found in the Committee’s Concluding Observations addressed to certain Sahel States in which vestiges remain of the Arab slave trade. It expressed serious concern to Mali about the possible survival of ‘slavery-like practices and hereditary servitude’, it recommended a careful study of the relations between the descendants of slaves and the descendants of slave-owners with a view to determining whether ‘slavery-like practices and hereditary servitude’ still continued, and it requested that the Committee be informed of measures taken in response.34 It also mentions the 32 Prosecutor v. Anto Furundzija (1998) Case No. IT 95 17/1, ICTY, Trial Chamber II, Judgment [147] (the International Criminal Tribunal for the former Yugoslavia (ICTY) treated as jus cogens norms ‘principles such as those prohibiting genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the forcible suppression of the right of peoples to self determination’); Mahmoud Bassiouni, ‘Enslavement as an International Crime’, (1990/1) 23 N.Y.U. J. Int. L. & Pol., pp. 445 518, at p. 445: ‘It is well established that prohibitions against slavery and slave related practices have achieved the level of customary international law and have attained jus cogens status.’ 33 General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, adopted on 17 July 1998, entered into force on 1 July 2002, Art. 7(1)(c). 34 Mali CCPR/CO/77/MLI (2003) 16. Note the response of Niger CCPR A/48/40 (1993) 408 (the existence of slavery was difficult to establish because of the conditions prevailing in the northern part of the country).

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trafficking of Malian children to other countries in the region (Côte d’Ivoire), and their subjection to ‘slavery’ and forced labour.35 When addressing a similar pattern of hereditary servitude in neighbouring Mauritania more recently it showed no reluctance to characterise it as slavery, when commenting that despite many legislative initiatives, starting with the formal abolition of slavery as late as 1981, the practice of ‘slavery’ persisted in Mauritania.36 Sometimes the Committee uses ‘slavery’ and ‘slavery-like practices’ interchangeably, for example, when on the same occasion it expressed concern that, in practice, victims of ‘slavery’ were not provided with effective remedies against those responsible for ‘slavery-like practices’. It asked the Mauritanian Government to provide specific and detailed statistical data on the practice of slavery, as well as on investigations, prosecutions, convictions and penalties, and the rehabilitation of the victims. It recommended that Mauritania adopt and implement, as government policy, the road map developed on the recommendations of the Special Rapporteur on Contemporary Forms of Slavery, and raise the awareness of all law enforcement officers and the general population, including in rural areas.37 The main concern in Sudan has been the abduction of women and children in large numbers (for which the State ascribed responsibility to tribes), exacerbated by the small numbers of those who were traced. The Committee exhorted Sudan to put a stop to all forms of ‘slavery and abduction’, to prosecute those involved, to provide abductees with assistance in settling back into their families and communities, and to take forceful action against tribes that continued to engage in abduction.38 Chad also attracted Committee attention because ‘modern forms of slavery’ appeared to be practised in the treatment of child cattle-herders, where the catalyst was said to be poverty, because families could not properly care for and protect those children. The Committee also warned that kidnappings in Chad could easily be disguised as adoptions, and that street children were especially likely to be victims. This required investigation of missing children, a proper legal framework for child adoption, strict enforcement against perpetrators and necessary assistance to victims.39 Children were also vulnerable victims in Madagascar when the conditions in which they were often employed as domestic servants were tantamount to ‘slavery’.40 35 Mali CCPR/CO/77/MLI (2003) 17. 36 Mauritania CCPR/C/MRT/CO/1 (2014) 17. 37 Mauritania CCPR/C/MRT/CO/1 (2014) 17. For a similar reference to the Special Rapporteur’s mandate in combating trafficking, see Peru CCPR/C/PER/CO/5 (2013) 20. 38 Sudan CCPR/C/SDN/CO/3 (2007) 18. 39 Chad CCPR/C/TCD/CO/1 (2009) 31. See also Congo CCPR/C/COD/CO/4 (2017) 45; Honduras CCPR/C/HND/CO/2 (2017) 37 (recommendation to intensify efforts to prevent, combat and punish contemporary forms of slavery). 40 Madagascar CCPR/C/MDG/CO/3 (2007) 21. For ‘slavery like’ conditions, see also Pakistan CCPR/C/PAK/CO/1 (2017) 43 (high number of children engaged in labour under hazardous and slavery like conditions, particularly in the brick kiln industry and domestic settings).

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A RT I C L E 8 ( 2 ) :

S E RV I T U DE

The ‘institutions and practices similar to slavery’, constituting the conventional servitudes beyond slavery,41 and defined in the 1956 Supplementary Convention on slavery are: debt bondage,42 serfdom,43 forced marriage (where a woman is promised or given in marriage for payment, or she may be transferred by her husband, or inherited on his death),44 and child exploitation.45 Servitude may be understood (as suggested by Jean Allain) as ‘such exploitation which does not manifest powers which would normally be associated with ownership, whether de jure or de facto’.46 The following sections focus on debt bondage, serfdom, forced marriage and child exploitation, and human trafficking. Trafficking constitutes a discrete form of human exploitation. It extracts its proceeds in the intermediary stages leading ultimately to the imposition of servitude in any of its forms, if not also slavery. Debt Bondage and Bonded Labour The phenomenon of debt bondage has been addressed by the Special Rapporteur on Contemporary Forms of Slavery, who described it as ‘sufficiently broad to cover the situation of workers trapped in debt bondage in systemic, archaic, feudal systems of slave labour exploitation, as well as that of migrant workers from developing countries who leave their countries accruing debt to cover the costs associated with recruitment’.47 Debt bondage has received comparatively little specific attention by the Committee. It is a practice that has been associated 41 Allain, International Legal Regime of Slavery, p. 31. 42 Debt bondage is defined in Art. 1(a) of the 1956 Supplementary Convention as ‘the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined’. 43 Serfdom is defined in Art. 1(b) of the 1956 Supplementary Convention as ‘the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status’. 44 See Art. 1(c) of the 1956 Supplementary Convention: ‘whereby: (i) Awoman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person.’ 45 See Art. 1(d) of the 1956 Supplementary Convention: ‘whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour’. 46 Allain, ‘On the Curious Disappearance of Human Servitude’, p. 304. 47 A/HRC/33/46 (2016) [8]. Debt bondage is not included in the definition of forced labour under the 1957 ILO Convention Concerning the Abolition of Forced Labour, but, as the Special Rapporteur on Contemporary Forms of Slavery has observed, it can be a form of forced labour, since the two practices overlap (A/HRC/33/46 (2016) [5]).

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particularly with rural areas.48 In addition to the Committee’s general appeal to eradicate debt bondage, it has recommended educational measures.49 ‘Bonded labour’ is associated with exploitation of the weakest and poorest members of society. It has been reported in some regions of Nepal, in the traditional practices known as Haliya, Kamaiya and Kamlari,50 and in captive labour in Bolivia to which some 600 Guaraní families were subjected.51 Bonded labour is also found in deep-rooted practices in India in which members of scheduled castes and tribes, as well as certain classes and ethnic and national minorities have suffered disproportionately.52 Forced labour, discussed below, is a related practice which is far more common. Serfdom Serfdom, as such, has rarely been raised in periodic reviews, though it did receive mention when Ecuador replied to the Committee’s questioning on equality before the law by explaining that the term ‘concertajo’ was a legacy from the Spanish colonial regime, similar to the system of serfdom that existed in Spain during the Middle Ages. In spite of being abolished in 1870, it continued for a time afterwards, but was said to have long since ceased.53 Forced Marriage Forced marriage is one of the forms of servitude expressly defined by the 1956 Supplementary Convention, and often cited in Concluding Observations.54 Article 8 is not always specifically mentioned when it is raised. Forced marriage often features alongside other fundamental gender inequalities and violations of Article 7. Article 6 also becomes relevant when a high number of victims of forced marriage attempt or commit suicide.55 For the varieties of forced marriage and its harms see the chapter on Article 23.56 48 49 51 52

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55 56

E.g., India A/39/40 (1984) 256; Brazil CCPR/C/79/Add.66 (1996) 14, 31. Nepal CCPR/C/79/Add.42 (1994) 7. 50 Nepal CCPR/C/NPL/CO/2 (2014) 18. Bolivia CCPR/C/BOL/CO/3 (2013) 18. India A/39/40 (1984) 256; India A/46/40 (1991) 284; India CCPR/C/79/Add.81 (1997) 15, 29, 34. See also Kazakhstan CCPR/C/KAZ/CO/2 (2016) 35 (the Committee referred to reports of domestic servitude, forced and ‘bonded labour’, particularly of migrant workers in the tobacco, cotton and construction industries). Ecuador CCPR A/32/44 (1977) 129(r). E.g., Mali A/36/40 (1981) 240; Uganda CCPR/CO/80/UGA (2004) 23; Chad CCPR/C/TCD/CO/ 2 (2014) 8; Burkina Faso CCPR/C/BFA/CO/1 (2016) 15; Slovenia CCPR/C/SVN/CO/3 (2016) 23; Pakistan CCPR/C/PAK/CO/1 (2017) 41; Swaziland CCPR/C/SWZ/CO/1 (2017) 24; Switzerland CCPR/C/CHE/CO/4 (2017) 26; Sudan CCPR/C/SDN/CO/5 (2018) 18, 21. Pakistan CCPR/C/PAK/CO/1 (2017) 41. Chapter on Article 23: Protection for the Family, section ‘Forced Marriage’.

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Domestic Servitude Domestic servitude has been singled out by the Committee as an Article 8 issue on a number of occasions, including when concerned at the reported incidence of domestic servitude in Peru,57 Chile (particularly among women and girls),58 Kazakhstan,59 Swaziland (orphans were forced into sex work and domestic servitude),60 Guinea (children, girls and women were subjected to domestic servitude and prostitution networks in foreign countries, particularly in North Africa and the Middle East),61 and Nepal (where there was reported trafficking for purposes of domestic servitude).62 It has also shown particular concern for those in domestic work: identifying the protection needed for domestic workers in Paraguay against any situation of domestic servitude,63 expressing concern at the conditions in which children were employed as domestic servants in Madagascar that were often tantamount to slavery64 (including commercial sexual exploitation),65 the treatment of migrant girls in Mali leaving the countryside for the towns to work as domestic servants (who were reported to work an average of 16 hours a day for very low or non-existent wages, and were often the victims of rape and ill-treatment, and may be forced into prostitution),66 and of migrant domestic workers in Bahrain who were subjected to abuse and exploitation, including excessive working hours and delayed or non-payment of wages.67 Child Exploitation In the Committee’s examination of country reports it is clear that child exploitation takes many forms, including begging,68 prostitution,69 pornography70 and other forms of sexual exploitation.71 Child labour is another manifestation,72 57 59 60 62 64 65 67 68 69 70 71 72

Peru CCPR/C/PER/CO/5 (2013) 20. 58 Chile CCPR/C/CHL/CO/6 (2014) 20. Kazakhstan CCPR/C/KAZ/CO/2 (2016) 35 (reports of domestic servitude). Swaziland CCPR/C/SWZ/CO/1 (2017) 42. 61 Guinea CCPR/C/GIN/CO/3 (2018) 39. Nepal CCPR/C/NPL/CO/2 (2014) 18. 63 Paraguay CCPR/C/PRY/CO/3 (2013) 18. Madagascar CCPR/C/MDG/CO/3 (2007) 21. See also Haiti CCPR/C/HTI/CO/1 (2014) 14 (the use of children in domestic work). Madagascar CCPR/C/MDG/CO/4 (2017) 41. 66 Mali CCPR/CO/77/MLI (2003) 18. Bahrain CCPR/C/BHR/CO/1 (2018) 47. Montenegro CCPR/C/MNE/CO/1 (2014) 19; Burkina Faso CCPR/C/BFA/CO/1 (2016) 35; Guinea CCPR/C/GIN/CO/3 (2018) 39. E.g., Brazil CCPR/C/79/Add.66 (1996) 14, 31; Kuwait CCPR/C/KWT/CO/3 (2016) 34. E.g., Philippines CCPR/C/PHL/CO/4 (2012) 23. Note also Burkina Faso CCPR/C/BFA/CO/1 (2016) 35 (concern that legislation on the punishment of the sale of children, child prostitution and child pornography allowed a person found guilty to pay a fine rather than go to prison). E.g., Bolivia CCPR/C/BOL/CO/3 (2013) 23; Malawi CCPR/C/MWI/CO/1 (2011) 15; Moldova CCPR/C/MDA/CO/3 (2016) 19; Honduras CCPR/C/HND/CO/2 (2017) 36; Liberia CCPR/C/ LBR/CO/1 (2018) 32. E.g., Dominican Republic CCPR/C/DOM/CO/5 (2012) 18; Ecuador CCPR/C/ECU/CO/6 (2016) 33, 34; Honduras CCPR/C/HND/CO/1 (2006) 12; Panama CCPR/C/PAN/CO/3(2008) 20; Peru CCPR/C/PER/CO/5 (2013) 23; Uganda CCPR/CO/80/UGA(2004) 20; Tanzania CCPR/C/TZA/

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commonly associated with trafficking,73 with particularly marked abuse in certain industry sectors.74 These all also raise issues under Article 24. Registration of a child immediately after birth is designed to promote recognition of their legal personality, and may reduce the danger of abduction, sale of or traffic in children, and similar practices.75 Human Exploitation by Trafficking Human exploitation by trafficking touches on most forms of slavery and servitude, and it warrants particular attention because of the more challenging response to it demanded of States. Human trafficking disproportionately affects young women and children, but it also involves migrants and those belonging to ethnic minorities, comprising men, women and children, so it is more appropriate to address human trafficking in this chapter as an Article 8 issue, with suitable acknowledgement of the fact that when raised by the Committee human trafficking frequently also invokes issues under Articles 3, 7, 16 and 24. The recognition of legal personality in Article 16 is closely associated with the Article 8 prohibitions, most obviously that against slavery because slaves are not recognised as legal persons separate from their masters. Article 16 is also particularly important for victims of human trafficking who, like victims of forced disappearance, are removed from the protection of the law.76 The Committee expects a Contracting State’s underlying policy against human trafficking to be implemented by strong measures,77 and for this reason has been particularly concerned at impunity of perpetrators.78 It has recommended public awareness-raising;79 training for enforcement officials, border guards, immigration

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CO/4 (2009) 25; Uzbekistan CCPR/C/UZB/CO/3 (2010) 23; Mozambique CCPR/C/MOZ/CO/1 (2013) 18; Ghana CCPR/C/GHA/CO/1 (2016) 31; Morocco CCPR/C/MAR/CO/6 (2016) 47. E.g. Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 17; Paraguay CCPR/C/PRY/CO/3 (2013) 17; Thailand CCPR/CO/84/THA (2005) 21; Cameroon CCPR/C/CMR/CO/5 (2017) 31. E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 16 (cotton and tobacco); Dominican Republic CCPR/ C/DOM/CO/5 (2012) 18 (domestic and agricultural sectors); Kenya CCPR/CO/83/KEN (2005) 26 (commercial agricultural); Mozambique CCPR/C/MOZ/CO/1 (2013) 18 (agricultural sectors and domestic services); Turkmenistan CCPR/C/TKM/CO/1 (2012) 20 (cotton harvesting); Uzbekistan CCPR/CO/83/UZB (2005) 25 (commercial and agricultural sectors and the cotton industry); Burkina Faso CCPR/C/BFA/CO/1 (2016) 35 (small scale mining operations, farm work and selling drinks); Congo CCPR/C/COD/CO/4 (2017) 45 (mining sector); Mongolia CCPR/C/MNG/CO/6 (2017) 27 (agriculture, mining and horse riding); Pakistan CCPR/C/PAK/CO/1 (2017) 43 (brick kiln industry and domestic settings); El Salvador CCPR/C/SLV/CO/7 (2018) 25 (maquiladora industry); Liberia CCPR/C/LBR/CO/1 (2018) 32 (rubber manufacturing and mining). CCPR General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989 [7]. See chapter on Article 16: Recognition as a Person before the Law, section ‘Situations of Vulnerability to Article 16 Violation’. E.g., Czech Republic CCPR/CO/72/CZE (2001) 13; Serbia and Montenegro CCPR/CO/81/ SEMO (2004) 16. E.g., Paraguay CCPR/C/PRY/CO/3 (2013) 17. E.g., Benin CCPR/CO/82/BEN (2004) 24; Costa Rica CCPR/C/CRI/CO/5 (2007) 12; Kenya CCPR/C/KEN/CO/3 (2012) 17; Paraguay CCPR/C/PRY/CO/3 (2013) 17; Burundi CPR/C/BDI/

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officers, prosecutors and judges, and other relevant agencies (such as labour law enforcement agencies and child welfare agencies);80 preventive strategies through the systematic collection of data on trafficking flows to and in transit through a State’s territory; and international cooperation, especially with neighbouring countries.81 Improved methods for identification of victims of trafficking is a recurring recommendation of the Committee.82 It has expressed concern about both the insufficient identification and investigation of cases of trafficking as a systemic issue,83 at the lack of proper referral mechanisms for victims of trafficking to appropriate services,84 and it has recommended measures to ensure the effective application of the legal and regulatory framework at all levels of government.85 Certain groups are at a particularly higher risk of being sold, trafficked and exploited. These include street children, orphans, stateless persons, migrants,86 members of ethnic minorities and refugees/asylum seekers;87 those passing through a country in a significant migration flow;88 children in care homes, and those in at risk families;89 those affected by cultural practices (such as placing children with a third party as an act of reciprocal assistance or family or community solidarity (vidomégons),90 and ‘temporary’ marriages (siqeh)).91 Trafficking in human organs is also an issue of increasing concern.92

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82 83 85 86 87 88 89 90 92

CO/2 (2014) 16; Finland CCPR/C/FIN/CO/6 (2013) 9; Switzerland CCPR/C/CHE/CO/4 (2017) 41; Hungary CCPR/C/HUN/CO/6 (2018) 28. E.g., Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) 16; Macedonia CCPR/C/MKD/CO/2 (2008) 13; New Zealand CCPR/C/NZL/CO/5 (2010) 15; Turkey CCPR/C/TUR/CO/1 (2012) 15; Mozambique CCPR/C/MOZ/CO/1 (2013) 17; Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 12; Malawi CCPR/C/MWI/CO/1 (2014) 17; Sierra Leone CCPR/C/SLE/CO/1 (2014) 24; Mozambique CCPR/C/MOZ/CO/1 (2013) 17; USA CCPR/C/USA/CO/4 (2014) 14; Greece CCPR/C/GRC/CO/2 (2015) 22; Gambia CCPR/C/GMB/CO/2 (2018) 36. E.g., Albania CCPR/CO/82/ALB (2004) 15; Brazil CCPR/C/BRA/CO/2 (2005) 15; Austria CCPR/C/AUT/CO/4 (2007) 14; Russian Federation CCPR/C/RUS/CO/6 (2009) 18; Estonia CCPR/C/EST/CO/3 (2010) 9; Lithuania CCPR/C/LTU/CO/3 (2012) 11; Malawi CCPR/C/ MWI/CO/1 (2011) 15; Angola CCPR/C/AGO/CO/1 (2013) 17; Czech Republic CCPR/C/ CZE/CO/3 (2013) 16; Paraguay CCPR/C/PRY/CO/3 (2013) 17; Philippines CCPR/C/PHL/ CO/4 (2012) 18; Turkey CCPR/C/TUR/CO/1 (2012) 15; Montenegro CCPR/C/MNE/CO/1 (2014) 14; Mozambique CCPR/C/MOZ/CO/1 (2013) 17; Croatia CCPR/C/HRV/CO/3 (2015) 17; Burkina Faso CCPR/C/BFA/CO/1 (2016) 36; Denmark CCPR/C/DNK/CO/6 (2016) 30; Sweden CCPR/C/SWE/CO/7 (2016) 30; Hungary CCPR/C/HUN/CO/6 (2018) 28. E.g., Colombia CCPR/C/COL/CO/7 (2016) 27; Italy CCPR/C/ITA/CO/6 (2017) 29; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 34; Thailand CCPR/C/THA/CO/2 (2017) 24; Bulgaria CCPR/C/ BGR/CO/4 (2018) 24. USA CCPR/C/USA/CO/4 (2014) 14. 84 Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 12. Bolivia CCPR/C/BOL/CO/3 (2013) 17. E.g., Madagascar CCPR/C/MDG/CO/4 (2017) 39; Serbia CCPR/C/SRB/CO/3 (2017) 30. E.g., Thailand CCPR/CO/84/THA (2005) 20. E.g., Slovenia CCPR/C/SVN/CO/3 (2016) 19; Italy CCPR/C/ITA/CO/6 (2017) 28. E.g., Lithuania CCPR/C/LTU/CO/3 (2012) 11; Serbia CCPR/C/SRB/CO/3 (2017) 30. E.g., Benin CCPR/CO/82/BEN (2004) 24. 91 E.g., Iran CCPR/C/IRN/CO/3 (2011) 20. E.g., Kenya CCPR/C/KEN/CO/3 (2012) 17 (continuing reports of trafficking in persons for labour, sexual exploitation and for body parts, particularly of people with albinism (Arts 6, 7 and 8)); Mozambique CCPR/C/MOZ/CO/1 (2013) 17 (reports of trafficking in body parts for use

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Special vigilance is needed by countries representing a trafficking source,93 destination,94 transit point95 or any combination of these.96 The Committee has consistently recommended that resources be devoted to the investigation, prosecution and imposition of commensurate penalties on those responsible;97 that medical, psychological, social, legal and other assistance be available to victims of trafficking;98 in addition to reparation and compensation, including rehabilitation;99 that a place of refuge be provided to victims to facilitate their giving evidence against those responsible,100 as well as other measures of witness protection;101 that shelters be provided for their protection more generally;102 that there be proper referral to the asylum system of those potentially in need of international protection;103 that those who have been trafficked be identified as victims, not just as witnesses;104 that those who have been forced into prostitution certainly not be criminalised;105 and that victims of trafficking brought into a country under false pretences or through coercion not be penalised for their illegal presence.106

93 94 95 96

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100 101 102

103 104 106

by so called witch doctors in their traditional medicine (Arts 2, 6, 7, 8 and 24)); Nepal CCPR/C/ NPL/CO/2 (2014) 18 (concern at the persistence of trafficking in human organs). E.g., Azerbaijan CCPR/CO/73/AZE (2001) 15; Tajikistan CCPR/CO/84/TJK (2005) 24; Albania CCPR/C/ALB/CO/2 (2013) 14; Bulgaria CCPR/C/BGR/CO/4 (2018) 23. E.g., Greece CCPR/CO/83/GRC (2005) 10; Belize CCPR/C/BLZ/CO/1 (2013) 17. E.g., Republic of Moldova CCPR/CO/75/MDA (2002) 10; Cape Verde CCPR/C/CPV/CO/1 (2012) 13; Mozambique CCPR/C/MOZ/CO/1 (2013) 17; HK SAR CCPR/C/CHN HKG/CO/3 (2013) 20; Czech Republic CCPR/CO/72/CZE (2001) 13. E.g., Serbia and Montenegro CCPR/CO/81/SEMO (2004) 16; Thailand CCPR/CO/84/THA (2005) 20; Angola CCPR/C/AGO/CO/1 (2013) 17; Portugal CCPR/C/PRT/CO/4 (2012)13; Spain CCPR/C/ESP/CO/6 (2015) 22; Benin CCPR/C/BEN/CO/2 (2015) 14; Romania CCPR/ C/ROU/CO/5 (2017) 37. E.g., Russian Federation CCPR/C/RUS/CO/6 (2009) 18; Philippines CCPR/C/PHL/CO/4 (2012) 18; Albania CCPR/C/ALB/CO/2 (2013) 14; Liberia CCPR/C/LBR/CO/1 (2018) 33; Kuwait CCPR/C/KWT/CO/3 (2016) 34. See also El Salvador CCPR/C/SLV/CO/7 (2018) 25 (obstruction of investigations due to corruption in the judicial system). E.g., Japan CCPR/C/JPN/CO/5 (2008) 23; Russian Federation CCPR/C/RUS/CO/6 (2009) 18; Philippines CCPR/C/PHL/CO/4 (2012) 18; HK SAR CCPR/C/CHN HKG/CO/3 (2013) 20; Uruguay CCPR/C/URY/CO/5 (2013) 16; Albania CCPR/C/ALB/CO/2 (2013) 14; Ukraine CCPR/C/UKR/CO/7 (2013) 16; Mozambique CCPR/C/MOZ/CO/1 (2013) 17; Mauritius CCPR/C/MUS/CO/5 (2017) 26; Bulgaria CCPR/C/BGR/CO/4 (2018) 24. E.g., Macedonia CCPR/C/MKD/CO/2 (2008) 13; Jamaica CCPR/C/JAM/CO/3 (2011) 22; Cape Verde CCPR/C/CPV/CO/1 (2012) 13; China (Macao) CCPR/C/CHN HKG/CO/3 (2013) 13; Belize CCPR/C/BLZ/CO/1 (2013) 17; Indonesia CCPR/C/IDN/CO/1 (2013) 18; Malta CCPR/C/MLT/CO/2 (2014) 15; Costa Rica CCPR/C/CRI/CO/6 (2016) 23. E.g., Czech Republic CCPR/CO/72/CZE (2001) 13; Slovenia CCPR/CO/84/SVN (2005) 11; Lithuania CCPR/CO/80/LTU (2004) 14. E.g., Albania CCPR/CO/82/ALB (2004) 15; Serbia and Montenegro CCPR/CO/81/SEMO (2004) 16; Germany CCPR/C/DEU/CO/6 (2012) 13; Bulgaria CCPR/C/BGR/CO/4 (2018) 24. Czech Republic CCPR/CO/72/CZE (2001) 13; El Salvador CCPR/C/SLV/CO/6 (2010) 13; Mongolia CCPR/C/MNG/CO/5 (2011) 21; Maldives CCPR/C/MDV/CO/1 (2012) 17; Suriname CCPR/C/SUR/CO/3 (2015) 29; Iraq CCPR/C/IRQ/CO/5 (2015) 32; Dominican Republic CCPR/C/DOM/CO/6 (2017) 19; Mongolia CCPR/C/MNG/CO/6 (2017) 27, 28. E.g., Uruguay CCPR/C/URY/CO/5 (2013) 16. E.g., Finland CCPR/C/79/Add.91 (1998) 9. 105 E.g., India CCPR/C/79/Add.81 (1997) 31. Israel CCPR/C/79/Add.93 (1998) 16.

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A RT I C L E 8 ( 3 ) :

F O R C E D O R C O M P U L S O RY L A B OU R

Article 8(3)(a): No One Shall be Required to Perform Forced or Compulsory Labour The term ‘forced or compulsory labour’ is defined in Article 2(1) of the 1930 ILO Forced Labour Convention to mean ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. It is not defined for the purposes of Article 8 of the Covenant, but its ILO meaning was noted in Bernadette Faure v. Australia. The author claimed that the obligation to perform labour in order to be eligible for unemployment benefits under the ‘Work for Dole Program’ was a violation of Article 8(3) because unemployment benefits were reduced, in accordance with the programme’s terms, as a result of her failure to participate in it. The Committee accepted that relevant ILO instruments may help to elucidate the meaning of ‘forced or compulsory labour’ under Article 8, but it was ultimately for the Committee to elaborate the indicia of prohibited conduct. Forced or compulsory labour ‘covers a range of conduct extending from, on the one hand, labour imposed on an individual by way of criminal sanction, notably in particularly coercive, exploitative or otherwise egregious conditions, through, on the other hand, to lesser forms of labour in circumstances where punishment as a comparable sanction is threatened if the labour directed is not performed’.107 In concluding that there was no violation of Article 8(3) the Committee was influenced by the exemption in Article 8(3)(c)(iv) for work or service forming part of normal civil obligations, and the absence in this instance of a degrading or dehumanising aspect of the specific labour performed. To ‘qualify as a normal civil obligation, the labour in question must, at a minimum, not be an exceptional measure; it must not possess a punitive purpose or effect; and it must be provided for by law in order to serve a legitimate purpose under the Covenant’. However, because no remedy was available to challenge the substantive scheme for those who were subject to it, the Committee found violation of Article 2(3) read together with Article 8.108 The claim of violation of Article 8(3)(a) by Sri Lankan attorneys in Silvia v. Zambia lay in a deduction of 35 per cent tax on an inducement allowance on their appointment as assistant legal aid counsel to the Zambian Government, combined with the stipulation that free return travel to Sri Lanka was available only if they performed at least twenty-four months service. Because of the tax deduction they were not able to return to Sri Lanka before they had served twentyfour months. It failed because they did not sufficiently substantiate how the 107 Faure v. Australia, CCPR/C/85/D/1036/2001, 31 October 2005 [7.5]. 108 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights.

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taxation of their inducement allowance could constitute forced labour under Article 8(3)(a).109 The Committee has raised unusual Article 8 questions with States, including: Panama, noting that under the Commercial Code seafarers who abandoned their vessels might be required under pain of imprisonment to complete the term of their contract and to work for one month without payment;110 and Costa Rica, when a provision in the penal code gave a convicted person the option of paying off a fine imposed by working without remuneration, inter alia, for private enterprise.111 Concerning the treatment of public servants, it asked Zambia about the promised repeal of powers by which public service employees could be forced to remain in their jobs against their will,112 and it sought clarification from Mexico of a constitutional provision that made obligatory ‘the performance of municipal office and of an office held through . . . popular election’ and asked whether a Mexican citizen who had been elected to a civil office, but refused to accept it, could be compelled against his will.113 The Committee was also concerned about reports that non-citizens who came to Japan under industrial training and technical internship programmes were forced to work overtime without compensation and were often deprived of their passports by their employers;114 and at the sponsorship system in Kuwait which excluded migrant domestic workers from key employment regulations and did not ensure respect for their basic human rights.115 Article 8(3)(b): Allows Imprisonment with Hard Labour as Punishment for a Crime There are a number of prerequisites to be satisfied before States may rely on Article 8(3)(b) to permit the imposition of any sentence of hard labour as punishment for a crime. They are self-evident but worth spelling out: the punishment imposed must be imprisonment with hard labour; it must be imposed for a crime; the criminal sentence must issue from a competent court; it is a concession that applies only in those countries where imprisonment with hard labour is retained.116 There is no equivalent to Article 8(3)(b) in the European Convention.

109 Silva et al. v. Zambia, CCPR/C/75/D/825 28/1998, 25 July 2002 [6.3]. See also Wolf v. Panama, CCPR/C/44/D/289/1988, 26 March 1992 [6.8] (the author claimed to have been subjected to forced labour while awaiting sentence, but it was not sufficiently substantiated as to raise issues under Art. 8(3)(a)). 110 Panama A/39/40 (1984) 412. 111 Costa Rica A/35/40 (1980) 357 (the explanation was that there was no question that private enterprise was given free labour, since it was required to pay the corresponding wage as a partial payment of the fine). 112 Zambia A/43/40 (1988) 99. 113 Mexico A/38/40 (1983) 69. 114 Japan CCPR/C/JPN/CO/5 (2008) 24. 115 Kuwait CCPR/C/KWT/CO/2 (2011) 18. 116 A/2929 Ch.VI (1955), p. 33 [20]: ‘imprisonment with “hard labour” existed as a form of penalty under the penal systems of some countries. It was therefore thought necessary to include a suitable provision which would take such systems into account.’

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The retention of imprisonment with hard labour in a number of countries has prompted the Committee to enquire about its abolition.117 Although a sentence of dwindling usage, it was variously imposed as a result of commuting the death penalty,118 and as a discretionary sentencing option for certain crimes.119 Nowak contends that a sentence to light (as opposed to hard) labour would not be covered by Article 8(3)(b), as it is a specific exception to which the general argument e majore ad minus does not apply.120 Article 8(3)(c): Exclusions from ‘Forced or Compulsory Labour’

(i) Work or Service in Court-ordered Detention, or When Conditionally Released Article 8(3)(c)(i) excludes from the definition of ‘forced or compulsory labour’ any work or service normally required of a person who is ‘under detention in consequence of a lawful order of a court’. The presumption of innocence would militate against any such work or service which is punitive in pre-trial detention.121 The travaux suggest that this provision ‘was intended to cover ordinary prison work which those under detention pursuant to a court order might be required to do. This would include routine work performed in the course of detention and work done to promote the delinquent’s rehabilitation.’ The inclusion of the words ‘normally required’ in Article 8(3)(c)(i) was ‘intended to bring out the fact that the clause was intended to refer to work ordinarily done by prisoners and not to hard labour’, and to provide a safeguard against arbitrary decisions by prison authorities.122 As to payment for work undertaken by prisoners, in Radosevic v. Germany the Committee stated that Article 8(3)(c)(i), read in conjunction with Article 10(3), requires that work performed by prisoners primarily be aimed at their social rehabilitation, as indicated by the word ‘normally’. The relevant part of the claim was inadmissible because it was based on the lack of adequate remuneration, and Article 8(3)(c)(i) does not specify that such remuneration is required. States may themselves choose the modalities for ensuring that treatment of prisoners, including any work or service normally required of them, is essentially directed at the Article 10(3) aims of rehabilitation.123 The Committee has asked countries about their compliance with Article 8(3)(c)(i), including questioning: Norway about the competence of the bodies ordering the work

117 Tunisia A/45/40 (1990) 517. 118 Syria CCPR A/32/44 (1977) 8/115(e). 119 UK (British Virgin Islands) CCPR A/34/40 (1979) 354. 120 Nowak, CCPR Commentary, p. 203; cf. the Committee’s questioning of Korea A/47/40 (1992) 481 (as for Art. 8, further details were requested about the provisions of the Criminal Code which provided for penal servitude ‘with a certain amount of labour’). 121 Cf. Nowak, CCPR Commentary, p. 204. 122 A/2929, Ch.VI (1955), pp. 33 4 [22]. 123 Radosevic v. Germany, CCPR/C/84/D/1292/2004, 22 July 2005 [7.3].

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or service that the provision covers;124 Italy about time spent in a ‘labour establishment’ or ‘farm colony’ as part of a sentence, and how this could be reconciled with Article 8;125 Viet Nam about the policy of rehabilitation for those sentenced to prison, and the functioning of ‘re-education camps’;126 and it expressed concern to Equatorial Guinea at the practice of imposing forced labour on the inmates of various detention facilities.127

(ii) Military Service, and Alternatives if Conscientious Objection is Recognised In a number of early conscientious objection cases the Committee avoided answering whether Article 18 included a right to conscientious objection, until it concluded in L.T.K. v. Finland that Article 18 does not guarantee such a right, strongly influenced by the fact that the only reference in the Covenant to conscientious objection was in Article 8(3)(c)(ii).128 In clear departure from that position in J.P. v. Canada it stated that ‘conscientious objection to military service’ was certainly protected by Article 18,129 and it made a number of subsequent Article 18 findings on the basis that the conviction and sentencing of conscientious objectors unjustifiably restricted their ability to manifest their religion or belief.130 Following a recent and more radical shift, the Committee now considers that conviction and sentencing of an individual for refusing to be drafted for compulsory military service, where it derives from religious beliefs, amounts to an infringement of their freedom of conscience, in breach of Article 18(1), as an instance of the absolutely protected right to hold a belief.131 Parallel decisions under Article 26 are also relevant, such as those in Frederic Foin v. France when the Committee found that twenty-four months of non-military service for a recognised conscientious objector violated Article 26 as a substitute for twelve months compulsory military service.132

124 Norway A/33/40 (1978) 234, 250 (Temperance Committee not formally a court of law, but was independent and bound by formal procedural rules to such an extent that it must be considered as a court). 125 Italy A/36/40 (1981) 117; Italy A/44/40 (1989) 567. 126 Viet Nam A/45/40 (1990) 467, 484. 127 Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 6. 128 L.T.K. v. Finland, CCPR/C/OP/2 at 61 (1990), 9 July 1985 [5.2]: ‘neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3(c)(ii) of article 8, can be construed as implying that right’. 129 J.P. v. Canada, CCPR/C/43/D/446/1991, 7 November 1991 [4.2]. 130 See Yoon & Choi v. Korea, CCPR/C/88/D/1321 1322/2004, 3 November 2006; Jung et al. v. Korea, CCPR/C/98/D/1593 1603/2007, 23 March 2010. For developments to 2009, see Takemura, International Human Right to Conscientious Objection. 131 Jeong et al. v. Korea, CCPR/C/101/D/1642 1741/2007, 24 March 2011 [7.4]. See also Kim et al. v. Korea, CCPR/C/112/D/2179/2012, 15 October 2014 [7.4]; Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015 [7.8]. 132 Foin v. France, CPR/C/67/D/666/1995, 9 November 1999 [10.3].

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Article 8(3)(c)(ii) must be viewed in the light of these developments.133 It may be said that military service, and alternative service which takes permissible (non-discriminatory) forms, do not constitute ‘forced or compulsory labour’ by virtue of Article 8(3)(c)(ii). The exclusion should in principle not extend to treatment that is incompatible with Article 18 or 26, although the Committee has yet to make a finding to that effect; and it would not cover more obvious incompatibility, for example, the recruitment of children for military service.134 In this context it is relevant to observe that Article 11 of the ILO Forced Labour Convention states that forced or compulsory labour may be imposed only upon ‘adult able-bodied males who are of an apparent age of not less than 18 and not more than 45 years’.

(iii) Service in Cases of Emergency or Calamity Threatening the Life or Well-Being of the Community Article 8(3)(c)(iii) operates to exclude from the scope of ‘forced or compulsory labour’ broadly any service exacted in cases of emergency or calamity threatening the life or well-being of the community. Its counterpart in Article 2(2)(d) of the ILO Forced Labour Convention is informative in referring to ‘any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population’. The correlation between the two provisions led the Committee to ask Poland whether the practice of obliging the performance of certain labour ‘in the general interest’ was consistent with Article 8(3)(c)(iii), given that it was found to be inconsistent with Article 2(2)(d) of the Forced Labour Convention;135 and to recall in the case of Congo that ‘compulsory labour in the social interest’ previously prompted ILO concern.136 Since Article 8(3) is not listed in Article 4(2) among the non-derogable provisions, derogation is allowed under Article 4(1) in times of officially proclaimed

133 The treatment of conscientious objection to military service is discussed further in chapters on Article 18: Freedom of Thought, Conscience and Religion, section ‘Compulsory Military Service’; and Article 26: Equality before the Law Equal Protection of the Law, section ‘Alternatives to Military Service’. 134 Paraguay CCPR/C/PRY/CO/2 (2006) 14 (criticism for not reporting on steps taken to abolish the recruitment of children for military service); Congo CCPR/C/COD/CO/3 (2006) 18 (forced recruitment of children into armed militias and into the regular army). On use of children in military service, see chapter on Article 24: Protection Required for Children, section ‘Slavery, Servitude and Forced Labour (Article)’. 135 Poland A/42/40 (1987) 72, 74. 136 Congo CCPR A/42/40 (1987) 232.

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public emergency which threatens the life of the nation. (Article 8(1) and (2) are non-derogable.)

(iv)

Work or Service which Forms Part of Normal Civil Obligations

In the drafting of Article 8(3)(c)(iv) the decision was made to discontinue an unacceptable distinction made in the ILO Forced Labour Convention between Article 2(2)(b), which excludes from forced or compulsory labour ‘work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country’, and Article 2(2)(e), which applied to non-self-governing territories to exclude ‘minor communal services of a kind . . . performed by the members of the community in the direct interest of the said community’, which could be considered as normal civic obligations (but were of a decidedly colonial nature).137 There was also the view that it was not necessary to mention ‘minor communal services’ in Article 8(3)(c)(iv) since ‘normal civic obligations’ was broader. As already noted, the Committee clarified to some extent the meaning of a normal civil obligation in Faure v. Australia. It has raised related issues with various countries, observing that Tunisia’s obligatory use of civilian labour as a means for combating unemployment appeared to be incompatible with Article 8;138 it requested clarification from New Zealand in relation to the Cook Islands of the term ‘community service order’ which might be interpreted as a form of forced labour (it meant that prisoners could work if they chose, in return for a modest remuneration);139 and it expressed regret to Tanzania that it had not repealed provisions which led to forced labour on communal projects.140

I M P L E M E N TAT I O N The ingredients of domestic compliance with Article 8 are most prominent in the need for the prohibitions in Article 8 to be embodied in legislation, including to prohibit effectively slavery (Article 8(1)),141 slavery-like conduct such as

137 139 140 141

A/2929, Ch.VI (1955), p. 34 [25]. 138 Tunisia A/45/40 (1990) 517, 535. New Zealand (Cook Islands) A/40/40 (1985) 437, 452. Tanzania CCPR/C/79/Add.97 (1998) 9. E.g., Bulgaria A/34/40 (1979) 120 (the prohibition of slavery and similar practices was not explicitly embodied in legislation, as required under Art. 8); Congo A/42/40 (1987) 232 (the report did not indicate what law prohibited slavery and trafficking in slaves in the absence of an explicit provision of the Constitution); Brazil CCPR/C/BRA/CO/2 (2005) 14 (concern at the absence of effective criminal sanctions against practices of slave labour and forced labour); Mauritania CCPR/C/MRT/CO/1 (2013) 17 (ensure the effective implementation of legislation criminalising slavery); Kazakhstan CCPR/C/KAZ/CO/2 (2016) 35, 36 (no explicit criminalisa tion of slavery and slavery like practices).

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trafficking,142 child labour,143 work in slavery-like conditions (Article 8(2)),144 and forced or compulsory labour (Article 8(3)).145 Enforcement is an equally important accompaniment. The Committee has consistently issued reminders of the need for the investigation, prosecution and punishment of perpetrators, among other measures to eradicate chattel slavery,146 sexual slavery,147 child labour,148 bonded labour, domestic servitude, forced marriage,149 trafficking,150 slave labour and forced labour.151 It has been concerned when the prosecution or conviction rates for trafficking and other slavery-like practices are low,152 and when sentences are lenient.153 Effective remedies must also be secured for victims.154 The implementation

142 E.g., Japan CCPR/C/79/Add.102 (1998) 29 (concern at the absence of specific legal provisions prohibiting the bringing of foreign children to Japan for the purpose of prostitution); Korea CCPR/C/KOR/CO/4 (2015) 40 (the definition of trafficking in the Criminal Code criminalised only the acts of buying and selling, which hindered the prosecution of those who have recruited and exploited migrant workers through contractual deception). 143 Madagascar CCPR/C/MDG/CO/4 (2017) 42 (ensure that the law prohibits and defines child labour). 144 Kazakhstan CCPR/C/KAZ/CO/2 (2016) 35, 36 (no explicit criminalisation of slavery like practices). 145 E.g., Peru CCPR/C/PER/CO/5 (2013) 20 (take appropriate legislative measures to ensure that forced labour and domestic servitude are prohibited and punished in accordance with Art. 8); Poland CCPR/C/POL/CO/7 (2016) 28 (ensure that forced labour is prohibited, in accordance with Art. 8). 146 E.g., Sudan CCPR/C/79/Add.85 (1997) 12; Mauritania CCPR/C/MRT/CO/1 (2013) 17; Chad CCPR/C/TCD/CO/1 (2009) 31. 147 E.g., Japan CCPR/C/JPN/CO/6 (2014) 14 (‘comfort women’). 148 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 16; Ghana CCPR/C/GHA/CO/1 (2016) 32; Dominican Republic CCPR/C/DOM/CO/6 (2017) 20; Madagascar CCPR/C/MDG/CO/4 (2017) 42; El Salvador CCPR/C/SLV/CO/7 (2018) 26. 149 E.g., Paraguay CCPR/C/PRY/CO/3 (2013) 18; Peru CCPR/C/PER/CO/5 (2013) 20; Nepal CCPR/C/NPL/CO/2 (2014) 18; Turkmenistan CCPR/C/TKM/CO/2 (2017) 27; Bahrain CCPR/C/BHR/CO/1 (2018) 48. 150 E.g., Turkmenistan CCPR/C/TKM/CO/1 (2012) 11; Ukraine CCPR/C/UKR/CO/7 (2013) 16; Greece CCPR/C/GRC/CO/2 (2015) 21; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 34; Moldova CCPR/C/MDA/CO/3 (2016) 20; Poland CCPR/C/POL/CO/7 (2016) 27, 28; Madagascar CCPR/C/MDG/CO/4 (2017) 40; Swaziland CCPR/C/SWZ/CO/1 (2017) 43; Thailand CCPR/ C/THA/CO/2 (2017) 24; Bulgaria CCPR/C/BGR/CO/4 (2018) 24; Guinea CCPR/C/GIN/CO/3 (2018) 40; El Salvador CCPR/C/SLV/CO/7 (2018) 26; Hungary CCPR/C/HUN/CO/6 (2018) 28. 151 E.g., Brazil CCPR/C/BRA/CO/2 (2005) 14; Japan CCPR/C/JPN/CO/6 (2014) 15. 152 E.g., Bolivia CCPR/C/BOL/CO/3 (2013) 17; Korea CCPR/C/KOR/CO/4 (2015) 40; Burundi CPR/C/BDI/CO/2 (2014) 16; Turkey CCPR/C/TUR/CO/1 (2012) 15; Namibia CCPR/C/NAM/ CO/2 (2016) 25; Mongolia CCPR/C/MNG/CO/5 (2011) 21; Lithuania CCPR/CO/80/LTU (2004) 14; Poland CCPR/C/POL/CO/7 (2016) 27; Mauritius CCPR/C/MUS/CO/5 (2017) 25; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 38; El Salvador CCPR/C/SLV/CO/7 (2018) 25; Guinea CCPR/C/GIN/CO/3 (2018) 39; Liberia CCPR/C/LBR/CO/1 (2018) 32. 153 E.g., Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) 16; Mongolia CCPR/C/MNG/CO/5 (2011) 21; Greece CCPR/C/GRC/CO/2 (2015) 21. 154 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 16; Kenya CCPR/C/KEN/CO/3 (2012) 17; Mauritania CCPR/C/MRT/CO/1 (2013) 17; Japan CCPR/C/JPN/CO/6 (2014) 14, 15; Greece CCPR/C/GRC/CO/2 (2015) 22; Haiti CCPR/C/HTI/CO/1 (2014) 14.

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of measures against human trafficking more broadly has already been discussed above.155 Implementation of related and overlapping Covenant provisions is also relevant, including Article 3 (in the gender discrimination inflicted), Article 7 (particularly the coincidence with cruel, inhuman and degrading treatment), Article 23 (forced marriage) and Article 24 (e.g., birth registration, to render children less vulnerable to trafficking).

C O N C L US I O N Article 8 countenances no latitude when mandating that no one shall be held in ‘slavery’ or ‘servitude’, or required to perform ‘forced or compulsory labour’. Much therefore turns on the meaning of those terms in Article 8(1)–(3), as well as scope of the exclusions from Article 8(3). The Committee’s jurisprudence, limited as it is, has mostly been of a definitional nature, particularly in relation to Article 8(3). The Committee’s treatment of forced marriage is anomalous in that it clearly falls within Article 8 as a form of servitude, but because of its coincidence with other Covenant provisions with better developed jurisprudence and requirements for implementation (Articles 3, 23 and 24) it receives more attention as a matter of gender discrimination, protection for the family and the rights of the child. The review process valuably demonstrates that Article 8 does not merely address slavery as a form of oppression from earlier eras with only dwindling significance. Modern forms of human exploitation give Article 8 renewed force, reflected in extensive Committee Concluding Observations spanning traditional forms of slavery, and nearly all forms of servitude (debt bondage, bonded labour, forced marriage, domestic servitude, child exploitation and human trafficking) and forced labour. The urgency in the Committee’s calls for States to respond to the challenges of human trafficking is particularly marked, and is practical, specific and detailed, including international cooperation with special border vigilance, as well as a range of preventive domestic measures. 155 See section ‘Human Exploitation by Trafficking’, above.

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Article 9: Liberty and Security

INTRODUCTION Page 241 ARTICLE 9(1): THE RIGHT TO PERSONAL SECURITY 246 ARTICLE 9(1): THE RIGHT OF LIBERTY 250 ARTICLE 9(2): THE RIGHT TO BE INFORMED, AT THE TIME OF ARREST, OF THE REASONS FOR ARREST AND PROMPTLY BE INFORMED OF ANY CHARGES 264 ARTICLE 9(3): JUDICIAL CONTROL OF DETENTION 267 ARTICLE 9(4): RIGHT TO TAKE PROCEEDINGS BEFORE A COURT REGARDING THE LAWFULNESS OF DETENTION 273 ARTICLE 9(5): ENFORCEABLE RIGHT TO COMPENSATION FOR VICTIMS OF UNLAWFUL ARREST OR DETENTION 277 IMPLEMENTATION 277 CONCLUSION 279

Covenant Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without 240

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delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Comparable Provisions in Other International Instruments European Convention: Article 5. American Convention on Human Rights: Article 7. African Charter on Human and Peoples’ Rights: Article 6.

INTRODUCTION Scope Article 9(1) proclaims two independent rights: the right to liberty and the right to personal security. The right to liberty occupies nearly all of the text of Article 9 and is summarised in the commands that no one shall be subjected to ‘arbitrary’ arrest or detention, or deprived of liberty except on grounds, and according to procedures, established by law.1 It regulates detention directed at a wide variety of ends, including criminal law enforcement (and non-compliance of a lawful court order), the protection of national security, border control, the institutional care of children, involuntary hospitalisation of the mentally ill or drug addicts (for their protection or that of others), and to contain infectious or contagious disease.2 The term ‘arbitrary’ is the instrumentality for subjecting any loss of liberty to close scrutiny wherever it occurs. It requires, among other things, cogent and individualised justification for detention, frequent periodic reassessment of its necessity (especially as circumstances change), the shortest duration necessary to achieve its objectives, and the use of the least restrictive alternatives. Additional stringency applies to the vulnerable, such as children and those with mental conditions. The safeguards in support of the right to liberty offer substantive, not merely procedural, protection. Article 9(2) and (3) directs that anyone arrested be ‘promptly’ informed of any charges against them; and anyone arrested or detained on a criminal charge be both ‘promptly’ brought under judicial 1 For detailed coverage of UN guarantees against arbitrary arrest and detention, see Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law (Oxford University Press, 2009), ch. 11. 2 European Convention Art. 5 provides a detailed listing of permitted purposes for detention, but the Commission on Human Rights preferred to rely on the more flexible concept of ‘arbitrary’ arrest or detention than such a listing (A/2929 (1955), Ch.VI. p. 35, [28] [29]). For further examples, see General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/ C/GC/35 (GC 35) [5].

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supervision and entitled to be tried within a ‘reasonable’ time or released. Article 9(4) aims to bring to a head whether any detention is permissible, and lends haste to the process by entitling anyone suffering a loss of liberty to take proceedings before a court to determine ‘without delay’ the lawfulness of their arrest or detention. Article 9(5) provides an enforceable right to compensation where it is unlawful. These italicised terms impose discipline on States to meet strict temporal limits, providing an early opportunity for objection to the unlawfulness or arbitrariness of any detention in order to forestall its continuation. If detention is to continue pending trial, judicial authority is to be exercised to secure appropriate conditions for further custodial remand. In order to enable challenges to improper detention anyone detained is also to have access to legal counsel, medical assistance where necessary, and may inform family members (though this is established by practice rather than the text of Article 9). The safeguards within Article 9 provide valuable support to other Covenant guarantees. For example, Article 9(3) aims to avoid trial delays which are also contrary to the fair trial provisions of Article 14(1) and (3)(c) (undue delay), of acute importance on charges concerning capital offences because of the added need to minimise uncertainty about the accused’s fate. Prompt judicial control under Article 9(3) militates against incommunicado detention which routinely jeopardises the right to life protected by Article 6. The very presence of the accused in court at that stage may disclose marks of ill-treatment and prevent further violation of Article 7. Issues of forced confession may be raised then to prevent an unfair trial (Articles 14(3)(g)), and in capital cases may avoid the imposition of the death penalty in violation of Article 6. When addressing continued detention of juveniles regard must be had for their vulnerability and the need to promote rehabilitation under Article 14(4), as well as broader protective measures owed under Article 24. In short, Article 9 operates to regulate strictly the treatment of those arrested or detained. It provides the apparatus for assessing, halting and redressing unlawful arrest and detention, and the violation of other Covenant rights ensuing from vulnerability while detained. Article 9 speaks little of the right to personal security beyond enunciating in Article 9(1) that ‘everyone has the right to . . . security of person’. No other Covenant provision makes mention of it. It is an unusual example of a right subsisting solely in the form of proclamation, without elaboration in further guarantees and without clearly stated scope or limits. The right is concerned with bodily and mental integrity and arises in different contexts which overlap with other rights, particularly as it relates to death threats or attempts on life, the excessive use of force, and intimidation (e.g., of trial witnesses, journalists or activists, or as an aspect of hate crime).

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Article 9 is not listed in Article 4 as non-derogable, though as discussed in the chapter on Article 4, certain aspects of Article 9 are treated as non-derogable.3 Interaction between Article 9 and Other Covenant Provisions Article 9 issues are enlivened in a broad range of circumstances involving the parallel violation of other Covenant rights, including: Article 6, when life and personal security are threatened by enforced disappearance,4 by violence against civilians in times of internal conflict,5 or hate crime such as that against LGBTI individuals6 and members of religious, racial or other minorities;7 Articles 7 and 10 through confinement involving isolation,8 secrecy,9 mandatory or indefinite immigration detention10 (personal security may also the threatened by abuse from fellow detainees and staff,11 as well as the mistreatment of vulnerable detainees);12 Article 12 in unlawful house arrest,13 or the arrest of those not complying with restrictions on movement imposed in a non-official curfew;14 Article 13 by the detention of aliens (while their status is being determined) where it is not reasonable, necessary and proportionate,15 and also involving Article 24 if inadequate protection is accorded to children.16 Article 14 is 3 See chapter on Article 4: Derogation in Times of Officially Proclaimed Public Emergency Threatening the Life of the Nation, section ‘Article 4(2): Non derogable Rights and Freedoms’. 4 See chapter on Article 6: The Right to Life, section ‘Enforced Disappearance’. 5 Congo CCPR/C/COD/CO/4 (2017) 27. For similar situations, see chapter on Article 6: The Right to Life, section ‘War’. 6 E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 12; Morocco CCPR/C/MAR/CO/6 (2016) 11; Turkmenistan CCPR/C/TKM/CO/2 (2017) 8; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 14(b); Lebanon CCPR/C/LBN/CO/3 (2018) 13; Liberia CCPR/C/LBR/CO/1 (2018) 18. 7 E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 33 (religious minorities); Serbia CCPR/C/SRB/CO/3 (2017) 10 (Roma); Hungary CCPR/C/HUN/CO/6 (2018) 17 (Roma, Muslims, migrants and refugees); Norway CCPR/C/NOR/CO/7 (2018) 16 (Romani /Tater, Roma, migrants, Muslims, Jews and Sami). 8 E.g., Poland CCPR/C/POL/CO/7 (2016) 35 (juveniles in temporary isolation rooms as a form of disciplinary sanction); Norway CCPR/C/NOR/CO/7 (2018) 24, 26 (isolation and exclusion, including for those with psychosocial disabilities). 9 E.g., Congo CCPR/C/COD/CO/4 (2017) 35 (secret detention at unofficial places); Gambia CCPR/C/GMB/CO/2 (2018) 31 (detention in unofficial places, including the ‘bambadinka’ (crocodile hole)); Lithuania CCPR/C/LTU/CO/4 (2018) 23 (secret detention). 10 E.g., USA CCPR/C/USA/CO/4 (2014) 15; Kuwait CCPR/C/KWT/CO/3 (2016) 28; Australia CCPR/C/AUS/CO/6 (2017) 37. See also section ‘Reasonableness, Necessity and Proportionality’, below. 11 Spain CCPR/C/ESP/CO/6 (2015) 15; Cameroon CCPR/C/CMR/CO/5 (2017) 13(c). 12 See chapter on Article 6: The Right to Life, section ‘Detainees (on Remand or in Prison Custody, or Detained for Health Reasons)’. 13 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.4]; Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009 [2.3], [7.5]. 14 Turkmenistan CCPR/C/TKM/CO/2 (2017) 28. 15 See chapter on Article 13: Procedural Safeguards in the Expulsion of Aliens, section ‘Interaction between Article 13 and Other Covenant Provisions’. 16 F.K.A.G. et al. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013 [9.3]. See section ‘Reasonableness, Necessity and Proportionality’, below; Czech Republic CCPR/C/CZE/CO/2 (2007) 15 (concern that a foreigner under 18 awaiting deportation may be detained for up to ninety days (Arts 10 and 24)).

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relevant (with Articles 2 and 26) where over-representation in prison of certain sections of society (notably indigenous or foreigners) suggests discrimination in sentencing.17 Article 14 concerns also arise in connection with detention regimes which allow automatic extension with inadequate judicial review,18 the excessive length of pre-trial detention (an area of overlap between Articles 9(3) and 14(3)(c)),19 and the operation of laws granting broad powers of arrest and detention for the vaguely defined offences, usually directed at terrorism.20 Article 9 combines with Article 17 in the automatic DNA testing of those subject to a custodial sentence;21 and Article 18 when members of religious minorities are detained under laws which restrict or prohibit religious practice.22 Article 19 applies with Article 9 in a broad range of circumstances, including to detention in response to acts perceived as offensive to the State religion or insulting to the monarchy,23 defamation against public authorities24 or blasphemy,25 or occurs as a reaction merely to political opposition26 (including detention for the purpose of ‘attitude adjustments’).27 Both limbs of Article 9 are relevant in combination with Article 19 when journalists, human rights defenders and political opponents are detained, and exposed to personal security risks,28 which often takes the form of intimidation and violence (and in some cases murder).29 Article 9 coincides with Article 21, where the arbitrariness of

17 E.g., Australia CCPR/C/AUS/CO/6 (2017) 39; Italy CCPR/C/ITA/CO/6 (2017) 30. 18 Italy CCPR/C/ITA/CO/6 (2017) 32. See also Switzerland CCPR/C/CHE/CO/4 (2017) 38 (con finement of mentally ill offenders in regular prisons, or in psychiatric institutions for long periods, which may be renewed irrespective of the sentence given). 19 See section ‘Trial Within a Reasonable Time’, below. 20 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 47; Morocco CCPR/C/MAR/CO/6 (2016) 17; Bangladesh CCPR/C/BGD/CO/1 (2017) 9; Jordan CCPR/C/JOR/CO/5 (2017) 12; Swaziland CCPR/C/SWZ/CO/1 (2017) 36; Bahrain CCPR/C/BHR/CO/1 (2018) 29; Liberia CCPR/C/LBR/ CO/1 (2018) 14. For other broad terrorism laws, see Australia CCPR/C/AUS/CO/6 (2017) 15 (risk that such emergency measures could, over time, become the norm rather than the excep tion); Algeria CCPR/C/DZA/CO/4 (2018) 17; Lithuania CCPR/C/LTU/CO/4 (2018) 23. 21 S.L. v. Netherlands, CCPR/C/120/D/2362/2014, 18 July 2017 [10.11]. 22 Azerbaijan CCPR/C/AZE/CO/4 (2016) 32 (Jehovah’s Witnesses); Turkmenistan CCPR/C/ TKM/CO/2 (2017) 38 (Protestants and Jehovah’s Witnesses); Lao CCPR/C/LAO/CO/1 (2018) 31 (Christians). 23 E.g., Morocco CCPR/C/MAR/CO/6 (2016) 43; Bahrain CCPR/C/BHR/CO/1 (2018) 53. 24 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 36; Guinea CCPR/C/GIN/CO/3 (2018) 43. 25 E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 40. 26 E.g., Bahrain CCPR/C/BHR/CO/1 (2018) 53; Lao CCPR/C/LAO/CO/1 (2018) 33. 27 E.g., Thailand CCPR/C/THA/CO/2 (2017) 25. 28 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 36; Ghana CCPR/C/GHA/CO/1 (2016) 39; Congo CCPR/C/COD/CO/4 (2017) 39; Turkmenistan CCPR/C/TKM/CO/2 (2017) 42; Bahrain CCPR/ C/BHR/CO/1 (2018) 53; Guinea CCPR/C/GIN/CO/3 (2018) 43; Sudan CCPR/C/SDN/CO/5 (2018) 45. 29 Azerbaijan CCPR/C/AZE/CO/4 (2016) 36; Burkina Faso CCPR/C/BFA/CO/1 (2016) 25; Colombia CCPR/C/COL/CO/7 (2016) 38; Bangladesh CCPR/C/BGD/CO/1 (2017) 27(a); Dominican Republic CCPR/C/DOM/CO/6 (2017) 31; Honduras CCPR/C/HND/CO/2 (2017) 40; Madagascar CCPR/C/MDG/CO/4 (2017) 49; Pakistan CCPR/C/PAK/CO/1 (2017) 37; Bahrain CCPR/C/BHR/CO/1 (2018) 59; El Salvador CCPR/C/SLV/CO/7 (2018) 37; Gambia CCPR/C/GMB/CO/2 (2018) 39(c); Guatemala CCPR/C/GTM/CO/4 (2018) 36.

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detention is self-evident in the mass detention of demonstrators;30 in preventive detention aimed at stopping them participating in planned demonstrations;31 and the unjustified detention of individuals including at purely peaceful assemblies.32 The personal security limb of Article 9 is especially important to Article 21 to answer excessive use of force at assemblies (in some cases endangering life).33 Article 9 is enlivened concurrently with: Article 22 in criminal legislation prohibiting alternatives to detention for certain public disorder offences, including those limiting freedom of association,34 though more typically rendering participation in certain organisations illegal; Articles 17 and 23, where immigration detention causes family separation,35 or the domestic legal framework provides for involuntary hospitalisation of those with intellectual disabilities and enables sterilisation;36 Article 24, when detention of children fails to have due regard for their protection,37 including in the use of police lock-ups,38 excessive use of pre-trial detention,39 the ill-treatment of children in institutional settings,40 lack of segregation of children from adults (coincident with Article 10 for those detained under criminal processes),41 compounded by lack of supervision when juveniles are held with adults.42 Article 26 is particularly relevant to Article 9 where arbitrary arrest and imprisonment occurs on the basis of sexuality (e.g., under criminal provisions prohibiting same-sex relations),43 religion,44 or other status such as in the 30 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 17. 31 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 38; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 29; Belarus CCPR/C/BLR/CO/5 (2018) 33. 32 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 38; Algeria CCPR/C/DZA/CO/4 (2018) 45; Belarus CCPR/C/BLR/CO/5 (2018) 51. 33 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 38; Burkina Faso CCPR/C/BFA/CO/1 (2016) 25; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 17; Morocco CCPR/C/MAR/CO/6 (2016) 45; Algeria CCPR/C/DZA/CO/4 (2018) 45; Bahrain CCPR/C/BHR/CO/1 (2018) 35; Belarus CCPR/C/BLR/ CO/5 (2018) 51; Guinea CCPR/C/GIN/CO/3 (2018) 31; Liberia CCPR/C/LBR/CO/1 (2018) 30. For Art. 6 issues concerning excessive force, see chapter on Article 6: The Right to Life, sections ‘Arbitrary Deprivation of Life’, ‘Excessive Use of Force’. 34 E.g., El Salvador CCPR/C/SLV/CO/7 (2018) 37. 35 Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.6]. 36 E.g., Lithuania CCPR/C/LTU/CO/4 (2018) 13. See also chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’. 37 E.g., Hungary CCPR/C/HUN/CO/6 (2018) 29 (high number of minors in conflict with the law deprived of liberty). 38 E.g., Jamaica CCPR/C/JAM/CO/4 (2016) 43. 39 E.g., Hungary CCPR/C/HUN/CO/6 (2018) 37. 40 E.g., Moldova CCPR/C/MDA/CO/3 (2016) 39; Lithuania CCPR/C/LTU/CO/4 (2018) 29. 41 See chapter on Article 10: Treatment of Those Deprived of Their Liberty, sections ‘Article 10(2)(b): Segregation of “Accused Juveniles” from Adults (in Pre trial Detention) and Speedy Appearance for Adjudication, and ‘Article 10(3): Segregation of Juvenile Offenders from Adults, Treatment Appropriate to Their Age and Status, and the Purpose of Penal System’. 42 E.g., Switzerland CCPR/C/CHE/CO/4 (2017) 36. 43 See chapter on Article 26: Equality before the Law Equal Protection of the Law, section ‘Sexual Orientation, Gender Identity, Transgender Status’. 44 See references to Art. 18 above in this paragraph.

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incarceration of the homeless,45 or on grounds of disability (in the involuntary confinement of those with intellectual disabilities (including children),46 in some cases indefinitely,47 without a court order or adequate review procedures).48 Article 27 may be invoked together with Article 9 if members of minorities are selected for arbitrary detention, including as a response to members of indigenous minorities protesting against land leases and concessions affecting the natural resources on which they depend.49 Chapter Outline This chapter follows closely the text of Article 9. Because the Committee’s OP1 decisions are so numerous the case citations provided are representative only, and where they adequately cover the ground they are not supplemented with Concluding Observations which merely mention relevant Article 9 provisions without adding more.

A RT I C L E 9 ( 1 ) : T H E R I G H T TO P E R S O N A L SECURITY The right to personal security concerns bodily and mental integrity, or freedom from injury to the body and the mind.50 The entirety of Article 9, apart from the simple reference to security of person in Article 9(1), concerns the right to liberty. This suggests that the right to security may arise only when there is a loss of liberty. However, it is clear from Delgado Páez v. Colombia and subsequent decisions that the right to personal security exists autonomously. The Committee found a violation of Article 9(1) because of the State’s failure to provide protective measures to guarantee the author’s security. He was a secondary school teacher of religion and ethics, but his social views differed from those of the authorities. When he did not bow to pressure to resign he was subjected to criminal proceedings on theft charges (later determined to be unfounded), exposed to public scorn, and was suspended from teaching with his salary payments frozen. He was threatened with death if he did not withdraw complaints at this treatment, he was attacked, and a work colleague was shot dead by unknown assailants. Fearing for his own life, he left the country and sought political asylum abroad. The Committee could find no basis to narrow the right to security only to situations of formal deprivation of liberty: ‘An interpretation of Article 9 which would allow 45 46 47 48

E.g., Hungary CCPR/C/HUN/CO/6 (2018) 33. E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 12. E.g., Guatemala CCPR/C/GTM/CO/4 (2018) 26. E.g., Serbia CCPR/C/SRB/CO/3 (2017) 16; Hungary CCPR/C/HUN/CO/6 (2018) 21; Lithuania CCPR/C/LTU/CO/4 (2018) 13. 49 E.g., Lao CCPR/C/LAO/CO/1 (2018) 39. 50 GC 35 [3].

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a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.’51 Of course, risks to personal security are frequently occasioned by detention. The personal security of the author in Lalith Rajapakse v. Sri Lanka was at issue both during and after his time in police detention. While in custody under investigation for robbery (it transpired there were no complainants to the robbery) he was tortured and rendered unconscious for fifteen days with ‘traumatic encephalitis’, endangering his life. The formal allegations he made after release of police torture and threats went unheeded and led to him to go into hiding out of fear of reprisals. In the event, the Committee only addressed post-detention matters for the purposes of his right to security of person.52 There is a close nexus between Articles 6 and the right to personal security. Deliberate attempts on an individual’s life may violate Article 6 (in failure on the part of the State to protect life), and also Article 9(1), a prominent example being Chongwe v. Zambia which concerned the attempt on the life of Dr Kenneth Kaunda, in which shots fired by police on the vehicle on which he was travelling slightly wounded the former president and inflicted life-threatening harm on the author. It resulted in findings that both provisions were violated because the State authorised the use of lethal force against the author without lawful reasons (Article 6), and police shot at him, wounding and nearly killing him (Article 9).53 In cases concerning the excessive use of force by security services, issues of proportionality are approached in a similar way under Articles 6 and 9. In Suarez de Guerrero v. Colombia relevant factors were whether the victims were first warned, whether they posed a threat, and whether they had the opportunity to surrender. Because that case involved a fatal shooting the Committee found a violation of Article 6 but did not make a separate finding under Article 9(1).54 When the Committee approached a non-fatal shooting in Leehong v. Jamaica as a violation of the right to personal security (rather than the right to life) similar relevant factors were that the author was shot by the police from behind, with palpable risk to his life, without any warning or an order to stop.55 The right to personal security is violated when officials ‘unjustifiably inflict bodily injury’ or there is ‘unjustifiable use of force in law enforcement’,56 but the right to personal security is broader than the right to life, as it also addresses injuries that are not life-threatening.57 51 Páez v. Colombia, CCPR/C/39/D/195/1985 (1990), 12 July 1990 [5.5] [5.6]. See also Dias v. Angola, CCPR/C/68/D/711/1996, 20 March 2000 [8.3]. 52 Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.7]. 53 Chongwe v. Zambia, CCPR/C/70/D/821/1998, 25 October 2000 [5.2] [5.3]. 54 Suarez de Guerrero v. Colombia, A/37/40 (1982) at 137, 31 March 1982 [13.3]. 55 Leehong v. Jamaica, CCPR/C/66/D/613/1995, 12 August 1999 [9.3]. 56 GC 35 [9], citing Leehong v. Jamaica. 57 GC 35 [55]. For examples of excessive use of force at assemblies, see section ‘Interaction between Article 9 and Other Covenant Provisions’, above, and in other contexts Gambia CCPR/

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The intentional infliction of bodily harm or mental injury may also constitute a violation of Article 7 (where it amounts to torture or cruel, inhuman or degrading treatment or punishment) according to the separate standards of that provision. State failure to take appropriate action in response to a threat to personal security may itself violate Article 9(1).58 The authors in Marcellana and Gumanoy v. Philippines were human rights fact-finders, one of whom had been threatened several times because of her work. She was forced to reveal her identity when ten armed men stopped the vehicle she was in, and asked for her by name. The dead bodies of her and a colleague were found the following day with gunshot wounds. In these circumstances (when at least one of the team had been threatened) there was an objective need for protective measures to guarantee the authors’ security. The Committee found a violation of Article 9(1) in the State’s failure to afford reasonable and appropriate protective measures.59 As the Committee indicated in Jiménez Vaca v. Colombia, the State’s inability (rather than just its unwillingness) to take those measures also does not excuse it.60 The State is under a duty to investigate death threats and other allegations of violation of the right to personal security (as with allegations under Articles 6 and 7), and the Committee frequently makes a separate finding of violation of Article 9(1) because of the State’s failure to do so.61 On the requirement for preventive measures more generally General Comment 35 stipulates as follows:

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C/GMB/CO/2 (2018) 29 (great deal of discretion in the use of force by law enforcement officials); Guatemala CCPR/C/GTM/CO/4 (2018) 36. Páez v. Colombia, CCPR/C/39/D/195/1985 (1990), 12 July 1990 [5.5]: ‘It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them.’ Marcellana and Gumanoy v. Philippines, CCPR/C/94/D/1560/2007, 30 October 2008 [7.7]. Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [7.2]. See also Dias v. Angola, CCPR/C/68/D/711/1996, 20 March 2000 [8.3] (harassment and threats by State authorities because the author conducted his own investigation into the death of his business partner (following the absence of a serious investigation by the police) in which he found evidence implicating high ranking officials, followed by disappearance of one of the witnesses to the murder as a consequence of the threats against him he was unable to enter Angola); Njaru v. Cameroon, CCPR/C/89/D/1353/2005, 19 March 2007 [6.3] (repeatedly requested to testify alone at a police station, harassed and threatened). Chongwe v. Zambia, CCPR/C/70/D/821/1998, 25 October 2000 [5.3] (State refusal to carry out an independent investigation following the police attempt on the life of the author and Kenneth Kaunda constituted a violation); Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [7.2] (death threats and attempt on the life of a legal adviser to several trade unions and people’s and peasants’ organisations followed by failure to take adequate measures to guarantee the author’s right to security of person by State agents); Jayawardena v. Sri Lanka, A/57/40 (2002) at 234, 22 July 2002 [7.3] (failure to investigate threats to life following assertions made by the President of Sri Lanka on the state owned media about the author’s alleged involvement with a separatist Tamil group violated the right to security of person under Art. 9(1)); Gunaratna v. Sri Lanka, CCPR/C/95/D/1432/2005, 17 March 2009 [8.4] (failure of the State to investigate death threats to pressurise the author to withdraw complaints and failure to provide any protection violated his right to security of person); Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.7] (finding a violation in the absence of a witness protection programme and in

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States parties must take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury. For example, States parties must respond appropriately to patterns of violence against categories of victims such as intimidation of human rights defenders and journalists, retaliation against witnesses, violence against women, including domestic violence, the hazing of conscripts in the armed forces, violence against children, violence against persons on the basis of their sexual orientation or gender identity, and violence against persons with disabilities. They should also prevent and redress unjustifiable use of force in law enforcement, and protect their populations against abuses by private security forces, and against the risks posed by excessive availability of firearms. The right to security of person does not address all risks to physical or mental health and is not implicated in the indirect health impact of being the target of civil or criminal proceedings.62

The Committee is generally able to dispense with detailed analysis of whether particular conduct is justifiable if the State does not cooperate, if it does not engage with substantive argument, or where it offers general denial, such as in Chiiko Bwalya v. Zambia63 and Ole Bahamonde v. Equatorial Guinea,64 when the victims were repeatedly subjected to politically motivated harassment, intimidation and threats, and in Purna Maya v. Nepal when the author was threatened and harassed by members of the Army amid numerous other Article 9 violations.65 For similar reasons the Committee provides little reasoning in cases of enforced disappearance. These typically engage Article 7,66 Article 9 (both the right to liberty and personal security), Article 10 (treatment in detention with humanity and respect), Article 16 (right to recognition as a person before the law), and (with less consistency since there may still be hope that the victim may be alive) Article 6 (right to life).67

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the face of harassment and pressure to withdraw a complaint against police); Mambu v. Congo, CCPR/C/118/D/2465/2014, 3 November 2016 [9.2] (complaints of abduction not investigated). GC 35 [9] (footnotes ommitted). Bwalya v. Zambia, CCPR/C/48/D/314/1988, 14 July 1993 [6.4]. Bahamonde v. Equatorial Guinea, CCPR/C/49/D/468/1991, 20 October 1993 [9.2]. Maya v. Nepal, CCPR/C/119/D/2245/2013, 17 March 2017 [3.4], [12.7]. For the linkages between arbitrary detention and instances of torture and ill treatment, see Report of the Working Group on Arbitrary Detention, A/HRC/39/45 (2018) p. 28. David Weissbrodt and Brittany Mitchell reviewed the Working Group’s output across different aspects of Art. 9 in ‘The United Nations Working Group on Arbitrary Detention: Procedures and Summary of Jurisprudence’, (2016) 38(3) Hum. Rts Q., p. 655. E.g., Mojica v. Dominican Republic, CCPR/C/51/D/449/1991, 15 July 1994; Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 16 July 2003; Bousroual v. Algeria, CCPR/C/86/D/1196/2003, 30 March 2006; Grioua v. Algeria, CCPR/C/90/D/1327/2004, 10 July 2007; Kimouche v. Algeria, CCPR/C/90/D/1328/2004, 10 July 2007; El Alwani v. Libya, CCPR/C/90/D/1295/ 2004, 11 July 2007; Aber et al. v. Algeria, CCPR/C/90/D/1439/2005, 13 July 2007; Benaziza v. Algeria, CCPR/C/99/D/1588/2007, 26 July 2010; Guezout et al. v. Algeria, CCPR/C/105/D/ 1753/2008, 19 July 2012; Millis v. Algeria, CCPR/C/122/D/2398/2014, 6 April 2018 [7.4].

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As with all Covenant rights, the State’s obligation extends to securing liberty and security against threats of impairment from private sources,68 as well as the acts of other States,69 even those occurring overseas.70

A RT IC L E 9 (1 ) : T HE R I G HT O F LI BE RT Y The remainder of the chapter will address the separate elements of Articles 9(1)– (5), though more often than not they are violated in different combinations. Enforced disappearance, for example, invariably violates most elements in arbitrary capture or continued detention, without reasons and with no judicial supervision or opportunity to challenge the lawfulness of the detention.71 ‘Arrest’ and ‘Detention’ Article 9 requires a number of safeguards upon an individual’s ‘arrest’ or ‘detention’. ‘Arrest’ in its narrowest sense occurs when a person is apprehended, including for questioning,72 or by house arrest,73 and whether arrest occurs with or without a formal warrant.74 It may occur while already in custody.75 ‘Detention’ occurs when a person is 68 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘The Significance and Reach of Article 2’, ‘The Twin Obligations’. 69 García v. Ecuador, CCPR/C/43/D/319/1988 at 90, 5 November 1991 [6.1] (violations of Arts 7, 9 and 13 as a result of Ecuadorian police officers acting on behalf of Interpol and the US Drug Enforcement Agency when removing the author from Ecuadorian jurisdiction without the formal extradition procedures under the US Ecuador Extradition Treaty). 70 Burgos v. Uruguay, Communication No. R.12/52, A/36/40 (1981) at 176, 29 July 1981 [12.1]. States Parties also violate the right to security of person if they purport to exercise jurisdiction over a person outside their territory by issuing a fatwa or similar death sentence authorising the killing of the victim. See, e.g., Iran CCPR/C/79/Add.25 (1993) [9]; GC 35 [63] (discussing extraterritorial application). 71 E.g., Sharma et al. v. Nepal, CCPR/C/122/D/2364/2014, 6 April 2018 [9.9]; Boudjema v. Algeria, CCPR/C/121/D/2283/2013, 30 October 2017 [8.9]. See also less explicit findings of all such elements in Tharu et al. v. Nepal, CCPR/C/114/D/2038/2011, 3 July 2015 [10.8]; Serna et al. v. Colombia, CCPR/C/114/D/2134/2012, 9 July 2015 [9.4] (enforced disappearance by paramilitary groups); Dovadzija et al. v. Bosnia and Herzegovina, CCPR/C/114/D/2143/2012, 22 July 2015 [3.5]; Kadirić et al. v. Bosnia and Herzegovina, CCPR/C/115/D/2048/2011, 5 November 2015 [3.6]; Basnet v. Nepal, CCPR/C/112/D/2051/2011, 12 July 2016 [10.8]; Dhakal et al. v. Nepal, CCPR/C/119/D/2185/2012, 17 March 2017 [11.9]; Sharma et al. v. Nepal, CCPR/C/122/D/2265/2013, 6 April 2018 [3.4], [10.8]; Bolakhe v. Nepal, CCPR/C/ 123/D/2658/2015, 19 July 2018 [7.17]. 72 Saidarov et al. v. Kyrgyzstan, CCPR/C/119/D/2359/2014, 17 March 2017 [7.3]; Saidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018 [9.2]. Cf. GC 35 [6], which refers to questioning with freedom to leave. 73 Jaona v. Madagascar, CCPR/C/OP/2 at 161, 1 April 1985 [13] [14]; Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.4]; Madani v. Algeria, CCPR/C/89/D/1172/2003, 28 March 2007 [8.3]; Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009 [7.2]. 74 Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.2] (detention for seven days without an arrest warrant). 75 Morrison v. Jamaica, CCPR/C/63/D/635/1995, 27 July 1998 [22.3] (arrest for one murder while in custody for another murder).

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deprived of liberty from the moment of arrest and continues until release.76 It includes confinement to a specific circumscribed location and certain restrictions on movement.77 It concerns constraint, rather than limits on freedom to act as one wishes.78 Deprivation of Liberty Must be Lawful Deprivation of liberty must be both lawful (since ‘[no] one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’) and must not be arbitrary (‘[n]o one shall be subject to arbitrary arrest or detention’). There is a failure to meet the lawfulness stipulation if an individual is arrested or detained ‘on grounds which are not clearly established in domestic legislation’,79 where not ‘carried out with respect for the rule of law’,80 or if it occurs in violation of domestic law.81 If detention ‘lacks any legal basis’ both the lawfulness injunction and the requirement that the arrest or detention not be ‘arbitrary’ are breached, exemplified by Mika Miha v. Equatorial Guinea when the author was not given any explanations of the reasons for his arrest and detention, except that the president of the Republic had ordered it,82 and Chambala v. Zambia when detention continued in spite of a court determination that there were no grounds for it.83 (The Committee has also addressed similar instances of continued detention in reviewing State reports.84) The Committee 76 GC 35 [13]. Different occurrences of arrest and detention are illustrated in Spakmo v. Norway, CCPR/C/67/D/631/1995, 11 November 1999 [6.3]. 77 González del Río v. Peru, CCPR/C/46/D/263/1987, 28 October 1992 [5.1] (claim not substan tiated merely where a warrant for the author’s arrest was issued but the author was not subjected to either arrest or detention, or confined to a specific, circumscribed location or restricted in his movements). 78 Wackenheim v. France, CCPR/C/75/D/854/1999, 15 July 2002 [6.3] (inadmissible ratione materiae). 79 McLawrence v. Jamaica, CCPR/C/60/D/702/1996, 18 July 1997 [5.5]. 80 GC 35 [10]. 81 Bakur v. Belarus, CCPR/C/114/D/1902/2009, 15 July 2015 [7.2] (administrative apprehension never recorded as required by law); Amanklychev v. Turkmenistan, CCPR/C/116/D/2078/2011, 31 March 2016 [7.3] (detention in violation of the Criminal Procedure Code); Askarov v. Kyrgyzstan, CCPR/C/116/D/2231/2012, 31 March 2016 [8.4] (detention not registered for nearly 24 hours, when required within 3 hours of detention); Ortikov v. Uzbekistan, CCPR/C/ 118/D/2317/2013, 26 October 2016 [10.3] (convicted person not transferred as required from pre trial detention to a prison at the latest ten days after sentence); Allaberdiev v. Uzbekistan, CCPR/C/119/D/2555/2015, 21 March 2017 [8.4] [8.5]. Cf. Ambaryan v. Kyrgyzstan, CCPR/C/ 120/D/2162/2012, 28 July 2017 [8.5] (the State successfully rebutted the claim of unlawfulness). 82 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 8 July 1994 [6.5] (the author was not given any explanations for the reasons of his arrest and detention, except that the president of the Republic had ordered both); GC 35 [11]. A similar conclusion could have been reached in Mbenge v. Zaire, CCPR/C/OP/2 at 76 (1990), 25 March 1983, when the author was arrested in order to force him to disclose the whereabouts of his brother, and was released sixteen months later without any criminal charge against him. 83 Chambala v. Zambia, CCPR/C/78/D/856/1999, 15 July 2003 [7.3]. 84 E.g., Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 18 (recommendation that detainees who have served their sentences be released as soon as possible); Iraq CCPR/C/IRQ/CO/5 (2015) 33 (not

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appears to have accepted the author’s claim in Samathanam v. Sri Lanka that he was not detained on lawful grounds when the grounds for his initial arrest were neither reasonable nor probable and those who arrested him did not inform him of any discernible reason for his arrest.85 There was some suggestion by the Committee in Fardon v. Australia that the requirement for grounds and procedures to be established by law serves as a precondition for the State to take advantage of the permissive limits of Article 9(1), in much the same way that the ‘prescribed by law’ precondition of limitation operates in other provisions:86 Article [9(1)] . . . provides for certain permissible limitations on [the right to liberty], by way of detention, where the grounds and the procedures for doing so are established by law. Such limitations are indeed permissible and exist in most countries in laws which have for object, for example, immigration control or the institutionalised care of persons suffering from mental illness or other conditions harmful to themselves or society.87

Whether or not the principle of legality should operate in that way, there is no doubt that a finding of violation of Article 9(1) should follow if the grounds and procedure by which a loss of liberty occurs are not established by law, regardless of whether it is also ‘arbitrary’.88 The Committee’s customary approach to findings on this element of Article 9(1) is to state that ‘deprivation of liberty is permissible only when it takes place on such grounds and in accordance with such procedure as are established by domestic law and when this is not arbitrary. In other words, the first issue before the Committee is whether the authors’ deprivation of liberty was in accordance with the State party’s relevant laws.’89 The Committee has fastened on non-compliance with the ‘established by law’ requirement alone in many instances.90 It has done so even

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all detainees were released immediately after discharge by courts or having served their sentences). Samathanam v. Sri Lanka, CCPR/C/118/D/2412/2014, 28 October 2016 [3.4], [6.4]. See Arts 18(3) and 22(2), the ‘provided by law’ provisions of Arts 12(3), 19(3), and the ‘in conformity with the law’ requirement of Art. 21. Fardon v. Australia, CCPR/C/98/D/1629/2007, 18 March 2010 [7.3] (the Committee continued in response to the aspect of preventive detention: ‘However, limitations as part of, or consequent upon, punishment for criminal offences may give rise to particular difficulties . . . in these cases, the formal prescription of the grounds and procedures in a law which is envisaged to render these limitations permissible is not sufficient if the grounds and the procedures so prescribed are themselves either arbitrary or unreasonably or unnecessarily destructive of the right itself’). See also Tillman v. Australia, CCPR/C/98/D/1635/2007, 18 March 2010 [7.3] in similar terms (based on similar circumstances). GC 35 [10] [11]. E.g., Maksudov et al. v. Kyrgyzstan, CCPR/C/93/D/1461, 1462, 1476 & 1477/2006, 16 July 2008 [12.2]; Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.3]; Butovenko v. Ukraine, CCPR/C/102/D/1412/2005, 19 July 2011 [7.6]. See also Israil v. Kazakhstan, CCPR/C/103/D/2024/2011, 31 October 2011 [9.2]. Sometimes the Committee’s supporting explanation for violation on the basis of the legality requirement is scant when allegations are not contested (e.g., Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 18 July 2000 [8.1]; Casafranca de Gomez v. Peru, CCPR/C/78/D/981/

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where a finding of ‘arbitrary’ loss of liberty was readily available,91 while on other occasions it has based its decision on both elements.92 Deprivation of Liberty Must Not be ‘Arbitrary’ The Committee’s General Comment synopsis on when loss of liberty is ‘arbitrary’ is very close to that under Article 6 for the purposes of determining whether an individual is deprived of life ‘arbitrarily’.93

Reasonableness, Necessity and Proportionality The clearest statement on the meaning of ‘arbitrariness’ under Article 9 is provided in General Comment 35: The notion of ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. For example, remand in custody on criminal charges must be reasonable and necessary in all the circumstances. Aside from judicially imposed sentences for a fixed period of time, the decision to keep a person in any form of detention is arbitrary if it is not subject to periodic re-evaluation of the justification for continuing the detention.94

In some cases the Committee has substituted ‘illegality’ for ‘due process’, for example, Taright v. Algeria, but ‘due process’ is more inclusive.95 The comment that ‘arbitrariness’ includes ‘elements of inappropriateness, injustice, lack of predictability and due process of law’ draws on the drafting history of Article 9, and is taken from Committee dicta in a number of cases,

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2001, 22 July 2003 [7.2]; Rolando v. Philippines, CCPR/C/82/D/1110/2002, 3 November 2004 [5.5]; Umarova v. Uzbekistan, CPR/C/100/D/1449/2006), 19 October 2010 [8.4]; Israil v. Kazakhstan, CCPR/C/103/D/2024/2011, 31 October 2011 [9.2]). E.g., Umarova v. Uzbekistan, CCPR/C/100/D/1449/2006, 19 October 2010 [8.4]. E.g., Chambala v. Zambia, CCPR/C/78/D/856/1999, 15 July 2003, [7.3] (detention for two months following court determination that there were no grounds to hold the author). Note also the generality of the Committee’s findings in Coronel et al. v. Colombia, CCPR/C/76/D/778/ 1997, 24 October 2002 [9.4]; and Kurbonov v. Tajikistan, CCPR/C/86/D/1208/2003, 16 March 2006 [6.5]. General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36, 30 October 2018, advance unedited version (GC 36)) [12] substantially adopts GC 35 [12] (without the examples). GC 35 [12] (footnotes omitted). For interpretation of ‘arbitrariness’ more broadly than ‘against the law’, see, e.g., Jalloh v. Netherlands, CCPR/C/74/D/794/1998, 26 March 2002 [8.2] (the detention was lawful in the Netherlands). The travaux show that the drafters considered that ‘arbitrariness’ includes ‘incompatibility with the principles of justice or with the dignity of the human person’: A v. Australia, CCPR/C/59/D/560/1993, 3 April 1997 [7.6]. On the drafting history of ‘arbitrary’ under Art. 9(1), see P. Hassan, ‘International Covenant on Civil and Political Rights: Background Perspectives on Article 9 (1)’, (1973) 3 Denv. J. Int. L. & Pol., p. 153. Taright et al. v. Algeria, CCPR/C/86/D/1085/2002, 15 March 2006 [8.3].

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including Van Alphen v. Netherlands and Gorji-Dinka v. Cameroon.96 This formula has become a familiar part of the word-stock of Article 9(1) decisionmaking, but in those particular cases these elements were explained to mean that detention ‘must not only be lawful but reasonable and necessary in all circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime’. The Committee found a violation in Van Alphen when a solicitor in a tax fraud matter was held for nine weeks ‘for reasons of accessibility’ when he refused to waive his professional obligation to secrecy to assist the investigation; in Gorji-Dinka when the author was repeatedly arrested and detained, and only after several such occurrences were criminal charges of high treason filed without any legal basis for political motives; in Andrei Sannikov v. Belarus because the remand in custody and other constraints applied to a politician and activist arrested following his presence at a protest did not take into account the circumstances, and neither the authorities nor the courts provided any explanation for their necessity;97 and in Spisso v. Venezuela for imprisonment of a mayor for contempt by a special procedure which precluded his ability to challenge the legality of his detention, when contempt could have been prosecuted through an ordinary criminal proceeding.98 By contrast, in Nystrom v. Australia the author’s detention pending deportation was not in violation of Article 9(1), by virtue of his substantial criminal record, risk of recidivism, the need to protect the Australian community, concern that he might harm the detention centre personnel and inmates, and his risk of flight.99 In some cases the key evidence to justify detention is contradicted or missing, as in Amarasinghe v. Sri Lanka concerning an arrest for being drunk and for obstructing traffic when the toxicology report showed that there was no alcohol in the victim’s blood system and no evidence that he had been obstructing traffic;100 and in Chani v. Algeria when the case file contained neither the grounds for detention, nor authorisations from the public prosecutor for detention.101

Immigration Detention (including Mandatory Detention) The Committee does not always mention the term ‘proportionality’ in its Views, although it has shown greater inclination to do so in cases of immigration detention, when stating on a number of occasions that ‘remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for 96 Van Alphen v. Netherlands, CCPR/C/39/D/305/1988 23 July 1990 [5.8] (omitting ‘due process of law’); Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.1]. See also Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.8]. 97 Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.5]. 98 Spisso v. Venezuela, CCPR/C/119/D/2481/201, 17 March 2017 [7.2] [7.5]. 99 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.3]. 100 Amarasinghe v. Sri Lanka, CCPR/C/120/D/2209/2012, 13 July 2017 [6.7]. 101 Chani v. Algeria, CCPR/C/116/D/2297/2013, 11 March 2016 [7.5].

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example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context’.102 A v. Australia illustrates the Committee’s requirements that detention be properly justified, in that instance when addressing Australia’s policy of mandatory detention for certain border claimants.103 It is not per se arbitrary to detain individuals requesting asylum, and there is no rule of customary international law that would render all such detention arbitrary. But the Committee answered the issue of whether the author’s unlawful entry into Australia and his perceived incentive to abscond were sufficient to justify indefinite and prolonged detention, by a number of important principles. First, that every decision to keep a person in detention should be open to review periodically, so that the grounds justifying the detention may be assessed. Secondly, detention should not continue beyond the period for which the State can provide appropriate justification. Relevant factors might be the likelihood of absconding and lack of cooperation. Without these detention may be considered arbitrary, even if entry was illegal. The Article 9(1) violation lay in the State’s failure to advance any grounds, particular to the author’s case, which would justify his continued detention for a period of four years, during which he was shifted between different detention centres.104 General reasons for detention will not suffice.105 In C. v. Australia the Committee also found that immigration detention for over two years was arbitrary (without specifically referring to proportionality) because the State failed to provide justification for continued detention with the passage of time and intervening circumstances, in particular by showing there were not less invasive means of achieving compliance with its immigration policies, such as by reporting obligations, sureties or other conditions which would take account of the author’s deteriorating physical condition.106 A proper assessment of the necessity for continued detention must take account of the different circumstances of the individual family members detained. The family that was the subject of Bakhtiyari v. Australia claimed they had left Afghanistan together but became separated in transit. Mr Bakhtiyari arrived by boat illegally ahead of his wife and five children, although they were all carried by 102 A v. Australia, CCPR/C/59/D/560/1993 (1997), 3 April 1997 [9.2]; Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.2]; Nystrom v. Australia, CCPR/C/102/D/1557/ 2007, 18 July 2011 [7.3]. 103 Daniel Wilsher traces the use of long term detention of immigrants without judicial control, and the challenges posed in an age of global migration, in Immigration Detention: Law, History, Politics (Cambridge University Press, 2011). 104 A v. Australia, CCPR/C/59/D/560/1993, 3 April 1997 [9.3] [9.4]. 105 Kwok v. Australia, CCPR/C/97/D/1442/2005, 23 October 2009 [9.3] (the State advanced general reasons to justify the author’s detention but no grounds particular to her case which would justify mandatory detention for four years before being released into community detention). 106 C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.2]. A similar analysis was under taken by the Committee in Baban v. Australia, CCPR/C/78/D/1014/2001, 6 August 2003 [7.2]; Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.2] [9.3].

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the same smuggler. The Committee decided there was no Article 9 violation when Mr Bakhtiyari was detained for seven months following his arrival, without dependants, while his identity was in doubt and he claimed to be from a State suffering serious internal disorder. That period of detention ended when he was granted a protection visa on the basis of Afghan nationality and Hazara ethnicity. His visa was cancelled as a result of proceedings which followed the revelation that he was not an Afghan farmer, as he had claimed, but rather a plumber and electrician from Quetta in Pakistan. Mrs Bakhtiyari, on the other hand, was detained in immigration detention for nearly three years at the time of the Committee’s decision and continued to be detained, while their children were released on interim orders of the Family Court after two years and eight months. The Committee found the detention of Mrs Bakhtiyari and the children to be arbitrary ‘taking into account in particular the composition of the Bakhtiyari family’, because that detention lacked justification for such an extended period without demonstrating that less intrusive measures could not achieve compliance with Australia’s immigration policy, for example, through reporting obligations, sureties or other conditions.107 In Griffiths v. Australia the Committee was also influenced in its finding of violation by the fact that detention pending extradition was not limited in time under domestic law and that, as a general rule, individuals could be held in custody in extradition cases whether or not their detention was necessary.108 The background legal framework can therefore be highly significant. The finding of violation of Article 9(1) in Nasir v. Australia was because the author was kept in mandatory immigration detention for almost five months without formal charges (even though he was subsequently convicted of people smuggling).109 The onset of mental illness, or other relevant change of circumstance, during an individual’s detention should itself prompt a review. Article 9(1) was violated on this basis in Shafiq v. Australia. The justification provided for mandatory immigration detention was the State’s general experience that asylum seekers abscond if not retained in custody. The author was placed in a psychiatric institution as a result of his mental illness, which was the consequence of six years’ detention in Australia. He had not attempted to abscond even though he had been held in an ‘open’ environment. The fact that he had become mentally ill during his detention should have been a sufficient ground for a prompt and substantive review.110 107 Bakhtiyari and Bakhtiyari v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [4.1], [4.7], [9.2] [9.3]. 108 Griffiths v. Australia, CCPR/C/112/D/1973/2010 (2015) 21 October 2014 [7.2] [7.4]. On detention pending extradition (which could not exceed three months by law), see Israil v. Kazakhstan, CCPR/C/103/D/2024/2011, 31 October 2011 [9.2]. 109 Nasir v. Australia, CCPR/C/116/D/2229/2012, 29 March 2016 [7.4]. 110 Shafiq v. Australia, CCPR/C/88/D/1324/2004, 31 October 2006 [7.3]. Cf. Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.2] (no violation owing to high risk of flight), even though the author’s mental health had deteriorated. Ben Saul examines the

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The Committee draws a distinction between initial detention for the purposes of ascertaining identity and other issues, as is common in immigration control, and continuing extended detention. In Jalloh v. Netherlands, for example, detention during an investigation into the identity of the author was not arbitrary. Detention was not unreasonable for a limited time (three and a half months) until the administrative procedures were completed, given that he had previously absconded from an open reception facility and went into hiding. Once a reasonable prospect of expelling him no longer existed his detention was terminated.111 The Committee described the position beyond this initial period of detention in F.K.A.G. et al. v. Australia and in F.J. et al. v. Australia: Asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, danger of crimes against others, or risk of acts against national security. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category . . . The decision must also take into account the needs of children and the mental health condition of those detained. Individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion.112

In both cases the authors were kept in mandatory detention upon arrival and subsequently as a result of adverse security assessments. There was nothing to demonstrate, on an individual basis, that continuous indefinite detention was justified, nor did the State demonstrate that other, less intrusive, measures could not have been used to respond even to the security risk said to be posed. The authors were not informed of the specific risk attributed to each of them or of the efforts undertaken to find solutions which would allow them to be at liberty. They were also deprived of legal safeguards allowing them to challenge their indefinite detention.113 international human rights law impacts of adverse security assessments affecting refugee parents, children and families in Australian immigration detention centres, in ‘Indefinite Security Detention and Refugee Children and Families in Australia: International Human Rights Law Dimensions’, (2013) 20 Austl. Int. L.J., p. 55. 111 Jalloh v. Netherlands, CCPR/C/74/D/794/1998, 26 March 2002 [8.2]. Cf. Kulov v. Kyrgyzstan, CCPR/C/99/D/1369/2005, 26 July 2010 [8.3] (violation where no evidence of wish to escape or to obstruct the inquiries); Marinich v. Belarus, CCPR/C/99/D/1502/2006 (2010), [10.4] (con tinued extension of incarceration). 112 F.K.A.G. et al. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013 [9.3] [9.4]; F.J. et al. v. Australia, CCPR/C/116/D/2233/2013, 22 March 2016 [10.3] [10.4]. 113 For almost identical reasoning, see also M.M.M. et al. v. Australia, CCPR/C/108/D/2136/2012, 25 July 2013 [10.3] [10.4]. In different contexts, see also D. and E. v. Australia, CCPR/C/87/D/ 1050/2002, 11 July 2006 [7.2]; Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/ 2010, 1 November 2013 [10.3] [10.4]. For an examination of the practice of preventive detention, see Claire Macken, ‘Preventive Detention and the Right of Personal Liberty and

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In its Concluding Observations the Committee has similarly repeatedly stressed the need to ensure that the detention of migrants and asylum seekers is reasonable, necessary and proportionate in the light of the circumstances,114 that alternatives to detention should be adopted whenever possible,115 taking into account less invasive means of achieving the same end,116 that detention should be used as a measure of last resort,117 that those awaiting deportation should be detained for the shortest time necessary,118 and that any detention should be subject to periodic evaluation and judicial review.119 It has been especially critical where detention is systematic,120 or otherwise without regard for individual circumstances,121 or where there is mandatory detention of certain categories of immigrants which rules out individualised decision-making.122

Preventive Detention Preventive detention generally entails loss of liberty pursuant to aims which are protective and non-punitive, and has been deployed in involuntary psychiatric committal (to protect the patient and/or public), and in criminal sentencing policy (to protect the public).123 The practice is frequently exposed to criticism.124 A v. New Zealand concerned a committal order to which the author was subjected followed threatening and aggressive behaviour, on the opinion of three psychiatrists. A panel of psychiatrists continued to review his situation periodically. The Committee was influenced to find this was neither unlawful nor arbitrary because his continued detention was regularly reviewed by the

114 115 116 117 118 119 120 121 122 123

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Security under the International Covenant on Civil and Political Rights, 1966’ (2005) 26 Adel. L. Rev., p. 1. E.g., Malta CCPR/C/MLT/CO/2 (2014) 16; Finland CCPR/C/FIN/CO/6 (2013) 10; Greece CCPR/C/GRC/CO/2 (2015) 28; Denmark CCPR/C/DNK/CO/6 (2016) 32. E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 14; Greece CCPR/C/GRC/CO/2 (2015) 28; Lithuania CCPR/C/LTU/CO/4 (2018) 19. E.g., Greece CCPR/C/GRC/CO/2 (2015) 28. E.g., Malta CCPR/C/MLT/CO/2 (2014) 16; Korea CCPR/C/KOR/CO/4 (2015) 39. E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 14; Greece CCPR/C/GRC/CO/2 (2015) 28; Korea CCPR/C/KOR/CO/4 (2015) 39. E.g., Finland CCPR/C/FIN/CO/6 (2013) 10. E.g., Malta CCPR/C/MLT/CO/2 (2014) 16. E.g., Greece CCPR/C/GRC/CO/2 (2015) 27. E.g., Australia A/55/40 vol. 1 (2000) 526; Canada CCPR/C/CAN/CO/5 (2006) 14 (foreign nationals who are not permanent residents); Australia CCPR/C/AUS/CO/5 (2009) 23; USA CCPR/C/USA/CO/4 (2014) 15; Australia CCPR/C/AUS/CO/6 (2017) 37. Diane Webber advances an approach to preventive detention as a counter terrorism tool, by reference to key minimum criteria drawn from international human rights principles and best practices from domestic laws, in Preventive Detention of Terror Suspects: a New Legal Framework (Routledge, 2016). Lawrence Hill Cawthorne offers a detailed examination of the procedural rules that apply to detention in non international armed conflict, with the focus on preventive security detention, or ‘internment’, in Detention in Non international Armed Conflict (Oxford University Press, 2016). For discussion in wider legal and medical context, see Bernadette McSherry and Patrick Keyzer (eds), Dangerous People: Policy, Prediction, and Practice (Routledge, 2011).

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courts.125 In keeping with its OP1 practice of limited factual review, the Committee did not undertake a separate evaluation of the facts or the application of the law since this is for the national courts rather than the Committee, unless the decisions of those courts are manifestly arbitrary or amount to a denial of justice. Involuntary psychiatric detention, consistent with general principle, would, however, be arbitrary if the medical criteria necessitating it do not, or cease to, exist. In practice, it is expedient to adopt a system of mandatory periodic review, coupled with judicial control.126 Given the special vulnerability of those detained for reasons of mental health there is a need to ensure that their views are respected, that any one purportedly representing them genuinely reflects and defends their wishes and interests, and that psychiatric care is aimed at preserving the individual’s dignity.127 Particular attention must be given to ensure there is no loss of substantive or procedural safeguards.128 In Bozena Fijalkowska v. Poland the author’s committal for involuntary psychiatric treatment was found to be arbitrary for want of adequate safeguards. She was not served with a copy of the committal order, she was not assisted or represented by anyone who could have informed her she could challenge it, and it was not until after her release that she became aware she could appeal it. When she did, her appeal was dismissed because it was filed outside the statutory deadline.129 Preventive detention within criminal sentencing has been particularly controversial. The rationale for it was put pointedly by Mr Walter Kälin in Rameka et al. v. New Zealand: ‘[a]lthough preventive detention is always triggered by the commission of a serious crime, it is not imposed for what the person concerned did in the past, but rather for what he is, i.e. for being a dangerous person who might commit crimes in the future’.130 In order to justify preventive detention as a measure to protect the public once a punitive term of imprisonment has been served the Committee required the existence of ‘compelling reasons’ throughout the period of detention. This was satisfied because once a non-parole period of sentence had expired, there were compulsory annual

125 A v. New Zealand, CCPR/C/66/D/754/1997, 3 August 1999 [7.2] [7.3]. 126 See also Concurring Opinion of Messrs Pocar and Scheinin in A v. New Zealand; Shafiq v. Australia, CCPR/C/88/D/1324/2004, 31 October 2006 [7.2]. 127 Croatia CCPR/C/HRV/CO/3 (2015) 16. 128 E.g., Poland A/47/40 (1992) 176 (legislation should provide for an appeal against a decision to place a person in a psychiatric institution); Estonia CCPR A/58/40 (2003) 79(10) (noting the obligation to enable a person detained for mental health reasons to initiate proceedings in order to review the lawfulness of the detention). 129 Fijalkowska v. Poland, CCPR/C/84/D/1061/2002, 26 July 2005 [8.3]. 130 Individual Opinion of Committee member Mr Walter Kälin (dissenting in part) in Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002, and in A v. New Zealand, CCPR/C/66/D/754/1997, 3 August 1999.

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reviews of detention by the Parole Board, which were court reviewable, with the power to order the prisoner’s release if no longer a significant danger to the public.131 A number of dissenting Committee members voiced their conviction that the arbitrariness of such detention lay in the fact that the science underlying the assessment of the likelihood of reoffending was unsound. How could anyone seriously assert that there is a ‘20% likelihood’ that a person will re-offend? In their view a forecast made according to such vague criteria was contrary to Article 9(1).132 Preventive detention is sometimes challenged as an excessive measure, as it was in Dean v. New Zealand. The Committee disagreed given that the author had a long history of sexual assault and indecency offences, that he had been warned on several occasions he would be sentenced to preventive detention if he reoffended, and he did so within three months of his release from prison for a similar offence. It also pointed out that it is the duty of the State in cases of preventive detention to provide the necessary assistance that would allow release as soon as possible without being a danger to the community.133

Excessive Sentence Any criminal sentence may be arbitrary if excessive. Examples include Fernando v. Sri Lanka, which concerned ‘rigorous imprisonment’ of one year for a single instance of the author ‘rais[ing] his voice’ in court and refusing to apologise (there was no reasoned explanations for this severity);134 and Dissanakye v. Sri Lanka a similar sentence but for two years because the author stated at a public meeting that he would not accept any ‘disgraceful decision’ of the Supreme Court.135 These cases also suggest that the sentence did not relate to its ostensible purpose. 131 Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002 [7.3]; A v. New Zealand, CCPR/C/66/ D/754/1997, 3 August 1999 [7.3]. Followed in Dean v. New Zealand, CCPR/C/95/D/1512/ 2006, 29 March 2009 [7.4]. 132 Partly Dissenting Opinion of Mr Prafullachandra Natwarlal Bhagwati, Ms Christine Chanet, Mr Glèlè Ahanhanzo and Mr Hipólito Solari Yrigoyen in Rameka et al. v. New Zealand. Committee member Mr Rajsoomer Lallah (dissenting) was disquieted by the fact that it concerned crimes which had not been, and which might never be, committed. For examples of Committee concerns with preventive detention in Concluding Observations, see: Belgium A/47/40 (1992) 421 (lack of judicial authority to deal with preventive detention); France CCPR/C/ FRA/CO/4 (2008) 16 and France CCPR/C/FRA/CO/5 (2015) 11 (detention of criminal defen dants for ‘dangerousness’ after they have served their prison sentences, where they had not complied with the conditions to ensure security supervision when not part of the original sentence); Germany CCPR/C/DEU/C)/6 (2012) 14 (the Committee recommended the use of post conviction preventive detention as a measure of last resort involving conditions only aimed at rehabilitation and reintegration); Italy CCPR/C/ITA/CO/5 (2006) 14 (period for preventive detention set by reference to the penalty for the offence); Panama CCPR/C/PAN/CO/3 (2008) 12 (concern at the continuing high percentage of prisoners in preventive detention). 133 Dean v. New Zealand, CCPR/C/95/D/1512/2006, 17 March 2009 [7.3], [7.5]. 134 Fernando v. Sri Lanka, CCPR/C/83/D/1189/2003, 31 March 2005 [9.2]. 135 Dissanakye v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.3].

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Parole Revocation Revocation of parole may constitute arbitrary detention if there is insufficient nexus between the offence for which the subject was convicted and the offence committed while on parole. In Manuel v. New Zealand the necessary nexus was established because the author, who had been convicted of murder, was recalled for engaging in violent or dangerous conduct while on parole, including driving with excess blood alcohol, disorderly behaviour, intentional damage and threatening language, and dangerous driving (reversing a car over his sister). He was also charged and acquitted (after his recall) with assault on a female.136 Commuting a death sentence to one of life imprisonment, with a prospect of parole in the future, was found not to be tainted with arbitrariness in Reece v. Jamaica.137 Changes which limited eligibility for parole prevented a lawyer convicted of fraud qualifying for it in De León Castro v. Spain because parole only became available to those who satisfied the civil liabilities arising from their offence (which he had not). The Committee could not conclude ‘that the denial of parole to the author made his imprisonment for the entire duration of his sentence arbitrary’.138

Arbitrariness Where Detention is Incompatible with a Covenant Provision The Committee’s decision in De León Castro was strongly criticised in Ruth Wedgwood’s Dissenting Opinion because even under its terms the legislation which introduced the changes should not have subjected the author to a stricter parole regime. She considered that his denial of parole violated Article 15(1), prohibiting criminal penalties being increased retrospectively to the detriment of a defendant after the offence has been committed. She observed, importantly, that a penalty imposed in violation of Article 15(1) was ‘arbitrary’ within the meaning of Article 9.139 The Committee took the issue of Covenant incompatibility further in Fardon v. Australia when finding that the ‘grounds’ and the ‘procedures’ which are to be ‘established by law’ as required by Article 9(1) were themselves arbitrary. Just before the author’s fourteen-year sentence expired, legislation came into effect that allowed a prisoner who was shown to be a serious danger to the community to be detained in custody for an indefinite term for control, care or treatment. The Committee determined that in their application to the author the relevant provisions were arbitrary for four reasons. First, his continued detention amounted in 136 137 138 139

Manuel v. New Zealand, CCPR/C/91/D/1385/2005, 18 October 2007 [7.3]. Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [7.7]. De León Castro v. Spain, CCPR/C/95/D/1388/2005, 19 March 2009 [9.3]. Dissenting Opinion of Ms Wedgwood in De León Castro v. Spain.

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substance to a fresh term of imprisonment, which was not permissible in the absence of a conviction for which imprisonment was a sentence prescribed by law. Secondly, because imprisonment is penal in character and could only be imposed for an offence in the same proceedings in which the offence was tried. In this instance, the further term was the result of court orders made fourteen years after his conviction and sentence, for predicted future criminal conduct which had its basis in the very offence for which he had already served his sentence. He was also subjected to a heavier penalty ‘than the one that was applicable at the time when the criminal offence was committed’ contrary to Article 15(1). Thirdly, the procedure for obtaining the court orders was designed to be civil in character and did not meet the due process guarantees required under Article 14 for a fair trial in which a penal sentence was imposed. Fourthly, the basis for his detention was feared or predicted dangerousness to the community, based on opinion as distinct from factual evidence. To avoid arbitrariness in these circumstances the State should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention. Each one of these reasons would, by itself, be sufficient for finding a violation.140 The second reason echoes Ruth Wedgwood’s contention in De León Castro that detention in violation of Article 15(1) is eo ipso ‘arbitrary’ within the meaning of Article 9(1). Mr Lallah’s Dissenting Opinion in Rameka et al. v. New Zealand similarly emphasised that ‘both the grounds and the procedure required to be prescribed by law under article 9, paragraph 1, must be consistent with the other rights recognised in the Covenant’, as the Committee’s first but not latest General Comment stipulated in reference to preventive detention.141 He would have based his finding in the State’s failure to construe Article 9(1) in the light of other Covenant provisions, namely, Articles 14(1) and 15(1), which he considered were independently violated. The issue of compatibility with the Covenant was at the fore of the Committee’s decision in David Hicks v. Australia. As a result of a transfer arrangement between the United States and Australia the author was sent to Australia to serve the outstanding portion of a prison sentence imposed on him by the US Military Commission. The Committee found that by keeping him in prison for seven months under that arrangement Australia violated Article 9(1) because, by giving effect to sentences under an agreement resulting from a flagrant denial of justice was a disproportionate restriction of the right to liberty. Australia not only made no attempt to negotiate the terms of the arrangement in a manner compatible with its obligations under the Covenant, but also exercised a significant degree of

140 Fardon v. Australia, CCPR/C/98/D/1629/2007, 18 March 2010 [7.4]. 141 Individual Opinion of Committee member Mr Rajsoomer Lallah (dissenting) in Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002, 6 November 2003, referring to CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons), 30 June 1982 [4].

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influence over the formulation of a plea agreement, on which his immediate return to Australia was contingent. It was incumbent on Australia to show, which it failed to do, that it had done everything possible to ensure that the terms of the arrangement as negotiated did not cause it to violate the Covenant, particularly as the author was one of its nationals.142

Arbitrariness Where Detention is Punishment for the Legitimate Exercise of Covenant Rights, or is Discriminatory The Committee has found arrest and detention to be arbitrary where it results from expressing political or other convictions. Examples include Marques de Morais v. Angola in the arrest of a journalist at gunpoint and incommunicado detention for being critical of the Angolan president (rendering the president ‘accountable for the promotion of incompetence, embezzlement and corruption as political and social values’);143 Zelaya Blanco v. Nicaragua in the arrest of a university professor without a warrant the day after the assumption of power by the Sandinista Government, on account of his outspoken criticism of the Marxist orientation of the Sandinistas;144 Tshiongo a Minanga v. Zaire when a founding member of a political party opposed to the regime of President Mobutu was taken to a special branch of the Zairian political police on the pretext that he was to meet the agency’s director but was tortured overnight and left for dead on the roadside the following morning;145 Adelaida Kim v. Uzbekistan, in the arrest following a peaceful protest against the conduct of law enforcement authorities in Tashkent, for ‘disobeying or resisting [the] lawful orders of [a] police officer’;146 Berik Zhagiparov v. Kazakhstan, when a journalist who covered a public gathering on the issue of mortgage rights was sentenced to fifteen days of administrative detention for participating in an unsanctioned public gathering;147 Liubou Pranevich v. Belarus, in the detention of a journalist when covering a book presentation, an unauthorised public event;148 Yuriy Bakur v. Belarus, in the arrest for participating in a meeting held by a political party in private premises;149 Melnikov v. Belarus in the arrest and detention for distributing leaflets advertising a gathering on the worsening economic situation and socio-economic problems in Belarus;150 and Young-kwan Kim et al. v. Korea in the detention of a large number of conscientious

142 143 144 145 146 147 148 149 150

Hicks v. Australia, CCPR/C/115/D/2005/2010, 5 November 2015 [4.7] [4.10]. Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [2.1], [6.1]. Blancov v. Nicaragua, CCPR/C/51/D/328/1988 (1994), 20 July 1994 [10.3]. Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993 [5.2]. Kim v. Uzbekistan, CCPR/C/122/D/2175/2012, 4 April 2018 [13.10]. Zhagiparov v. Kazakhstan, CCPR/C/124/D/2441/2014, 25 October 2018 [13.6]. Pranevich v. Belarus, CCPR/C/124/D/2251/2013, 15 October 2018 [6.2]. Bakur v. Belarus, CPR/C/114/D/1902/2009, 15 July 2015 [7.2]. Melnikov v. Belarus, CCPR/C/120/D/2147/2012, 14 July 2017 [8.8].

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objectors for refusing military service while legitimately exercising their Article 18 right to do so.151 The Committee also found in Ribeiro v. Mexico that the detention was punitive and consequently arbitrary of a journalist and human rights defender on charges of defamation and calumny after she revealed the existence of a corruption and child exploitation ring. The Committee referred to the call it made in the General Comment on Article 19 for States to consider decriminalising defamation. ‘Since defamation should never result in a penalty of deprivation of liberty being imposed on the grounds that it is not an appropriate penalty, then a fortiori no detention based on charges of defamation may ever be considered either necessary or proportionate.’152 Although the Committee in Ribeiro adverted to the principle that detention is arbitrary when it is used as a penalty for the legitimate exercise of Covenant rights, the ‘grounds’ and the ‘procedures’ on which the detention was based may themselves be said to be arbitrary for their Covenant incompatibility. Arrest or detention on discriminatory grounds in violation of Articles 2(1), 3 or 26 is also in principle arbitrary.153

A RTIC L E 9 (2 ) : T HE R I G HT TO BE I N FO R M ED , AT T H E TI M E OF A R R E S T, O F TH E R E A S O N S F O R A R R E S T A ND P R O M P T LY BE IN F O R M E D OF ANY CHARGES Warrants provide a measure of safeguard against the elements of ‘inappropriateness, injustice, lack of predictability and due process of law’ at arrest. The Committee has therefore been concerned where detention is allowed without a warrant,154 or occurs (particularly for prolonged periods) without a warrant;155 a warrant is required but is not obtained;156 relevant procedures are not complied 151 Kim et al. v. Korea, CCPR/C/112/D/2179/2012, 15 October 2014 [7.5] (footnote omitted, referring to Blanco v. Nicaragua). 152 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018 [10.8] [10.11]. See also Khadzhiyev et al. v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018 [7.7] (arrest and detention for journalistic and human rights work); Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 32 (use of detention as a means of intimidation). 153 GC 35 [17]; see also examples in section ‘Interaction between Article 9 and Other Covenant Provisions’, above. 154 E.g., Korea CCPR/C/KOR/CO/3 (2006) 15 (excessive use of urgent arrest procedure, allowing detention without an arrest warrant for up to 48 hours); Argentina CCPR/C/ARG/CO/5 (2016) 17 (police practice, permitted by regulation, of taking people into custody without a warrant to verify their identity and then detaining them for lengthy periods); Pakistan CCPR/C/PAK/CO/1 (2017) 19 (law provides for detention by the army without warrant). 155 E.g., Syria CCPR/CO/71/SYR (2001) 14 (detention without an arrest warrant or indictment and without judicial procedures, in many cases for many years); Algeria CCPR/C/DZA/CO/4 (2018) 35 (detention for lengthy periods without an arrest warrant ever having been issued). 156 E.g., Iraq CCPR/C/IRQ/CO/5 (2015) 33 (despite legal safeguards, security forces carry out arrests without judicial warrants); Honduras CCPR/C/HND/CO/1 (2006) 13 (frequent use of

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with;157 or prisoners remain in custody under expired custody warrants.158 Failure to enter an arrest in an official register can provide a basis for wider Article 9(1) findings.159 All detainees in criminal matters should have immediate access to a lawyer from the outset of detention,160 a principle which also covers migration detention and the Article 13 safeguards to be accorded to aliens facing expulsion.161 Notice of Reasons for Arrest A major purpose in requiring that those who are arrested be informed of the reasons for their arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded.162 This aspect of Article 9(2) applies to any form of arrest, whereas the separate requirement for notice of charges applies only to criminal charges. ‘Arrest’ here means ‘the initiation of a deprivation of liberty regardless of whether it occurs in criminal or administrative proceedings’.163 The reasons must include not only the general basis of the arrest, but enough factual specifics to indicate the substance of the complaint.164 It is not

157 158 159 160

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arrest on suspicion by members of the security forces, including mass round ups based on appearance alone and with no warrant from a competent authority). E.g., Cambodia CCPR A/54/40 (1999) 304 (the law requiring a court to order immediate release of a person arrested without a warrant is not always complied with); Congo CCPR/C/COD/CO/ 3 (2006) 19 (warrant is often not produced). E.g., Guinea CCPR/C/GIN/CO/3 (2018) 38 (continued custody without renewal of expired custody warrants). Neupane et al. v. Nepal, CCPR/C/120/D/2170/2012, 21 July 2017 [10.9] (enforced disappearance). GC 35 [35]; chapter on Article 14: Fair Trial Rights, sections ‘Article 14(3)(b) Adequate Time and Facilities for Preparation of Defence and to Communicate with Counsel’, ‘Communication with Counsel’. For recent illustrative Concluding Observations, see Congo CCPR/C/COD/CO/ 4 (2017) 36; Algeria CCPR/C/DZA/CO/4 (2018) 17; Bahrain CCPR/C/BHR/CO/1 (2018) 39; Lao CCPR/C/LAO/CO/1 (2018) 28; Lebanon CCPR/C/LBN/CO/3 (2018) 32; Sudan CCPR/C/ SDN/CO/5 (2018) 42(d). See chapter on Article 13: Procedural Safeguards in the Expulsion of Aliens, sections ‘The Rights to Submit Reasons against Expulsion, and of Review, with Representation, Except where Compelling Reasons of National Security Otherwise Require’, ‘Case Review’. Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013 [10.5]. For one of many examples of failure to provide reasons for arrest, see Aboufaied v. Libya, CCPR/C/104/D/1782/2008, 21 March 2012 [7.6]. For concern at the routine violation of this right, see, e.g., Congo CCPR/C/COD/CO/4 (2017) 35. F.K.A.G. et al. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013 [6.9], [9.5] (at the time of their initial detention the authors were merely advised that they would not be granted a permanent visa as they did not meet security requirements, and would be detained while resettlement solutions were explored); cf. M.M.M. et al. v. Australia, CCPR/C/108/D/2136/ 2012, 25 July 2013 [10.5]. Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013 [10.5] (the lack of information provided when the author was placed in immigration detention and to the courts on the reasons why he was considered a threat to the security undermined his right to seek release before a court).

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sufficient simply to inform the subject, for example, that they are being arrested under security measures.165 The timing requirement is strict. It may not be feasible to give reasons for arrest instanter, and one common cause of delay is in procuring an official translator, since reasons must be given in a language intelligible to the addressee.166 A delay of 7 or 8 hours has been allowed in such circumstances, while police procedures were suspended.167 Two days following arrest has been found to be too late.168 A person already in detention must promptly be informed of new charges.169 Even if arrest is lawful any subsequent detention must be separately justified.170 In the case of children, it is necessary to inform their parents or guardians, both of the reasons for arrest and the charges.171 General Comment 35 suggests that for those with mental disabilities notice of the arrest and the reasons should be given to any designated person or appropriate family members (allowing additional time to do so).172 Notice of Criminal Charges The right to be informed of any charges is necessarily confined to the criminal context.173 It includes charges for arraignment at a military court.174 ‘Promptly’ means that anyone arrested need not be informed of the charges against them at the precise time of their arrest. A few hours would be sufficiently short (in a language understood by them),175 but not a matter of days or weeks 165 Caldas v. Uruguay, CCPR/C/OP/2 at 80 (1990), 21 July 1983 [13.2]; Ilombe et al. v. Congo, CCPR/C/86/D/1177/2003, 17 March 2006 [6.2] (‘a breach of state security’). 166 Albert Wilson v. Philippines, CCPR/C/79/D/868/1999, 30 October 2003 [3.3], [7.5]. For an example of a claim (successfully refuted by the State) of failure to inform of the reasons for the arrest promptly and the charges in a language understood, see Ambaryan v. Kyrgyzstan, CCPR/ C/120/D/2162/2012, 28 July 2017 [8.6]. 167 Hill v. Spain, CCPR/C/59/D/526/1993, 2 April 1997 [12.2]. 168 Ismailov v. Uzbekistan, CCPR/C/101/D/1769/2008, 25 March 2011 [7.2]. For other examples of arrest without reasons, see Medjnoune v. Algeria, CCPR/C/87/D/1297/2004, 14 July 2006 [8.6] (incommunicado detention without being informed of the reasons for his arrest for 218 days); Njaru v. Cameroon, CCPR/C/89/D/1353/2005, 19 March 2007 [6.2]; Ashurov v. Tajikistan, CCPR/C/89/ D/1348/2005, 20 March 2007 [6.4]; Engo v. Cameroon, CCPR/C/96/D/1397/2005, 22 July 2009 [7.3]; Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.2]. 169 E.g., Morrison v. Jamaica, CCPR/C/63/D/635/1995, 27 July 1998 [22.3]; Leehong v. Jamaica, 613/1995, CCPR/C/66/D/613/1995, 12 August 1999 [9.4]. 170 Spakmo v. Norway, CCPR/C/67/D/631/1995, 11 November 1999 [6.3] (two arrests were found to be reasonable in the circumstances but not detention following the second arrest). 171 Krasnov v. Kyrgystan, CCPR/C/101/D/1402/2005, 29 March 2011 [8.5] (violation in failure to inform a 14 year old child and his legal representative of the reasons for the child’s arrest). See also CRC, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10, [48]. 172 GC 35 [28]; Krasnov v. Kyrgystan, CCPR/C/101/D/1402/2005, 29 March 2011 [8.5]. 173 GC 35 [24] bears out this distinction. 174 Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.2]; Akwanga v. Cameroon, CCPR/C/101/D/1813/2008, 22 March 2011 [7.4] [7.5]. 175 Griffin v. Spain, CCPR/C/53/D/493/1992 (1995), 4 April 1995 [9.2].

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later.176 In Concluding Observations it has been a matter of concern that ‘short-term arrests’ of up to 12 hours without charge remain possible,177 or that 72 hours may elapse.178 The level of detail of the charges need not be as extensive as required under Article 14(3)(a) to allow a defendant to prepare for trial.179 If details of the charges were previously provided (e.g., during police questioning) then there is no violation if they are not repeated.180 Judicial control under Article 9(3) provides additional safeguard if insufficient detail of the charges is provided.

ART I C L E 9 ( 3 ) : J U D I C I A L C O N T R O L OF DETENTION ‘Shall be Brought Promptly Before a Judge’ The essence of this provision is to bring anyone arrested or detained on a criminal charge under judicial control that is independent, objective and impartial in relation to the issues dealt with.181 The prosecuting authority may therefore not constitute an ‘officer authorized to exercise judicial power’.182

176 Violation of Art. 9(2) in detention without being informed of the charges for seven days (Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.2]); nine days (Morrison v. Jamaica, CCPR/C/64/D/663/1995, 25 November 1998 [8.2]; ten days (Latifulin v. Kyrgyzstan, CCPR/C/98/D/1312/2004, 10 March 2010 [8.3]); thirteen days (Kirpo v. Tajikistan, CCPR/C/97/D/1401/2005, October 27 2009 [6.2]); twenty five days (Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.2]); forty days (Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.2]). 177 Hungary CCPR/C/HUN/CO/5 (2010) 13. 178 Uzbekistan CCPR/CO/71/UZB (2001) 12 (72 hours); Georgia CCPR/CO/74/GEO (2002) 9 (72 hours). See also St Vincent and the Grenadines A/45/40 (1990) 252 (seven days); Morocco CCPR A/50/40 (1995) 110 (concern at the long period of detention without charge); Ireland CCPR A/55/40 (2000) 438 (seven days permitted for drug trafficking matters); Paraguay CCPR/C/PRY/CO/3 (2013) 20. 179 McLawrence v. Jamaica, CCPR/C/60/D/702/1996, 18 July 1997 [5.5], [5.9] (the duty to inform the accused of the nature and cause of the charge against him under Art. 14(3)(a) is more precise than that for arrested persons under Art. 9(2)). 180 Smirnova v. Russian Federation, CCPR/C/81/D/712/1996, 5 July 2004 [10.3]. 181 Bazarov et al. v. Uzbekistan, CCPR/C/87/D/959/2000 (2006), 14 July 2006 [8.2]; Musaeva v. Uzbekistan, CCPR/C/104/D/1914,1915 & 1916/2009, 21 March 2012 [9.3]. 182 Zheludkova v. Ukraine, CCPR/C/75/D/726/1996, 29 October 2002 [8.3]; Reshetnikov v. Russian Federation, CCPR/C/95/D/1278/2004, 23 March 2009 [8.2]; Khoroshenko v. Russian Federation, 1304/2004, CCPR/C/101/D/1304/2004, 29 March 2011 [9.2]; Toshev v. Tajikistan, CCPR/C/101/D/1499/2006, 30 March 2011 [6.5]; Torobekov v. Kyrgyzstan, CCPR/C/103/D/ 1547/2007, 27 October 2011 [6.2]. Among relevant Concluding Observations, see Russian Federation CCPR/C/79/Add.54 (1995) 16; Belarus CCPR/C/79/Add.86 (1997) 10 (procurator not a judge competent to decide on matters relating to continued detention); Mali CCPR/CO/77/ MLI (2003) 10 (police custody may be extended beyond 48 hours if authorised by the public prosecutor); Suriname CCPR/C/SUR/CO/3 (2015) 31 (prosecutor may decide to extend detention for a further period without judicial review); Turkmenistan CCPR/C/TKM/CO/2 (2017) 24 (remand authorised by a prosecutor); Lao CCPR/C/LAO/CO/1 (2018) 27 (remand authorised by a prosecutor who also decides on any subsequent extensions).

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The purpose is to ensure that proper judicial power is exercised at an early stage in order to bring those detained to trial within a reasonable time or to dispose of any complaint against them if it has no basis, so that they may be released. If they are to be tried, this process ensures that any decision concerning custodial remand meets the requirements of necessity for further detention.183 It is therefore a matter of concern if the maximum period of police custody allowed in domestic laws is exceeded.184 It may not be extended for those accused of a capital offence.185 Judicial control is also directed at preventing the sort of vulnerability that results from being in police detention,186 incommunicado or prolonged detention without access to a lawyer. Judicial control is to be automatic, unprompted on the part of the detainee.187 The appearance of the accused ‘live’ provides the opportunity to examine issues concerning the detainee’s treatment while in custody, which is particularly important in ensuring that any confessions are voluntary, including those of co-accused (in Saimijon and Bazarov v. Uzbekistan the marks of torture on the author’s co-accused who admitted to falsely testifying against him under torture became the subject of enquiry during court proceedings).188 The court must have power to order the detainee’s presence.189 The exact meaning of ‘promptly’ depends on objective circumstances but implies that delays must not exceed a few days.190 An aspect of some Article 9(3) findings is 183 Madani v. Algeria, CCPR/C/89/D/1172/2003, 28 March 2007 [8.4], citing C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.2]. 184 E.g., Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 18 (maximum 48 hour period of police custody may be renewed once, and is not always respected); Moldova CCPR/C/MDA/CO/2(2009) 19 (maximum duration of police custody subsequent to arrest is 72 hours and is frequently exceeded). 185 E.g., Kenya A/36/40 (1981) 17 (concern at the differential between the time an accused must be brought before a judge (24 hours) and that applied to a person accused of a capital offence (fourteen days); the latter is incompatible with Art. 9(3). 186 E.g., Jamaica CCPR A/53/40 (1998) 86 (noting the opportunity for beatings and other forms of police brutality); Lithuania CCPR A/53/40 (1998) 170 (police power to detain for up to 5 hours could be used for harassment or intimidation); Hungary CCPR A/57/40 vol. I (2002) 80(8) (deep concern at on going detention on police premises and the high risk of ill treatment which it entails). 187 Pichugina v. Belarus, CCPR/C/108/D/1592/2007, 17 July 2013 [7.3] [7.5] (the State relied on the fact that the author did not initiate a complaint to justify not bringing her before a judge). 188 Bazarov et al. v. Uzbekistan, CCPR/C/87/D/959/2000 (2006), 14 July 2006 [8.3] (the co accused confirmed torture, but the presiding judge summoned the two investigators and accepted their denial, resulting in a finding of violation of Art. 14(1)). See also Uzbekistan CCPR/C/UZB/CO/4 (2015) 15 (concern that habeas corpus hearings occur in the absence of the detainee, especially in politically related cases). 189 GC 35 [42]. 190 Examples of failure in promptness (without justification) included three days in Borisenko v. Hungary, CCPR/C/75/D/852/1999, 14 October 2002 [7.4], four days in Freemantle v. Jamaica, CCPR/C/68/D/625/1995, 24 March 2000 [7.4]; and five days in Nazarov v. Uzbekistan, CCPR/C/81/D/911/2000 (2004), 6 July 2004 [6.2], Jijón v. Ecuador, CCPR/C/ 44/D/277/1988 at 76, 26 March 1992 [5.3], and Nazarov v. Uzbekistan, CCPR/C/81/D/911/ 2000 (2004), 6 July 2004 [6.2].

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detention without a real opportunity to speak with a lawyer.191 The period for evaluating promptness begins at the time of arrest and not at the time when the person arrives in a place of detention.192 Incommunicado detention ‘as such may violate Article 9(3)’,193 and it inevitably violates numerous other Covenant provisions.194 The Committee considers that 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing, and that any delay beyond that must remain absolutely exceptional and be justified under the circumstances.195 Findings of violation of this aspect include delays of seven days,196 three weeks,197 forty days,198 three months,199 five months,200 218 days,201 five years202 and six years.203 The expectation of the CRC is 24 hours in the case of every child.204 ‘Trial within a Reasonable Time’ Entitlement to trial within a reasonable time in Article 9(3) applies specifically to those in pre-trial detention (as indicated by the words ‘shall be entitled to trial within a reasonable time or to release’).205 There is overlap with the right to be 191 Umarova v. Uzbekistan, CCPR/C/100/D/1449/2006, 19 October 2010 [8.5]. 192 Kovsh v. Belarus, CCPR/C/107/D/1787/2008, 27 March 2013 [7.3]; Pichugina v. Belarus, CCPR/C/108/D/1592/2007, 17 July 2013 [7.3]. 193 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.3] (referring to Jijón v. Ecuador, CCPR/C/44/D/277/1988 at 76, 26 March 1992 [5.3]); Boimurodov v. Tajikistan, CCPR/C/85/D/1042/2001, 20 October 2005 [7.4]; Medjnoune v. Algeria, CCPR/C/87/D/1297/2004, 14 July 2006 [8.7]. See also Morocco CCPR A/50/40 (1995) 119 (incommunicado detention should be restricted to very limited and exceptional cases); Nigeria CCPR/C/79/Add.64 (1996) 7; Gambia CCPR CCPR/CO/75/GMB (2002) 11 (incommunicado detention is contrary to Art. 9); Suriname CCPR/CO/80/SUR (2004) 14; Iran CCPR/C/IRN/ CO/3 (2011) 18. 194 For further discussion of incommunicado detention, see chapter on Article 10: Treatment of Those Deprived of Their Liberty, sections ‘Article 10(1): Treatment of Detainees and Prisoners in Violation of Article 10(1) and/or Article 7’, ‘Incommunicado Detention’. 195 GC 35 [33]. See also Grishkovtsov v. Belarus, CCPR/C/113/D/2013/2010, 1 April 2015 [8.3]. The Committee often refers to the 48 hour rule when examining State reports, with particular concern if it may be extended or there is no provision for this limit in domestic law (see ‘Implementation’ section, below), though note in particular steps taken by States to circumvent it, e.g.: Ghana CCPR/C/GHA/CO/1 (2016) 41 (suspects arrested during the weekend to avoid respecting the 48 hour period); Kazakhstan CCPR/C/KAZ/CO/2 (2016) 25 (72 hours coupled with inaccurate recording of the time of arrest to circumvent this legal time frame). Extreme cases include periods of ten thirty days (Russian Federation CCPR/C/79/Add.54 (1995) 16); forty four days (Suriname CCPR/CO/80/SUR (2004) 14; and four and a half months (Sudan CCPR/C/SDN/CO/4 (2014) 18). 196 John Jacques Tshidika v. Congo, CCPR/C/115/D/2214/2012, 22 July 2015 [6.3]. 197 Traore v. Côte d’Ivoire, CCPR/C/103/D/1759/2008, 31 October 2011 [7.5]. 198 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.4]. 199 Leehong v. Jamaica, CCPR/C/66/D/613/1995, 12 August 1999 [9.5]. 200 Aber v. Algeria, CCPR/C/90/D/1439/2005, 13 July 2007 [7.6]; Burdyko v. Belarus, CCPR/C/ 114/D/2017/2010, 15 July 2015 [8.3]. 201 Medjnoune v. Algeria, CCPR/C/87/D/1297/2004, 14 July 2006 [8.7]. 202 Zogo v. Cameroon, CCPR/C/121/D/2764/2016, 8 November 2017 [7.2]. 203 Madani v. Algeria, CCPR/C/89/D/1172/2003, 28 March 2007 [8.4]. 204 CRC GC 10 [83]. 205 GC 35 [37].

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tried without undue delay in Article 14(3)(c), and both are often violated simultaneously.206 Article 14(3)(c) applies whether or not the accused is detained, to avoid prolonged uncertainty about the fate of those subject to criminal charge, and to serve the interests of justice, for example, because relevant witnesses are more likely to be available and their recollections more reliable. ‘Reasonable time’ is invested with particular meaning in the specific circumstances of pre-trial detention and the Committee has adopted much of its ‘without undue delay’ jurisprudence from Article 14(3)(c) when addressing what is ‘reasonable’ under Article 9(3), including that those remanded in custody must be tried as expeditiously ‘as possible’.207 However, this must not occur so quickly that it prejudices the accused’s right under Article 14(3)(b) to have adequate time and facilities to prepare for their defence. Inevitably, most cases concern undue delay rather than precipitous speed. ‘Reasonableness’ is to be assessed in the individual circumstances of each case, taking into account such matters as its complexity, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.208 The burden of proof for justifying any delay and showing that a case was, for example, particularly complex rests with the State.209 The fact that the State may have suffered general problems and instabilities following a coup attempt avails little.210 A shorter period of pre-trial detention is appropriate in cases involving serious charges such as homicide or murder.211 An excessive period of pre-trial detention may also affect the right to be presumed innocent (under Article 14(2)).212 The Committee has routinely found, in the absence of any justification or satisfactory explanation from the State, that periods of between two years and three and a half years before being brought to trial violate Article 9(3).213 As always in the event of delay the judicial authority should reassess the necessity and reasonableness for continued pre-trial detention.214

206 General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 (GC 32) [61]; Hendricks v. Guyana, CCPR/C/75/D/ 838/1998, 25 October 2002 [6.3]; Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [6.2]. 207 GC 35 [37], drawing on GC 32 [35] and jurisprudence such as Barroso v. Panama, CCPR/C/54/ D/473/1991, 19 July 1995 [8.5]; Sextus v. Trinidad and Tobago, CCPR/C/72/D/818/1998, 16 July 2001 [7.2]. 208 GC 35 [37]; GC 32 [35]. For illustration of how these factors were applied, see Taright et al. v. Algeria, CCPR/C/86/D/1085/2002, 15 March 2006 [8.2] [8.4]. 209 Barroso v. Panama, CCPR/C/54/D/473/1991, 19 July 1995 [8.5]. 210 Sextus v. Trinidad and Tobago, CCPR/C/72/D/818/1998, 16 July 2001 [7.2]. 211 Sextus v. Trinidad and Tobago, CCPR/C/72/D/818/1998, 16 July 2001 [7.2]; Teesdale v. Trinidad and Tobago, CCPR/C/74/D/677/1996, 1 April 2002 [9.3]. 212 Cagas et al. v. Philippines, CCPR/C/73/D/788/1997, 23 October 2001 [7.3]. 213 Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002 [6.2]; Hendricks v. Guyana, CCPR/C/75/D/838/1998, 25 October 2002 [6.3]; Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [6.2]. 214 Taright et al. v. Algeria, CCPR/C/86/D/1085/2002, 15 March 2006 [8.4].

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The entitlement to trial within a reasonable time refers to trial by a first instance decision215 (under Article 14(3)(c) the right to be tried without undue delay applies at all stages, including first instance decisions and their appeal).216 Release or Custody Pending Trial Pre-trial detention should be the exception rather than the norm,217 consistent with the presumption of innocence,218 and should be as short as possible.219 It is to be used only when ‘necessary’.220 Excessive use may be indicated where a high percentage of the prison population is represented by those in pre-trial detention, or contributes to overcrowding.221 As with every form of detention it must be justifiable,222 and it is a matter of Committee concern when a case-by-case assessment is precluded, for example, by laws which exclude bail for certain types of offence,223 or pre-trial detention is determined by reference to the penalty stipulated for the offence.224 In some instances pre-trial detention lasts for periods longer than the maximum sentence for the crime.225 It is of particular concern where those investigated for offences which carry the death penalty may be remanded indefinitely.226 States are encouraged to adopt maximum, non-extendable terms of pre-trial detention,227 and to adopt non215 GC 35 [37]; Engo v. Cameroon, CCPR/C/96/D/1397/2005, 22 July 2009 [7.2]. 216 GC 32 [35]. 217 Cagas et al. v. Philippines, CCPR/C/73/D/788/1997, 23 October 2001 [7.4]; Smantser v. Belarus, CCPR/C/94/D/1178/2003, 23 October 2008 [10.3]; Basso v. Uruguay, CCPR/C/ 100/D/1887/2009, 19 October 2010 [10.2]. See also, e.g., Albania CCPR/CO/82/ALB 2 (2004) 16; Costa Rica CCPR/C/CRI/CO/6 (2016) 28; Sweden CCPR/C/SWE/CO/7 (2016) 29; Congo CCPR/C/COD/CO/4 (2017) 35. 218 E.g., Uruguay CCPR/C/79/Add.19 (1993) 9 and Uruguay CCPR/C/URY/CO/5 (2013) 8. 219 GC 35 [37]; Cagas et al. v. Philippines, CCPR/C/73/D/788/1997, 23 October 2001 [7.4]; Pichugina v. Belarus, CCPR/C/108/D/1592/2007, 17 July 2013 [7.3]. 220 Kozulina v. Belarus, CCPR/C/112/D/1773/2008, 21 October 2014 [9.7] (violation where necessity not make out); Dominican Republic CCPR A/56/40 (2001) 78(11) (‘strictly necessary’). 221 E.g., Mauritius A/44/40 (1989) 16 (36%); Paraguay CCPR/C/PRY/CO/3 (2013) 20 (70%); Uruguay CCPR/C/URY/CO/5 (2013) 9 (65%); Bolivia CCPR/C/BOL/CO/3 (2013) 19 (80%); Argentina CCPR/C/ARG/CO/5 (2016) 19 (over 50%); Burkina Faso CCPR/C/BFA/CO/1 (2016) 29; Ghana CCPR/C/GHA/CO/1 (2016) 41; Morocco CCPR/C/MAR/CO/6 (2016) 29 (almost 50%); Pakistan CCPR/C/PAK/CO/1 (2017) 27; Guinea CCPR/C/GIN/CO/3 (2018) 37 (60 80% of the population of detainees); Liberia CCPR/C/LBR/CO/1 (2018) 36. 222 E.g., Belgium CCPR A/54/40 (1999) 84; Sweden CCPR/C/SWE/CO/7 (2016) 29. 223 E.g., Mauritius A/44/40 (1989) 15; Mauritius CCPR/C/MUS/CO/5 (2017) 27. 224 E.g., Argentina CCPR/CO/70/ARG (2000) 10 (duration of pre trial detention was determined by reference to the possible length of sentence following conviction; there should not be any offences for which pre trial detention is obligatory); Spain CCPR/C/ESP/CO/5 (2009) 15 (a practice which the Committee recommended be ended); Moldova CCPR/C/MDA/CO/2 (2009) 19; Poland CCPR/C/POL/CO/7 (2016) 29 (pre trial detention on the ground of the severity of the penalty). 225 E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 27. 226 E.g., Iraq CCPR/C/IRQ/CO/5 (2015) 33. See also Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 32 (up to seven years). 227 E.g., Poland CCPR/C/POL/CO/6 (2010) 16.

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custodial alternatives.228 Those detained should have access to a doctor,229 as well as legal counsel,230 and should be able to inform their family.231 All restrictions on contacts for pre-trial detainees should require justification on the basis of necessity and proportionality in the light of all the relevant circumstances, and the extent of their application should be subject to constant review.232 Remand in custody could be considered arbitrary if it is not necessary in all the circumstances,233 for example, to prevent the recurrence of crime,234 or where the likelihood exists that the accused will abscond,235 destroy evidence, influence witnesses or flee from the jurisdiction.236 As to the requirement of lawfulness, the Committee has repeatedly objected to ill-defined concepts of ‘public safety’ and ‘public order’,237 ‘national security’238 and ‘public security’239 empowering pretrial detention. Any release pending trial may be conditioned upon guarantees to appear at trial, at any other stage of the judicial proceedings and, eventually, 228 E.g., Paraguay CCPR/C/PRY/CO/3 (2013) 20; Costa Rica CCPR/C/CRI/CO/6 (2016) 28; Sweden CCPR/C/SWE/CO/7 (2016) 29; Dominican Republic CCPR/C/DOM/CO/6 (2017) 21; Hungary CCPR/C/HUN/CO/6 (2018) 41; Lithuania CCPR/C/LTU/CO/4 (2018) 21. See also Rule 6 of the United Nations Standard Minimum Rules for Non Custodial Measures (the Tokyo Rules): resolution adopted by the General Assembly, 2 April 1991, A/RES/45/110; and for standards applicable to women (in both custodial and non custodial measures) the United Nations Rules for the Treatment of Women Prisoners and Non Custodial Measures for Women Offenders (the Bangkok Rules): note by the Secretariat, 6 October 2010, A/C.3/65/L.5. 229 E.g., Mauritania A/69/40 (2014) 129 (18); Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 18. 230 E.g., Kyrgyzstan CCPR/CO/69/KGZ (2000) 9; Hungary CCPR/C/HUN/CO/5 (2010) 13; Paraguay CCPR/C/PRY/CO/3 (2013) 20; Albania CCPR/C/ALB/CO/2 (2013) 17 (recommend ing access to a lawyer be assured immediately following arrest); Bolivia CCPR/C/BOL/CO/3 (2013) 19; Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 18 (from the very outset of deprivation of liberty); Sweden CCPR/C/SWE/CO/7 (2016) 29; France CCPR/C/FRA/CO/5 (2015) 9 (con cern that access to counsel for terrorism suspects could be delayed for 72 hours); Mongolia CCPR/C/MNG/CO/6 (2017) 24. 231 E.g., Hungary CCPR A/57/40 vol. I (2002) 80(8); Congo CCPR/C/COD/CO/3 (2006) 19; Kuwait CCPR/C/KWT/CO/2 (2011) 19; Burkina Faso CCPR/C/BFA/CO/1 (2016) 29, 30; Mongolia CCPR/C/MNG/CO/6 (2017) 24. 232 E.g., Sweden CCPR/C/SWE/CO/7 (2016) 29. 233 A v. Australia, CCPR/C/59/D/560/1993, 3 April 1997 [9.2]; Cedeño v. Venezuela, CCPR/C/106/ D/1940/2010, 29 October 2012 [7.10], citing Van Alphen v. Netherlands [5.8]. 234 Torobekov v. Kyrgyzstan, CCPR/C/103/D/1547/2007, 27 October 2011 [6.3] (no violation in view of seriousness of the crime and previous record). 235 Smantser v. Belarus, CCPR/C/94/D/1178/200323, 23 October 2008 [10.3] (risk of absconding not made out). 236 Abdelhamid Taright et al. v. Algeria, CCPR/C/86/D/1085/2002, 15 March 2006 [8.3]; Hill v. Spain, CCPR/C/59/D/526/1993, 2 April 1997 [12.3]. 237 Mauritius A/44/40 (1989) 152 (powers of detention allowing arrest on reasonable suspicion of activities likely to cause a serious threat to public safety or public order are incompatible with Art. 9(3) and (4)). 238 Sudan CCPR A/53/40 (1998) 124 (vague and legally undefined concept of ‘national security’ used as a basis for arrest and detention, creating an atmosphere of fear and oppression for anyone critical of the government. See also Canada CCPR/C/CAN/CO/5 (2006) 14 (the use of ‘security certificates’ on grounds of national security). 239 Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) [18]; A/68/40 (2013) 112 [15] (recom mended removing the ill defined concept of public security or security of property as a ground for ordering pre trial detention).

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delivery of the judgment. Mere conjecture or the bare assertion of a well-founded concern about such risk is insufficient,240 as also is mere assumption on the part of the State that such a risk exists,241 without proper substantiation both of the concern and why it cannot adequately be addressed by setting particular conditions of release.242 Pre-trial detention was justified, for example, in the case of a fugitive who was the subject of an extradition request.243 Juveniles should not be kept in custody if at all possible.244 The CRC recommends strict legal provisions to ensure that the legality of pre-trial detention is reviewed regularly, preferably every two weeks,245 and urges States to introduce provisions to ensure that a final decision on charges is made within six months of being presented.246 Pre-trial detention should not involve the accused returning to police custody, but instead being placed under a different authority (where risks to the rights of the detainee can be more easily mitigated).247 Rafael Marques de Morais v. Angola illustrates the distinction between the first and second sentences of Article 9(3). The author was detained for a total of forty days without being brought before a judge, in violation of the first sentence. He was charged on the day of his release, but there was no violation of the second sentence for the earlier period of detention because he was not then ‘awaiting trial’.248

A RT I C L E 9 ( 4 ) : R I G H T TO TA K E P R O C E E D I N G S B E F O R E A C O U RT R E G A R D I N G T H E LAWF U L N E S S OF DETENTION Article 9(4) is fundamental to the scheme and purpose of Article 9. It entitles anyone arrested or detained to take court proceedings to determine the lawfulness of their arrest or detention. Since many, if not most, detainees will not know of this right, they are to be informed of it.249 Principle 14 of The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment requires this to be effected in a language understood by them.250 Indirect means of

240 241 242 243 244 245 248 249 250

Hill v. Spain, CCPR/C/59/D/526/1993, 2 April 1997 [12.3]. Cedeño v. Venezuela, CCPR/C/106/D/1940/2010, 29 October 2012 [7.10]. Hill v. Spain, CCPR/C/59/D/526/1993, 2 April 1997 [12.3]. Basso v. Uruguay, CCPR/C/100/D/1887/2009, 19 October 2010 [10.2]. GC 32 [42]; CRC GC 10 [80] (the duration of pre trial detention of juveniles should also be limited by law and be subject to regular review). CRC GC 10 [83]. 246 CRC GC 10 [83]. 247 GC 35 [36]. Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.4]. This aspect was in factual dispute in McLawrence v. Jamaica, CCPR/C/60/D/702/1996, 18 July 1997 [5.7]. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by General Assembly Resolution 43/173 of 9 December 1988 (Principles for the Protection of Those in Detention), Principles 13 and 14.

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denying the right to challenge detention may equally offend Article 9(4), including denial of access to a lawyer,251 and (in the case of psychiatric detention) failing to serve the relevant committal order.252 As with Article 9(3) it is particularly important in the case of juveniles.253 The entitlement to take ‘proceedings before a court’ usually refers to judicial proceedings, but the term is broad enough to allow for specialist tribunals, such as a parole board, if it is sufficiently independent, impartial and supported by procedures for the purpose of determining the lawfulness of continued detention.254 It applies to military detention, but the fact that military discipline is firmly regulated by law does not mean that the legal and procedural safeguards of Article 9(4) do not apply.255 Examples of review which are not comparable to judicial scrutiny include review by a superior military officer,256 a prosecutor257 and ministerial review258 (a higher degree of objectivity and independence is required). Among the Committee’s recommendations to the United States to protect those detained in Guantanamo Bay was to correct the lack of independence of the reviewing courts from the executive branch and the army.259 As to the purpose of court proceedings (to decide ‘without delay’ on the lawfulness of the detention),260 the Committee seems to allow some latitude. It found a claim to be unsubstantiated when an application for habeas corpus at first instance was heard within six days and decided two days later, and the appeal was decided within three weeks.261 There was a violation where review by a court was possible only when, after seven days, the detention had been confirmed by order of the minister (a challenge had to be delayed until the second week of detention).262 If proceedings are likely to be prolonged, one option for the State is to seek interim 251 Madani v. Algeria, CCPR/C/89/D/1172/2003, 28 March 2007 [8.5]; Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.5]. 252 Fijalkowska v. Poland, CCPR/C/84/D/1061/2002, 26 July 2005 [8.4]. 253 Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016 [9.2] [9.3]. 254 Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002 [7.4]. 255 Vuolanne v. Finland, A/44/40 (1989) at 311, 7 April 1989 [9.4] (a measure may fall within Art. 9(4) if it takes the form of restrictions imposed over and above the exigencies of normal military service and deviate from the normal conditions of life within the armed forces). 256 Vuolanne v. Finland, A/44/40 (1989) at 311, 7 April 1989 [9.6]. 257 Umarova v. Uzbekistan, CPR/C/100/D/1449/2006), 19 October 2010 [8.6]; Kirpo v. Tajikistan, CCPR/C/97/D/1401/2005, 27 October 2009 [6.5]; Timoshenko v. Belarus, CCPR/C/114/D/ 1950/2010, 22 July 2015 [7.2]; Khadzhiyev et al. v. Turkmenistan, CCPR/C/122/D/2252/ 2013, 6 April 2018 [7.8]; Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.6]. 258 Torres v. Finland, CCPR/C/38/D/291/1988, 2 April 1990 [7.2]. 259 USA CCPR/C/USA/CO/3/Rev.1 (2006) 18. 260 The Committee when reviewing Dominican Republic CCPR A/56/40 (2001) 78(13) commen ted that ‘the courts should rule on the legality of detentions as quickly as possible’. See also Trinidad and Tobago A/40/40 (1985) 115 (long delays occurred between arrest and trial was not consistent with Art. 9 and could give rise to serious miscarriages of justice). 261 J.S. v. New Zealand, CCPR/C/104/D/1752/2008, 26 March 2012 [6.4]. 262 Torres v. Finland, CCPR/C/38/D/291/1988, 2 April 1990 [7.2]. See also Timoshenko v. Belarus, CCPR/C/114/D/1950/2010, 22 July 2015 [7.3] (violation in a delay of 10 days in transmitting the author’s appeal to court).

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judicial authorisation for the detention.263 Procedural rules on their own provide no excuse.264 In any event, petitioner delay does not constitute delay for these purposes.265 The decision of the relevant court need not be appellable.266 The words ‘or to release’ require the court to determine the lawfulness of detention, on substantive grounds, if it is to continue, which must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of Article 9(1). A merely formal assessment of compliance under domestic law is not enough.267 What is decisive for the purposes of Article 9(4) is that such a review is, in its effects, real and not merely formal.268 The court must be empowered to order release if it makes a finding that detention is not lawful.269 If there has been a violation of Article 9(2), the Article 9(4) proceedings will expose any lack of sufficient reason for arrest and detention. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment embody the right in Article 9(4). The relevant authority is also to produce the detainee in person before the reviewing court.270 In order to protect non-derogable rights, the right in Article 9(4) must not be diminished by a State’s decision to derogate from the Covenant.271

263 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.3]. 264 Zogo v. Cameroon, CCPR/C/121/D/2764/2016, 8 November 2017 [7.2] (the State relied on purely procedural grounds, as the case has been transferred to the Special Criminal Court, without a substantive examination of detention). 265 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.3]. 266 GC 35 [48]. 267 C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.3] (the court review was confined purely to a formal assessment of the question whether the person in question was a ‘non citizen’ without an entry permit). See also M.M.M. et al. v. Australia, CCPR/C/108/D/2136/2012, 25 July 2013 [10.6]; F.K.A.G. et al. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013 [9.6]; Baban v. Australia, CCPR/C/78/D/1014/2001, 6 August 2003 [7.2]; Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.4] (detention of non citizens with out an entry permit continued in mandatory terms, until removal or grant of a permit, with review confined to mere compliance of the detention with domestic law). 268 Griffiths v. Australia, CCPR/C/112/D/1973/2010 (2015) 21 October 2014 [7.4] [7.5] (deten tion pending extradition for over two years, with neither any chance of obtaining substantive judicial review, nor of being released on this ground except through bail application requiring ‘special circumstances’ and ‘extraordinary’ factors); A v. Australia, CCPR/C/59/D/560/1993, 3 April 1997 [9.5]. 269 A v. Australia, CCPR/C/59/D/560/1993, 3 April 1997 [9.5]; Shafiq v. Australia, CCPR/C/88/D/ 1324/2004, 31 October 2006 [7.4]; Shams et al. v. Australia, CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288/2004, 20 July 2007 [7.3] (the inability of the judiciary to challenge a detention that was contrary to Art. 9(1) was a violation of Art. 9(4)); Aboussedra v. Libya, CCPR/C/100/D/1751/2008, 25 October 2010 [7.6]. 270 Principles for the Protection of Those in Detention, Principle 32[2]. 271 General Comment No. 29: Article 4 (Derogations during a State of Emergency), 31 August 2001, CCPR/C/21/Rev.1/Add.11 [16]. On exceeding the limits permitted by Art. 4, see, e.g., Israel CCPR/C/79/Add.93 (1998) 21; Israel CCPR/CO/78/ISR (2003) 12. Note also Senegal CCPR A/48/40 (1993) 112 (though not as a matter of derogation under Art. 4) where the Committee did not agree with the government’s contention that the provisions of the Covenant must be interpreted and applied against the background of the conditions prevailing in the country.

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Given the requirement for the necessity of detention to be kept under review, any relevant change of circumstances triggers the right under Article 9(4).272 However, in the view of some Committee members that provision cannot be construed so as to give a right to judicial review on an unlimited number of occasions.273 Judicial review of the lawfulness of detention must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of Article 9(1).274 It was violated in F.J. et al. v. Australia because the Committee was not convinced that it was open to the domestic court to review the justification of the authors’ indefinite immigration detention in substantive terms given authoritative domestic rulings which declared such detention lawful.275 In Bakhtiyari v. Australia there was a violation of Mrs Bakhtiyari’s right under Article 9(4) to have the lawfulness of her detention determined, because the court review would at best be confined purely to a formal assessment of whether she was a ‘non-citizen’ without an entry permit, without power to review the justification of her detention in substantive terms. The children were in the same position as their mother, until as a result of various appeal processes it was found that there was jurisdiction under child welfare legislation to order the release of children from immigration detention, and from that moment the violation of the children’s rights under Article 9(4) ended.276 Article 9(4) requires that courts reviewing the lawfulness of detention take into account all relevant factors. Al-Gertani v. Bosnia and Herzegovina disclosed an Article 9(4) violation because the reviewing courts did not have access to the information leading the Intelligence and Security Agency to conclude that the author was a threat to the public order, peace and security and did not question the reasons why they themselves could not be informed of the grounds on which such assessment was based.277 The United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, prepared by the Working Group on Arbitrary Detention, are intended to guide States in their 272 A v. Australia, CCPR/C/59/D/560/1993, 3 April 1997 [7.3]; Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002 [7.3]. 273 Rameka et al. v. New Zealand, Individual Opinion of Mr Shearer and Mr Roman Wieruszewski, and Mr Nisuke Ando (dissenting in part). 274 Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.4]; Shams et al. v. Australia, CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288/2004, 20 July 2007 [7.3] (in both cases the court review available was confined purely to a formal assessment of whether the individual was a ‘non citizen’ without an entry permit). 275 F.J. et al. v. Australia, CCPR/C/116/D/2233/2013, 22 March 2016 [10.5]. See also Nasir v. Australia, CCPR/C/116/D/2229/2012, 29 March 2016 [7.4]. 276 Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.4] [9.5]. 277 Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013 [10.6]. See also Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.2] [10.3].

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international obligations, including those under Article 9, and to facilitate access to this judicial remedy.278

A RT I CL E 9 ( 5 ) : E N F O R C E A B L E R I G H T TO C O M P E NS AT I O N F O R V I C T I M S O F U N L AWF U L A R R E S T O R D E T E NT I O N The enforceable right to pecuniary compensation to which any victim of unlawful arrest or detention is to be entitled under Article 9(5) supplements the obligation of States in Article 2(3)(a) to ensure victims an effective remedy. The right must be secured effectively within each jurisdiction, but the precise manner of implementation is left open to States. Remedies should be speedy and effective,279 and should apply to all forms of detention.280 In order to assert violation of this provision the author must in fact claim compensation for unlawful arrest or detention.281 A discretionary award of compensation does not qualify as ‘an enforceable right’. The fact that someone arrested or detained was subsequently acquitted does not in itself render the pretrial detention unlawful and give rise to entitlement to compensation.282 It applied when unlawful detention was the result of release a day late from a prison sentence (attributable to a prison director), when no compensation was granted.283

I M P L E M E N TAT I O N Covenant provisions that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of 278 Report submitted by the Working Group on Arbitrary Detention, A/HRC/30/37, 6 July 2015. 279 E.g., USA CCPR/C/79/Add.50 (1995) 34 (recommendation that appropriate measures should be adopted to provide speedy and effective remedies to compensate those subjected to unlawful or arbitrary arrests). See also Guyana CCPR/C/79/Add.121 (2000) 15 (regret the law does not provide an enforceable right to compensation in case of unlawful arrest); Albania CCPR/CO/ 82/ALB 2 (2004) 16 (concern at lack of availability of compensation). 280 E.g., Luxembourg CCPR A/48/40 (1993) 144 (recommendation to provide an effective remedy for those who have been subjected to solitary confinement in a prison or to internment in a facility for the mentally ill). 281 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 8 July 1994 [6.5]. See also Coleman v. Australia, CCPR/C/87/D/1157/2003 (2006), 17 July 2006 [6.3] (claim under Art. 9(5) not substantiated but compensation payable under Art. 2(3)(a) for unlawful detention). Among successful examples, see A.S. v. Nepal, CCPR/C/115/D/2077/2011, 6 November 2015 [3.8], [8.3] (the uncontested claim was that the author was prevented from exercising his right to an effective remedy); Maya v. Nepal, CCPR/C/119/D/2245/2013, 17 March 2017 [12.7] (the author was never compensated for unlawful detention despite the numerous avenues that she pursued). 282 E.g., W.B.E. v. Netherlands, CCPR/C/46/D/432/1990, 23 October 1992 [6.5]; Uebergang v. Australia, CCPR/C/71/D/963/2001, 22 March 2001 [4.4]. 283 Esergepov v. Kazakhstan, CCPR/C/116/D/2129/2012, 29 March 2016 [11.10].

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reservations. A State may therefore not reserve the right to arbitrarily arrest and detain persons.284 As Martin Scheinin recounts, there have been a number of reservations concerning Article 9 in respect of procedures, which are quite precise in their formulation, and produce very few objections.285 As with other Covenant provisions which are laden with protective safeguards (notably Article 14), the Committee’s implementation concerns with Article 9 focus on whether the required stipulations exist in domestic law. It has recommended review and amendment of legislation and practice: to ensure that the criteria for extending police custody are defined by law in line with General Comment 35;286 to correct legislation which authorises the review of detention by someone other than an officer exercising judicial power,287 or permits detention for more than the 48-hour period ordinarily allowed to bring the detention under judicial control;288 to ensure prompt access to counsel;289 to prevent excessive use of pre-trial detention290 (and to deduct the time already served in pre-trial detention from imposed sentences);291 to guarantee the right to a trial within a reasonable time;292 to ensure the release of anyone detained arbitrarily, and the thorough and independent investigation into any allegation of arbitrary arrest,293 and full reparation;294 to develop a comprehensive and effective juvenile justice system that takes into account the age, specific needs and vulnerability of children;295 to conform terrorism legislation with Article 9;296 to bring legislation and practices relating to immigration detention, particularly mandatory detention, in line with Article 9;297 to provide for a maximum period of

284 General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6 [8]. In this context, see Sandy Ghandhi, ‘The Human Rights Committee and Reservations to the Optional Protocol’, (2001) 8(1) Canterbury L. Rev., p. 13. 285 Martin Scheinin, ‘Reservations to the International Covenant on Civil and Political Rights and Its Optional Protocols: Reflections on State Practice’, unpublished manuscript. 286 E.g., Madagascar CCPR/C/MDG/CO/4 (2017) 34. 287 E.g., Turkmenistan CCPR/C/TKM/CO/2 (2017) 25; Belarus CCPR/C/BLR/CO/5 (2018) 32. 288 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 26 (recommendation of 48 hours for adults and to 24 hours for juveniles); Kuwait CCPR/C/KWT/CO/3 (2016) 27; Moldova CCPR/C/MDA/CO/ 3 (2016) 26; Turkmenistan CCPR/C/TKM/CO/2 (2017) 25; Belarus CCPR/C/BLR/CO/5 (2018) 32; El Salvador CCPR/C/SLV/CO/7 (2018) 28. 289 E.g., Lao CCPR/C/LAO/CO/1 (2018) 28. 290 E.g., Poland CCPR/C/POL/CO/7 (2016) 35, 36 (especially for juveniles); Hungary CCPR/C/ HUN/CO/6 (2018) 38. 291 E.g., Mauritius CCPR/C/MUS/CO/5 (2017) 30. 292 E.g., Hungary CCPR/C/HUN/CO/6 (2018) 37; Lao CCPR/C/LAO/CO/1 (2018) 28. 293 E.g., Algeria CCPR/C/DZA/CO/4 (2018) 36. 294 E.g., Sudan CCPR/C/SDN/CO/5 (2018) 42. See also Kuwait CCPR/C/KWT/CO/3 (2016) 41; Cameroon CCPR/C/CMR/CO/5 (2017) 34; Thailand CCPR/C/THA/CO/2 (2017) 26. 295 E.g., Moldova CCPR/C/MDA/CO/3 (2016) 40. 296 E.g., Morocco CCPR/C/MAR/CO/6 (2016) 18; Mauritius CCPR/C/MUS/CO/5 (2017) 28; Liberia CCPR/C/LBR/CO/1 (2018) 15. 297 E.g., Australia CCPR/C/AUS/CO/5 (2009) 23; Australia CCPR/C/AUS/CO/6 (2017) 38; Hungary CCPR/C/HUN/CO/6 (2018) 46.

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detention for those awaiting administrative deportation, and judicial remedies enabling them to seek review of the lawfulness of their detention;298 and has recommended consideration be given to establishing an appropriate framework allowing for authorities to visit detainees held abroad.299

C O N C L US I O N Article 9 not only prohibits arbitrary detention but requires a number of valuable practical protective safeguards to be installed domestically to enable any unjustified detention to be ended as quickly as possible, and with it the vulnerability to abuse to which detainees are exposed in violation of numerous other Covenant rights. The concept of ‘arbitrariness’ is common to Articles 6, 9, 12(4) and 17. It applies with transparent similarity across Articles 6 and 9, as reflected in the General Comments applicable to each, to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as of reasonableness, necessity and proportionality. This formula has also occasionally been applied under Article 17 in cases of obvious procedural irregularity.300 It was particularly apt to address Article 9 claims such as Van Alphen v. Netherlands (involving manifestly disproportionate use of detention powers) and Gorji-Dinka v. Cameroon (a wide range of politically motivated abuses). Of all the elements listed within the formula, the most prominent and generalised is the demand for the proven ‘necessity’ of any detention, which sounds out across the Committee’s decisions, Concluding Observations and relevant General Comments like a symphonic theme. The decision-making in which arbitrariness is found in detention as punishment for the legitimate exercise of Covenant right perhaps vindicates most of all the element of ‘inappropriateness’ though obviously in the official treatment giving rise to those particular claims the State also appears to have departed from any plausible adherence to principles of reasonableness, necessity and proportionality. Incompatibility with a Covenant provision has been a function of arbitrariness particularly in the more vexed questions surrounding preventive detention. Covenant consistency is closely related but appears to be more firmly embedded in the Article 17 concept of arbitrariness, in company with the enduring demand for reasonableness (‘even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in 298 E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 29. 299 E.g., Liechtenstein CCPR/C/LIE/CO/2 (2017) 24. 300 See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Inappropriateness, Injustice, Lack of Predictability and Due Process of Law’.

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any event, reasonable in particular circumstances’),301 which has been interpreted so that ‘reasonableness’ incorporates principles of necessity and proportionality, again giving prominence to the necessity. The Committee interestingly carried over that same test, common to Articles 9 and 17, for the purposes of Article 12(4), which is notorious for offering little permissive scope, since there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.302 Even though Articles 6, 9, 12(4) and 17 differ considerably from each other in the guarantees they offer, there is commonality in many of the instances of arbitrariness behind the violation of each, whether in punitive, discriminatory, illmotivated or excessive measures, in Covenant-incompatible policy-making (most often when domestic border control and security issues take highest priority), as well as in the failure (particularly in the case of Articles 6 and 9) to provide the protective cover those provisions require.

301 CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 [4]. See chapter on Article 17: Privacy, Home, Correspondence: Honour and Reputation, section ‘Disproportionate Impact of an Interference to its Objectives’. 302 See chapter on Article 12: Freedom of Movement of the Person, section ‘Arbitrariness’. Note also Joint Opinion of Committee members Gerald L. Neuman, Yuji Iwasawa and Walter Kälin (concurring) in Timur Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 (Article 12(4) is designed to extend extraordinarily strong protection more than the usual proportion ality standard).

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Article 10: Treatment of Those Deprived of Their Liberty

INTRODUCTION Page 282 ARTICLE 10(1): TREATMENT OF DETAINEES AND PRISONERS IN VIOLATION OF ARTICLE 10(1) AND/OR ARTICLE 7 285 ARTICLE 10(2)(a): SEGREGATION OF ‘ACCUSED’ FROM ‘CONVICTED’ PERSONS IN PRE-TRIAL DETENTION 309 ARTICLE 10(2)(b): SEGREGATION OF ‘ACCUSED JUVENILES’ FROM ADULTS (IN PRE-TRIAL DETENTION) AND SPEEDY APPEARANCE FOR ADJUDICATION 311 ARTICLE 10(3): SEGREGATION OF JUVENILE OFFENDERS FROM ADULTS, TREATMENT APPROPRIATE TO THEIR AGE AND STATUS, AND THE PURPOSE OF PENAL SYSTEM 312 IMPLEMENTATION 315 CONCLUSION 317

Covenant Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Comparable Provisions in Other International Instruments (note also those comparable to Article 7) 281

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European Convention: no directly comparable provision. American Convention on Human Rights: Article 5(2)–(6). African Charter on Human and Peoples’ Rights: no directly comparable provision.

INTRODUCTION Purpose Article 10 gives voice to a series of positive obligations towards those suffering loss of liberty (whether in a police cell, prison, hospital, immigration facility or other form of detention), by virtue of their vulnerability. Their treatment must be commensurate with respect for their humanity and inherent dignity. It meets a need not fully addressed by Articles 7 and 9. Article 7 only prohibits ill-treatment reaching a particular severity (torture, cruel, inhuman or degrading treatment or punishment). Article 9 is concerned primarily with the arbitrariness and unlawfulness of any loss of liberty, rather than conditions of confinement or particular acts of ill-treatment or privation. Article 10(1), therefore, establishes certain minimum standards for the treatment of detainees and prisoners, whether or not the detention itself is arbitrary or unlawful under Article 9, and whether or not Article 7 is engaged. It spans malefic conduct directed against an individual in detention, hardship which results from deprivation of basic necessities and poor conditions of detention.1 Article 10 is not within the non-derogable provisions listed in Article 4(2), but the Committee has stated that ‘treating persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule’, and ‘while it is not separately mentioned in . . . article 4, paragraph 2, this norm of general international law is not subject to derogation’.2 It also expressed the view that ‘the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party’.3

1 For detailed coverage of the human rights engaged in reference to conditions of imprisonment or detention, see Rodley and Pollard, Treatment of Prisoners under International Law, ch. 9. 2 Giri et al. v. Nepal, CCPR/C/101/D/1761/2008, 24 March 2011 [7.9], citing CCPR General Comment No. 29: Article 4 (Derogations during a State of Emergency), 31 August 2001, CCPR/C/21/Rev.1/Add.11 [3]. Note also the ICJ’s comment in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, pp. 639, 671 [87]: ‘There is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments.’ 3 CCPR General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 10 April 1992, adopted at the Forty fourth Session of the Human Rights Committee (GC 21) [4]; Giri et al. v. Nepal, CCPR/C/101/D/1761/2008, 24 March 2011 [7.9].

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Good practice criteria for the treatment of offenders was established as early as 1957 in the Standard Minimum Rules for the Treatment of Prisoners.4 In the Third Committee drafting of Article 10 a number of delegates suggested that it should be formally linked to those Rules (and not prejudice their application), but the proposal was resisted because of the inevitability that the Rules would be revised,5 and indeed they underwent significant revision in the restyled 2016 Nelson Mandela Rules.6 There have been a number of specific international initiatives since 1957,7 but the 1957 Rules and the Nelson Mandela Rules represent a standard often adopted by the Committee in OP1 Decisions,8 and in Concluding Observations. Covenant Rights and Freedoms of Detainees and Prisoners In order to signal the continued application of the Covenant to those deprived of their liberty, when States might otherwise consider it to be suspended (particularly in the case of punitive detention), the Committee established as a basic principle that individuals may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty. Respect for their dignity must be guaranteed under the same conditions as for that of free persons. They therefore enjoy all Covenant rights, subject to the restrictions that are unavoidable in a closed environment.9

4 Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 30 August 1955, and approved by the Economic and Social Council by Resolutions 663 C (XXIV), 31 July 1957 and 2076 (LXII), 13 May 1977. 5 A/4045 (1958), pp. 26 7, [84]. 6 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), Resolution, adopted by the General Assembly, 8 January 2016, A/RES/70/175. 7 Code of Conduct for Law Enforcement Officials, A/RES/34/169, 5 February 1980; Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment, A/ RES/38/118, 16 December 1983; The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/RES/43/173, 9 December 1988; The Basic Principles for the Treatment of Prisoners, A/RES/45/11, 28 March 1991; the United Nations Standard Minimum Rules for Non custodial Measures (the Tokyo Rules), adopted by the General Assembly, A/RES/45/110, 2 April 1991; and the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, E/RES/2002/12, 24 July 2002. 8 E.g., Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.2]; Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.4]; GC 21 [5] (States Parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards, including the Minimum Rules). 9 GC 21 [3]; applied, e.g., in Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.2]; Guezout v. Algeria, CCPR/C/105/D/1753/2008, 19 July 2012 [8.8]; Boudehane v. Algeria, CCPR/C/111/D/1924/2010, 24 July 2014 [8.8]; Abdullayev v. Turkmenistan, CCPR/C/113/D/ 2218/2012, 25 March 2015 [7.3].

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Interaction between Article 10 and Other Covenant Provisions Article 10 coincides with a number of other Covenant provisions in different circumstances. These include: Article 6 when conditions in prisons are harsh and life-threatening, through overcrowding, poor food, poor living conditions, sanitation or medical care;10 Article 9 where inter-prisoner violence or attacks from officials result in loss of personal security;11 Article 17 in invasions of privacy in detention, including by strip searches, the presence of law enforcement personnel during medical examinations,12 or unaccompanied access by male guards to women’s prison facilities;13 Article 18 in the imposition of adverse conditions of detention directed at those of particular beliefs, such as Jehovah’s Witnesses imprisoned for their conscientious objection to compulsory military service;14 Article 19 where this occurs on the basis of political opinion,15 and in both such instances also Article 26 because of the discrimination entailed. Article 24 often has concurrent application in circumstances requiring special regard for juveniles, as envisaged by Article 10(2) and (3),16 and also concerning conditions of detention.17 Among the Covenant rights which in practice are most given to undue restriction in detention are those in Article 17 (interference with correspondence),18 Article 18 (freedom of religion, in matters such as diet, access to religious texts, and whether it is permissible to wear a beard),19 and Article 25, in the blanket denial of the right to vote in elections affecting all prisoners serving a sentence; and where this has a disproportionate impact on indigenous peoples in view of their over-representation in prisons it may also violate Article 26.20 The excessive use and length of pre-trial detention is a concern shared by Articles 9(3), 10(1), 10(2)(b), 14(2) and 14(3)(c).

10 11 12 14 15 16 17 18 19

20

E.g., Gambia CCPR/C/GMB/CO/2 (2018) 33. E.g., Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, 14 July 2006 [9.7]. Hungary CCPR/C/HUN/CO/6 (2018) 35. 13 USA CCPR/C/79/Add.50 (1995) 20. E.g., Uchetov v. Turkmenistan, CCPR/C/117/D/2226/2012; 15 July 2016 [2.5], [2.6], [7.3] [7.4]; E.g., Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.2]; Kozulina v. Belarus, CCPR/C/ 112/D/1773/2008, 21 October 2014 [9.3], [9.5]. E.g., Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.3] [9.4]. E.g., Kashtanova and Slukina v. Uzbekistan, CCPR/C/118/D/2106/2011, 28 October 2016 [8.2] [8.3]. Estrella v. Uruguay, Communication 74/1980, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [9.2]; Khadzhiev v. Turkmenistan, CCPR/C/113/D/2079/2011, 1 April 2015 [8.8]. CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4 [8]: ‘Persons already subject to certain legitimate con straints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint’; Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002 [6.6]. Australia CCPR/C/AUS/CO/6 (2017) 47.

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Chapter Outline By far the greatest overlap of Article 10 with other Covenant provisions is with Article 7. This chapter begins by assessing the operation of Article 10(1) where it coincides with Article 7, in the section ‘Article 10(1): Treatment of Detainees and Prisoners in Violation of Article 10(1) and/or Article 7’. The purpose is to reach an understanding as to how the Committee approaches conduct capable of falling within both provisions, and how it differentiates between them in individual circumstances. That discussion separately considers situations of ‘torture’, ‘cruel and inhuman treatment’ and ‘degrading treatment’ (following the text of Article 7), as well as particular types of detention. Discussion on Article 10(1) continues in the section ‘Conditions of Detention and Privations’ taking separately adverse environmental aspects of detention such as overcrowding, insanitary conditions, cramped cells, unrelieved confinement, lack of natural light or ventilation, exposure to temperature extremes and the lack of essential amenities; as well as particular privations, including denial of access to a lawyer, medical treatment, food or water and failure to address the needs of particularly vulnerable inmates; and the restriction of particular Covenant rights (religious manifestation, the right to vote and privacy among the most common). Segregation receives detailed attention in the sections on Article 10(2) and (3), in the separation of convicted and unconvicted individuals (based on the presumption of innocence), as well as of juveniles and adults. Special treatment is also given to juvenile offenders in pre-trial detention to ensure speedy adjudication and, once convicted, to ensure that they are accorded treatment appropriate to their age and legal status. Article 10(3) is also concerned with the aims of reformation and social rehabilitation in criminal sentencing. In much of the discussion in this chapter it is necessary to recite some of the unsavoury detail of Article 7 torture, cruel, inhuman and degrading treatment or punishment, and of Article 10 detention which fails to pay due respect to the inherent dignity of the individual, in order to distinguish conduct falling within Articles 7 and 10, and to identify the adverse measures which lead to particular findings.

A RT I C L E 1 0 ( 1 ) : TR E ATM E N T O F D E TA I NE E S A N D P R IS O N E R S IN V IO L AT I O N O F A RT I C L E 1 0 ( 1 ) A ND / O R A RT I C L E 7 Article 7 ‘Torture’ and its Coincidence with Article 10(1) Torture is discussed in depth in the chapter on Article 7,21 and when applied to detainees and prisoners is self-evidently incompatible with their treatment with humanity and with respect for their inherent dignity. 21 Chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Torture’.

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In some instances, the Committee has contented itself with Article 7 findings on the basis of torture, without considering Article 10(1), particularly where it concerns enforced disappearance, if the conduct occurs in a suite of grave violations (including those under Article 6), or where Article 14(3)(g) has its specific application.22 In others the Committee has addressed both Articles 7 and 10,23 and has often avoided allocating particular conduct to each provision, especially where the violations are obvious, numerous and overlapping. Examples include Muteba v. Zaire (involving various forms of torture such as beatings, electric shocks, mock executions and incommunicado detention for several months);24 Motta v. Uruguay (the victim suffered several hours of ill-treatment under interrogation in combination with severe torture over a period of about fifty days (electric shocks, ‘submarino’ (his hooded head was immersed into foul water), bottles or rifle barrels were inserted into his anus, and he was forced to remain standing, hooded and handcuffed and with a piece of wood thrust into his mouth, for several days and nights));25 Khalilova v. Tadjikistan (beatings by investigators to force the victim to confess guilt (he suffered additional pressure as his father was beaten and tortured in front of him by burning his hands with an iron, as a consequence of which the father died in police premises));26 Domukovsky et al. v. Georgia (severe beatings with the application of physical and moral pressure, resulting in broken bones, wounding and burning);27 and Isidore Kanana Tshiongo a Minanga v. Zaire (the victim was strapped to the concrete floor of his cell for nearly 4 hours, and was thereafter subjected to acts of torture for several more hours).28

22 For findings in cases of enforced disappearance, see chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Enforced Disappearance’; and in the context of torture to elicit confessions, section ‘Article 14 Safeguards against Confessions under Torture’. 23 Bleier v. Uruguay, Communication No. R.7/30, Supp. No. 40 (A/37/40) at 130 (1982), 29 March 1982 [13.4], [14]; Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993 [6]; Khalilova v. Tadjikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.2]. 24 Muteba v. Zaire, Communication No. 124/1982 (25 March 1983), Supp. No. 40 (A/39/40) at 182 (1984), 24 July 1984 [12] (violation of Arts 7 and 10(1) because the victim was subjected to torture and not treated in prison with humanity and with respect for their inherent dignity). 25 Motta v. Uruguay, Communication 11/1977, CCPR/C/OP/1 at 54 (1984), 29 July 1980 [2], [16] (violation of Arts 7 and 10(1) on the basis of evidence of torture and inhuman treatment). 26 Khalilova v. Tadjikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.2] (torture and cruel and inhuman treatment, in violation of Arts 7 and 10(1)). 27 Domukovsky et al. v. Georgia, CCPR/C/62/D/623, 624, 626 & 627/1995, 6 April 1998 [18.6] (‘torture and cruel and inhuman treatment’, in violation of Arts 7 and 10(1)). See also Rubio et al. v. Colombia, Communication No. 161/1983, CCPR/C/OP/2 at 192 (1990), 2 November 1987 [1.2], [11] (torture and ill treatment in violation of Arts. 7 and 10(1). 28 Tshiongo a Minanga v. Zaire, CCPR/C/49/D/366/1989 (1993), 2 November 1993 [5.3] (‘torture and cruel and inhuman treatment’, in violation of Art. 7, and not treated with respect for the inherent dignity of his person, in violation of Art. 10(1)).

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Article 7 ‘Cruel, Inhuman Treatment and Degrading Treatment’ and its Coincidence with Article 10(1) ‘Inhuman treatment’ must attain a minimum level of severity to come within the scope of Article 10. The threshold takes account all the circumstances, including the nature and context of the treatment, its duration, the physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.29 As with torture, the Committee has frequently made Article 7 findings of ‘cruel, inhuman and degrading treatment’ in detention without invoking Article 10(1),30 while at other times it has combined Article 7 and Article 10(1). When the violation concerns conditions of detention or deprivation of necessities, the Committee has tended (though with some inconsistency) to make a finding under Article 10, not Article 7, because it ‘deals with the situation of persons deprived of their liberty and encompasses the elements set out generally in article 7’.31 It has done so in cases concerning deprivation of food and water,32 medical treatment,33 of incommunicado detention,34 and those concerned primarily with conditions of detention.35 Article 7 ‘Degrading Treatment’ and its Coincidence with Article 10(1) Findings of ‘degrading’ treatment are comparatively rare, though clearly rendered in Young v. Jamaica (without addressing Article 10) when the Committee 29 Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.2]. 30 E.g., Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.4] (‘cruel, inhuman and degrading treatment’ in exceptionally harsh and degrading treatment of a detainee held incom municado, threatened with torture and death and intimidated, deprived of food, and kept locked in his cell for several days on end without the possibility of recreation); Rouse v. Philippines, CCPR/C/84/D/1089/2002, 25 July 2005 [3.11], [7.8] (‘cruel and inhuman treatment’ in the denial of proper medical treatment from the prison authorities for severe pain due to aggravated kidney problems); Titiahonjo v. Cameroon, Communication No. 1186/2003, CCPR/C/91/D/1186/2003, 26 October 2007 [6.3] (‘cruel, inhuman and degrading treatment cruel, inhuman and degrading treatment’ because of the general conditions of detention, beatings, deprivation of food and clothing and death threats). 31 The turning point seems to be Sextus v. Trinidad and Tobago, CCPR/C/72/D/818/1998, 16 July 2001 [7.4]. See, e.g., Simpson v. Jamaica, CCPR/C/73/D/695/1996, 31 October 2001 [7.2]; Francis et al. v. Trinidad and Tobago, CCPR/C/75/D/899/1999, 25 July 2002 [5.6]; Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [7.8]; Madafferi v. Australia, CCPR/C/81/D/ 1011/2001, 26 July 2004 [9.3]. In other cases (e.g., Bobrov v. Belarus, CCPR/C/122/D/2181/ 2012, 27 March 2018 [8.2]; Barkovsky v. Belarus, CCPR/C/123/D/2247/2013, 13 July 2018 [6.3]) the principle was cited to support findings under both Arts 7 and 10(1). 32 E.g. Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.4]. 33 E.g., Simpson v. Jamaica, CCPR/C/73/D/695/1996, 31 October 2001 [7.2]; Francis et al. v. Trinidad and Tobago, CCPR/C/75/D/899/1999, 25 July 2002 [2.3], [5.6] (poor food had resulted in significant weight loss, and no medicine had been provided to him); Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.3]. 34 E.g., Arutyunyan v. Uzbekistan, CCPR/C/80/D/917/2000, 29 March 2004 [6.2]. 35 E.g., Sextus v. Trinidad and Tobago, CCPR/C/72/D/818/1998, 16 July 2001 [6.3]; Xavier Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [6.4]; Lloyd Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [7.8].

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‘conclude[d] that Mr. Young was subjected to degrading treatment, in violation of article 7’ when he was assaulted by prison warders, and subjected to ‘repeated soaking of his bedding’,36 and in Mukong v. Cameroon (also without mentioning Article 10) when the author was singled out for ‘exceptionally harsh and degrading treatment’ by being detained incommunicado, threatened with torture and death and intimidated, deprived of food, and kept locked in his cell for several days on end without the possibility of recreation.37 Degrading treatment was a component of the Article 7 finding in Gilboa v. Uruguay that the victim was subjected to ‘torture and to cruel and degrading treatment’ by various forms of continuous degradation and violence, which included having to remain naked in the presence of guards and torturers, threats and insults, and promises of further acts of cruelty. It was separate from the Article 10(1) violation which resulted from her being held incommunicado for a period of fifteen days (during which the Article 7 conduct occurred) and being subjected to inhuman prison conditions.38 Degrading treatment was less explicit but nevertheless evident within the Article 7 violation in Conteris v. Uruguay because the victim was ‘held under harsh and, at times, degrading conditions, including repeated solitary confinements’, the unusual element being that he was transferred from one floor to another, to increase his feelings of distrust and insecurity.39 The discrete Article 10(1) violation was the result of his being held incommunicado for over three months. Surprisingly, given the facts, a specific finding of ‘degrading treatment’ was not made in McCallum v. South Africa (only ‘a violation of article 7’) when around sixty to seventy inmates, including the author, were forced to lie naked on the floor, building a chain of human bodies, they were sprayed with water, beaten by the warders with batons, shock boards, broomsticks, pool cues and pickaxe handles; one warder inserted a baton into the author’s anus; and the floor was wet with water, urine, faeces and blood.40 The Article 10(1) finding related to the delay of more than six weeks in receiving a medical examination following his request, as a result of that ill-treatment.41 Nor was it made in Iskiyaev v. Uzbekistan when the author claimed was that he was beaten and subjected to degrading treatment, including by being forced to touch the genitals of one of the investigators (the finding was ‘a violation of his rights under article 7’). There was

36 37 38 39

Young v. Jamaica, CCPR/C/62/D/615/1995, 4 November 1997 [5.2]. Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.4]. Gilboa v. Uruguay, CCPR/C/OP/2 at 176 (1990), 1 November 1985 [2.1], [4.3], [13.2], [14]. Conteris v. Uruguay, Communication No. 139/1983, Supp. No. 40 (A/40/40) at 196 (1985), 17 July 1985 [1.6], [9.2], [10]. 40 McCallum v. South Africa, CCPR/C/100/D/1818/2008, 25 October 2010 [2.2] [2.4], [6.4], [6.6]. 41 Ibid., [6.8].

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a separate Article 10(1) violation as a result of unsanitary prison conditions of the two correctional facilities in which tuberculosis was rife.42 Death Row Conditions Death row conditions of detention are discussed further in the chapter on Article 7,43 together with other aspects of capital punishment relevant to Articles 7 and 10. Detention on death row is a necessary consequence of imposition of the death penalty. It does not itself violate Article 7 or 10, neither does the mere length of time spent on death row, without more. Enforced Disappearance and Incommunicado Detention Enforced disappearance and incommunicado detention are also addressed in the chapter on Article 7.44 Enforced disappearance typically simultaneously violates Articles 7, 9, 10 and 16. Incommunicado detention has received Committee attention under both Articles 7 and 10, though findings are more routinely made under Article 10. (It is addressed in the chapter on Article 7 purely for convenience, given its relation to the subject matter then under discussion.) Solitary Confinement Solitary confinement would appear to be primarily an Article 10(1) issue. The ill-treatment in Kang v. Korea involved detention in solitary confinement for a period of thirteen years (eight of them after entry into force of OP1 for Korea), a measure of such gravity, and of such fundamental impact on the author that it required the most serious and detailed justification. It was in violation of Article 10(1) ‘protecting the inherent dignity of the author’.45 It is commonly used within prison as a disciplinary measure in combination with severe restrictions on communications.46 The individual circumstances of the detainee or prisoner may aggravate conditions of solitary confinement. For example, in Brough v. Australia, when a juvenile Aboriginal person with a mental disability who was given to selfharm was confined to an isolated cell without any possibility of communication, combined with exposure to artificial light for prolonged periods and the removal

42 Iskiyaev v. Uzbekistan, CCPR/C/95/D/1418/2005, 20 March 2009 [2.2], [9.3]. 43 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Death Row Conditions’. 44 See ibid., sections ‘Enforced Disappearance’ and ‘Incommunicado Detention’. 45 Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.3]. 46 See, e.g., Spisso v. Venezuela, CCPR/C/119/D/2481/2014, 17 March 2017 [7.7]; also Lebanon CCPR/C/LBN/CO/3 (2018) 35 (a disciplinary measure for up to thirty consecutive days). Outside prison, see, e.g., USA CCPR/C/USA/CO/4 (2014) 20 (persons with mental disabilities held in prolonged solitary confinement).

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of his clothes and blanket. The hardship of the imprisonment was manifestly incompatible with his condition, in violation of Article 10(1) and (3).47 Prolonged solitary confinement may also fall within the Article 7 prohibition.48 Mandela Rule 43(1) mentions indefinite solitary confinement and prolonged solitary confinement among the practices constituting torture or other cruel, inhuman or degrading treatment or punishment. Total isolation for a period of a year in Polay Campos v. Peru, in combination with restrictions on correspondence between the victim and his family, were ‘inhuman treatment’ under Article 7 and inconsistent with the standards of ‘human treatment’ required by Article 10(1).49 In the reporting process the Committee has expressed concern at the ‘inappropriate’ use of solitary confinement;50 at its use for deserters from the armed forces;51 at prolonged solitary confinement as a form of punishment,52 including juveniles;53 at long-term solitary confinement during pre-trial detention;54 and when not used only in exceptional circumstances55 and for strictly limited periods.56 (It also expressed concern at the use of police cells for long periods, since they are designed to house individuals for only a short time,57 and the existence of punishment cells in which particularly harsh conditions are imposed on prisoners.58) Immigration Detention The Committee has made Article 7 findings in a number of cases concerning immigration detention, in light of which it did not consider Article 10(1) further. In C. v. Australia, the psychiatric evidence from examinations of the author over an extended period was that his mental illness developed as a result of a protracted immigration detention. Despite increasingly serious

47 Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.3] [9.4]. See also Moldova CCPR/C/MDA/CO/3 (2016) 39 (solitary confinement can be used on children for several days as a disciplinary measure). 48 GC 20 [6]. The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by Art. 7. See also Israel CCPR/C/79/ Add.93 (1998) 20. 49 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997 [8.6]. 50 France CCPR/C/FRA/CO/4 (2008) 17. 51 Estonia CCPR/CO/77/EST (2003) 11 (solitary confinement for up to three months raised the question of conformity with Arts 9 and 10). 52 Colombia CCPR/C/COL/CO/6 (2010) 21. See also Japan CCPR/C/79/Add.102 (1998) 27. 53 China (Macao) CCPR/C/CHN HKG/CO/3 (2013) 12 (excessive length of solitary confinement of juvenile offenders possible during night time). 54 E.g., Norway CCPR/C/NOR/CO/5 (2006) 13; Denmark CCPR/C/DNK/CO/5 (2008) 11; USA CCPR/C/USA/CO/4 (2014) 20; Denmark CCPR/C/DNK/CO/6 (2016) 23. 55 South Africa CCPR/C/ZAF/CO/1 (2016) 31. 56 E.g., Chile CCPR/C/CHL/CO/6 (2014) 21; Korea CCPR/C/KOR/CO/4 (2015) 35. 57 E.g., Japan A/43/40 (1988) 612; Switzerland CCPR/C/79/Add.70 (1996) 14; Venezuela CCPR/ C/VEN/CO/4 (2015) 12. 58 Belarus CCPR/C/79/Add.86 (1997) 11.

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assessments of his condition (and a suicide attempt), and after his psychiatric difficulties had been apparent for as long as two years, the relevant minister only then exercised his exceptional power to release the author from immigration detention on medical grounds (while legally he remained in detention). Continued detention when the State was aware of his mental condition and failure to take the steps necessary to ameliorate its deterioration was in violation of Article 7.59 No Article 10 assessment was made. More recently in F.K.A.G. v. Australia and M.M.M. et al. v. Australia the Committee concluded that the combination of the arbitrary character of the authors’ detention in immigration facilities, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the authors and the difficult conditions were cumulatively inflicting serious psychological harm upon them, contrary to Article 7.60 In the light of that conclusion the Committee did not examine the Article 10(1) claims. When considering State reports the Committee has raised as a matter of Article 10 concern conditions in immigration detention, including inadequate facilities (such as an airport reception centre61 or prison),62 lack of segregation of immigration detainees from prisoners,63 lack of segregation of children from adult detainees,64 overcrowding 59 C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.4]. 60 F.K.A.G. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013 [9.8]; M.M.M. et al. v. Australia, CCPR/C/108/D/2136/2012, 25 July 2013 [10.7]. See also Madafferi v. Australia, CCPR/C/81/D/ 1011/2001, 26 July 2004 [9.3]. On mandatory detention as an Art. 9 issue, see chapter on Article 9: Liberty and Security, section ‘Reasonableness, Necessity and Proportionality’. For a perspective on immigration detention globally, see Lucy Fiske, Human Rights, Refugee Protest and Immigration Detention (Springer, 2016), pp. 191 et seq. (ch. 7). 61 Czech Republic CCPR/C/CZE/CO/3 (2013) 17 (asylum seekers may be placed in reception centres for up to 120 days, sometimes in inadequate facilities, such as at Vaclav Havel airport). See also El Salvador CCPR/C/SLV/CO/7 (2018) 31 (unsuitability of premises for asylum seekers). 62 E.g., UK CCPR/C/GBR/CO/6 (2008) 21 (some asylum seekers continue to be held in prisons); Hungary CCPR/C/HUN/CO/5 (2010) 15 (some asylum seekers and refugees were detained in prisons, including those closed down for failing to meet European standards); Rwanda CCPR/C/ RWA/CO/4 (2016) 29 (foreigners awaiting deportation were detained in prisons); South Africa CCPR/C/ZAF/CO/1 (2016) 36 (migrants were detained in police stations and prison facilities). 63 E.g., Ireland CCPR/C/IRL/CO/3 (2008) 15 (concern about the placement of persons detained for immigration related reasons in ordinary prison facilities together with convicted and remand prisoners); New Zealand CCPR/C/NZL/CO/5 (2010) 16 (asylum seekers and undocumented migrants detained in correctional facilities together with convicted prisoners); Ireland CCPR/C/ IRL/CO/4 (2014) 15 (lack of segregation between detained immigrants and sentenced prisoners); Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 42 (segregation of detained immigrants from con victed criminals to be ensured). 64 E.g., France CCPR/C/FRA/CO/5 (2015) 19 (unaccompanied minors in Mayotte were sometimes linked to adults whom they do not know in order to expel them); Greece CCPR/C/GRC/CO/2 (2015) 31 (placement of unaccompanied minors with adults in detention facilities); Switzerland CCPR/C/CHE/CO/4 (2017) 34 (adults not separated from unaccompanied minors); Romania CCPR/C/ROU/CO/5 (2017) 35 (temporary placing of minor asylum seekers in centres for adults); Serbia CCPR/C/SRB/CO/3 (2017) 32 (unaccompanied minors placed with adults); Bulgaria CCPR/C/BGR/CO/4 (2018) 31 (unaccompanied children accommodated at reception centres together with adults).

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and lack of proper sanitation,65 poor conditions66 and unsatisfactory food.67 It raised Article 7 when immigration detainees lost access to essential healthcare services,68 were subjected to harsh conditions of detention, detained in handcuffs or in isolation rooms,69 were exposed to sexual assault, or violence from staff70 or fellow detainees without intervention by the staff,71 and when torture survivors from other countries were prevented from entering the fast-track system.72 Conditions of Detention and Privations This section considers Article 10(1) incompatibility through particular deprivations, as well as various adverse conditions of detention. These usually occur in multiples and are frequently combined with Article 7 violations, occluding any bright distinction between Articles 7 and 10.73 On occasion the distinction between the two is only one of degree, or duration. In Edwards v. Jamaica holding a prisoner in deplorable conditions was not only a violation of Article 10(1), but because of the duration in which he was held in those conditions (ten years), also of Article 7.74 Prompted by the Standard Minimum Rules for the Treatment of Prisoners, in Mukong v. Cameroon the Committee gave an indication of certain minimum standards regarding the conditions of detention, which should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult. These include: minimum floor space and cubic content of air for each prisoner; adequate sanitary facilities; clothing which is not to be degrading or 65 E.g., Greece CCPR/C/GRC/CO/2 (2015) 27 (facilities chronically overcrowded, with unsanitary conditions and inadequate access to food and healthcare (Arts 7 and 10); Costa Rica CCPR/C/ CRI/CO/6 (2016) 29 (inadequate living conditions, in particular overcrowding, poor sanitation and lack of health services). 66 E.g., Latvia CCPR/C/LVA/CO/3 (2014) 14; Macedonia CCPR/C/MKD/CO/3 (2015) 17 (condi tions of detention for migrants and asylum seekers were inhuman and degrading, and included overcrowding and inadequate sanitary conditions and healthcare services); Slovakia CCPR/C/ SVK/CO/4 (2016) 30 (asylum seeking families with children systematically detained for lengthy periods in unsuitable conditions and alternatives to detention often not available to them). 67 E.g. Italy CCPR/C/ITA/CO/5 (2006) 15 (detention conditions were unsatisfactory in terms of overcrowding, hygiene, food and medical care, some migrants had undergone ill treatment, and regular independent inspections did not seem to be carried out (Arts. 7 and 10)). 68 Canada CCPR/C/CAN/CO/6 (2015) 12. 69 Japan CCPR/C/79/Add.102 (1998) 19 (violence and sexual harassment of persons detained pending immigration procedures, including harsh conditions of detention, the use of handcuffs and detention in isolation rooms). 70 Angola CCPR/C/AGO/CO/1 (2013) 16 (sexual violence by police and security forces, on undocumented Congolese migrants during their expulsion). 71 Spain CCPR/C/ESP/CO/6 (2015) 15. See also chapter on Article 9: Liberty and Security, Interaction between Article 9 and Other Covenant Provisions. 72 UK CCPR/C/GBR/CO/7 (2015) 21. 73 For insights into the work of the UN Special Rapporteur on Torture, at the interface of Art. 7 and conditions of detention, see Manfred Nowak, ‘Fact Finding on Torture and Ill Treatment and Conditions of Detention’, (2009) 1 JHRP, p. 101. 74 Edwards v. Jamaica, CCPR/C/60/D/529/1993, 28 July 1997 [8.3].

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humiliating; provision of a separate bed; and food of nutritional value adequate for health and strength.75 The Mandela Rules now address in more detail: accommodation (Rules 12–17); personal hygiene (Rule 18); clothing and bedding (Rules 19–21); food (Rule 22), exercise and sport (Rule 23); and healthcare services (Rules 24–35). Other issues covered are: prisoner file management (Rules 6–10); segregation (Rule 11); discipline and sanctions (Rules 36–46); instruments of restraint (Rules 47–49); searches (Rules 50–53); complaints by prisoners (Rules 54–57); contact with the outside world (Rules 58–63); books (Rule 64); religion (Rules 65–66); prisoners’ property (Rule 67); notifications (Rules 68–70); internal investigations (Rules 71–72); removal of prisoners (Rule 73); institutional personnel (Rules 74–82); and inspections (Rules 83–85). Special rules apply to those prisoners under sentence (Rules 86–108); suffering from mental disabilities or other health conditions (Rules 109–110); under arrest or awaiting trial (Rules 111–122); as well as civil prisoners (imprisoned under a non-criminal process, Rule 121), and those arrested or detained without charge (Rule 122).

Overcrowding One of the most frequently raised Article 10 issues in Concluding Observations is overcrowding, also an aspect of a number of OP1 Decisions such as: Martinez Portorreal v. Dominican Republic (125 individuals were detained in a cell measuring 20 m × 5 m);76 Henry v. Trinidad and Tobago (death row confinement in a 1.8 m × 2.7 m (6 ft × 9 ft) cell for 23 hours a day with five other inmates sharing a single slop pail, some of whom suffered from diseases or were drug addicts);77 Maharjan v. Nepal (overcrowded rooms infested with lice);78 Abdullayev v. Turkmenistan (forty inmates were kept in one cell, in which a metal barrel which served as a toilet was emptied once a day);79 and A.S. v. Nepal (small and overcrowded cell with twenty-six people).80 The Committee has frequently called upon States to overcome the high rate of overcrowding, and in that connection urged them to construct new facilities,81 and to provide alternatives to imprisonment,82 including through increased resort to parole and community service.83 It expressed particular concern for overcrowding 75 Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.3]. 76 Portorreal v. Dominican Republic, Communication No. 188/1984, Supp. No. 40 (A/43/40) at 207 (1988), 5 November 1987 [9.2], [11] (violation of both Arts 7 and 10(1)). 77 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [2.4], [7.4]. 78 Maharjan v. Nepal, CCPR/C/105/D/1863/2009, 19 July 2012 [2.3], [8.7]. 79 Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015 [7.3]. 80 A.S. v. Nepal, CCPR/C/115/D/2077/2011, 6 November 2015 [8.4]. 81 E.g., Croatia CCPR/C/HRV/CO/3 (2015) 19; Slovenia CCPR/C/SVN/CO/3 (2016) 26. 82 E.g., Brazil CCPR/C/BRA/CO/2 (2005) 16; Botswana CCPR/C/BWA/CO/1 (2008) 17; Tanzania CCPR/C/TZA/CO/4 (2009) 19; Malawi CCPR/C/MWI/CO/1 (2011) 13; Indonesia CCPR/C/ IDN/CO/1 (2013) 21; Croatia CCPR/C/HRV/CO/3 (2015) 19. 83 E.g., Kenya CCPR/C/KEN/CO/3 (2012) 16.

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affecting women and children,84 and it has warned that overcrowding frequently leads to malnutrition, disease and death.85

Insanitary Environment An insanitary environment almost invariably accompanies overcrowding,86 and has been a notable issue in numerous adverse Article 10 findings, including in: Campbell v. Jamaica (lack of sanitation and infestation with rats and cockroaches);87 Henry v. Trinidad and Tobago (filthy cells infested with roaches, toilets 3 m (10 ft) away from the kitchen, which was infested with rats and insects);88 Smith and Stewart v. Jamaica (dreadful sanitary conditions);89 Evans v. Trinidad and Tobago (no sanitation except for a slop pail);90 Lloyd Reece v. Jamaica (littering waste, pits dug for excrement, overwhelming stenches, slop buckets emptied only once daily, running water polluted with insects and excrement, and inmates sharing dirty plastic utensils);91 Pavlyuchenkov v. Russian Federation (meals were consumed in the same room as the toilet, in cramped conditions);92 Iskiyaev v. Uzbekistan (tuberculosis was rife);93 Japparow v. Turkmenistan (the author contracted tuberculosis);94 Hudaybergenov v. Turkmenistan (confinement in a bare concrete cell for nine days, without being allowed by the guards to use the toilets);95 and Bobrov v. Belarus (overcrowded small 84 E.g., Ethiopia CCPR/C/ETH/CO/1 (2011) 23. 85 Morocco CCPR/C/79/Add.44 (1994) 12. 86 E.g., Kenya CCPR/CO/83/KEN (2005) 19 (extreme overcrowding of prisons combined with sanitation and healthcare deficiencies may result in life threatening conditions of detention (Arts 7 and 10); Congo CCPR/C/COD/CO/3 (2006) 20 (unacceptable state of sanitation and nutrition and widespread overcrowding); Philippines CCPR/C/PHL/CO/4 (2012) 19 (issues of sanitation and overcrowding); Ireland CCPR/C/IRL/CO/4 (2014) 15 (lack of progress in eliminating adverse conditions such as overcrowding and lack of in cell sanitation facilities); Albania CCPR/C/ALB/CO/2 (2013) 16 (overcrowding and poor sanitation); Côte d’Ivoire CCPR/C/ CIV/CO/1 (2015) 19 (very high rate of overcrowding, also unsatisfactory hygienic conditions, inadequate medical care and the poor quality of food served to inmates). 87 Campbell v. Jamaica, CCPR/C/64/D/618/1995, 3 November 1998 [7.2]. 88 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [2.4], [7.3] (Art. 7 violation found in a separate incident). 89 Smith and Stewart v. Jamaica, CCPR/C/65/D/668/1995, 12 May 1999 [7.5] (violation of Arts 7 and 10(1)). 90 Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [6.4] (Art. 7 not separately considered). 91 Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [2.4]; [7.8] (Art. 7 not separately considered). 92 Pavlyuchenkov v. Russian Federation, CCPR/C/105/D/1628/2007, 20 July 2012 [9.2]. 93 Iskiyaev v. Uzbekistan, CCPR/C/95/D/1418/2005, 20 March 2009 [9.3]. On risks of being placed with prisoners with tuberculosis and skin diseases, see also Aminov v. Turkmenistan, CCPR/C/ 117/D/2220/2012, 14 July 2016 [9.3]; Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/2227/ 2012, 14 July 2016 [7.3]; Matyakubov v. Turkmenistan, CCPR/C/117/D/2224/2012, 14 July 2016 [7.3]; Nasyrlayev v. Turkmenistan, CCPR/C/117/D/2219/2012, 15 July 2016 [8.3]; Georgia CCPR/CO/74/GEO (2002) 7 (concern at the still very large number of deaths of detainees, including deaths from tuberculosis). 94 Japparow v. Turkmenistan, CCPR/C/115/D/2223/2012, 29 October 2015 [7.2]. 95 Hudaybergenov v. Turkmenistan, CCPR/C/115/D/2222/2012, 29 October 2015 [7.3]. See similar claim in Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/2227/201214 July 2016 [7.3].

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cells with a toilet not separated from the common area, used in full view of the other detainees).96

Cell Size Cell capacity was an element of the successful claims in Marais v. Madagascar (incommunicado detention in a cell measuring l m × 2 m in the basement of the political police prison);97 Peñarrieta et al. v. Bolivia (solitary confinement in very small, humid cells);98 Evans v. Trinidad and Tobago (solitary confinement on death row for five years in a cell measuring 1.8 m × 2.7 m (6 ft × 9 ft));99 Wight v. Madagascar (incommunicado detention in a basement cell measuring 1.5 m × 2 m in inhuman conditions for a period of one month, then in a room measuring 3 m × 3 m);100 Campos v. Peru (solitary confinement in a cell measuring 2 m × 2 m);101 and Tshidika v. Congo (cell sizes were 12 m × 12 m, 3 m × 3 m, two were even smaller, and all were permeated by a nauseating stench).102 Cell size was linked to overcrowding in Kennedy v. Trinidad and Tobago (remand detention for a total of forty-two months with at least five and up to ten others in a cell measuring 1.8 m × 2.7 m (6 ft × 9 ft));103 and in Mukhtar v. Kazakhstan (a cell measuring 15 m × 15 m was shared with five other detainees).104

Out-of-Cell Time The excessive time spent in confinement as part of daily routine formed part of the broader Article 10(1) claims in Evans v. Trinidad and Tobago (prisoner was allowed out of his cell only once or twice per week during which he was restrained in handcuffs);105 Boodoo v. Trinidad and Tobago (locked in a high security cell for 23 hours per day);106 Barrington Campbell v. Jamaica (kept in a cell 22 hours a day, isolated from others);107 Christopher Brown v. Jamaica (locked up in a cell 96 Bobrov v. Belarus, CCPR/C/122/D/2181/2012, 27 March 2018 [8.2]. 97 Marais v. Madagascar, CCPR/C/OP/2 at 82, 24 March 1983 [17.4] (Arts 7 and 10(1)). 98 Walter Lafuente Peñarrieta et al. v. Bolivia, CCPR/C/OP/2 at 201 (1990), 2 November 1987 [15.2]. 99 Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [6.4]. 100 Wight v. Madagascar, Communication No. 115/1982, Supp. No. 40 (A/40/40) at 171 (1985), 1 April 1985 [15.2], [17] (Arts 7 and 10(1)). 101 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997 [8.7] (Arts 7 and 10(1)). 102 Tshidika v. Congo, CCPR/C/115/D/2214/2012, 5 November 2015 [6.5]. 103 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.8]. 104 Mukhtar v. Kazakhstan, CCPR/C/115/D/2304/2013, 6 November 2015 [2.23], [7.2]. See also S.P. v. Russian Federation, CCPR/C/118/D/2152/2012, 27 October 2016 [12.3] [2.4] (punish ment cell was 2 m × 3m; other cells were designed for two had to share with two other detainees). 105 Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [6.4]. 106 Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002 [2.2], [6.4]. See also South Africa CCPR/C/ZAF/CO/1 (2016) 30 (concern at prisoners being locked up 23 hours a day for a minimum period of six months). 107 Campbell v. Jamaica, CCPR/C/64/D/618/1995, 3 November 1998 [7.2].

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for 23 hours per day);108 Cariboni v. Uruguay (detained in a small cell for 23 hours per day, and the 1-hour ‘recreation’ was afforded arbitrarily and in an unpredictable manner);109 Weerawansa v. Sri Lanka (kept for 23½ hours per day in a small and filthy cell);110 and Kennedy v. Trinidad and Tobago (allowed out of a cell only once per week).111

Lack of Opportunity for Exercise, Recreation, Education or Work Mandela Rule 23 requires every prisoner who is not employed in outdoor work to have at least 1 hour of suitable exercise in the open air daily if the weather permits, and for those who are young or of suitable age and physique to receive physical and recreational training during the period of exercise. The lack of suitable opportunity for exercise featured among other aspects of detention contrary to Article 10(1) in: Henry v. Trinidad and Tobago (exercise periods were not longer than 1 hour in a small exercise yard with handcuffs on);112 Brown v. Jamaica (exercise was denied);113 Estrella v. Uruguay (seven months without recreation);114 Pavlyuchenkov v. Russian Federation (no opportunity for outdoor exercise);115 Bobrov v. Belarus (deprived of daily walks and always kept in a cell);116 and Mukhtar v. Kazakhstan (permitted to walk in a very small enclosed space for only 75 minutes twice per day).117 Among various features of ill-treatment which resulted in an Article 7 finding in Mukong v. Cameroon was that during incommunicado detention the author was kept locked in his cell for several days on end without the possibility of recreation.118

108 Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999 [6.13]. 109 Cariboni v. Uruguay, Communication No. 159/1983, Supp. No. 40 (A/43/40) at 184 (1988), 27 October 1987 [2.3], [10]. 110 Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, 17 March 2009 [7.4]. 111 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.8]. See also Turkmenistan CCPR/C/TKM/CO/2 (2017) 22 (out of cell time only once a week for 7 minutes). 112 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [2.3], [7.3]. 113 Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999 [6.13]. 114 Estrella v. Uruguay, Communication No. 74/1980, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [8.5], [9.1]. 115 Pavlyuchenkov v. Russian Federation, CCPR/C/105/D/1628/2007 20 July 2012 [9.2]. For Concluding Observations concerning the lack of recreational facilities and opportunity for exercise, see, e.g., Uruguay CCPR A/48/40 (1993) 491; Uzbekistan CCPR/CO/71/UZB (2001) 10; Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) 19; USA CCPR/C/USA/CO/ 3/Rev.1 (2006) 32. 116 Bobrov v. Belarus, CCPR/C/122/D/2181/2012, 27 March 2018 [8.2]. 117 Mukhtar v. Kazakhstan, CCPR/C/115/D/2304/2013, 6 November 2015 [2.23], [7.2]. See also S.P. v. Russian Federation, CCPR/C/118/D/2152/2012, 27 October 2016 [12.4] (not taken for exercise outside the cell every day). 118 Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.4].

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In Quliyev v. Azerbaijan lack of sports combined with the lack of opportunities for work, education and vocational training for individuals serving life sentences resulted in the Article 10(1) finding.119 As to working conditions for prisoners, in Radosevic v. Germany the Committee concluded that Article 8(3)(c)(i) (definition of ‘forced or compulsory labour’), read in conjunction with Article 10(3), requires that work performed by prisoners primarily aims at their social rehabilitation, but does not specify whether those measures include adequate remuneration for work performed by prisoners. States may themselves choose the modalities for ensuring that treatment of prisoners, including any work or service normally required of them, is essentially directed at those Article 10(3) aims.120 The Committee has expressed concern, as an Article 10 issue, at the conditions of work of prisoners in the Czech Republic, where their average monthly wage was far below the national minimum salary, and had not been updated for many years, and was further reduced by 32 per cent in order to pay for their incarceration costs.121 It was also concerned about long and physically demanding working hours in Uzbekistan imposed on a discriminatory basis.122

Lack of Exposure to Natural Light or Ventilation A number of complaints have included the lack of natural light among numerous other adverse conditions, including those in Polay Campos v. Peru (the daylight could not be seen for more than 10 minutes per day);123 Barrington Campbell v. Jamaica (no artificial lighting in the cell and only small air vents through which natural light could enter);124 Kennedy v. Trinidad and Tobago (no natural light);125 and Evans v. Trinidad and Tobago (the only light was provided by a fluorescent strip light illuminated 24 hours per day located outside the cell above the door).126

119 Quliyev v. Azerbaijan, CCPR/C/112/D/1972/2010, 16 October 2014 [9.2] (no further consid eration of Arts 7 or 10(3)). 120 Radosevic v. Germany, CCPR/C/84/D/1292/2004, 22 July 2005 [7.3]. 121 Czech Republic CCPR/C/CZE/CO/3 (2013) 18 (recommendation that prisoners be equitably remunerated for their work and the State should reconsider the policy of obliging prisoners to pay their incarceration costs). 122 Uzbekistan CCPR/C/UZB/CO/4 (2015) 18 (imposition of long and physically demanding working hours, disproportionately affecting human rights defenders, government critics and individuals convicted of membership in Islamist parties and groups). 123 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997 [8.7] (isolation for 23 hours a day in a small cell with no more than 10 minutes’ sunlight a day, constituted ‘treatment contrary to article 7 and article 10, paragraph 1’). See also Georgia CCPR/C/GEO/CO/3 (2007) 11 (inadequate access to natural light and fresh air). 124 Campbell v. Jamaica, CCPR/C/64/D/618/1995, 3 November 1998 [3.2], [7.2]. 125 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.8]. 126 Evans v. Trinidad and Tobago, CCPR/C/77/D/908/2000, 21 March 2003 [2.3], [6.4]. See also Mandela Rule 43(1)(c) (prohibiting placement of a prisoner in a dark or constantly lit cell).

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The constant presence of artificial light contributed to adverse conditions in Masslotti and Baritussio v. Uruguay (artificial light on all day);127 Gustavo Raúl Larrosa Bequio v. Uruguay (artificial light on 24 hours per day);128 and Tshidika v. Congo (no access to daylight).129 Ventilation was an issue in Barrington Campbell v. Jamaica (lack of ventilation);130 Henry v. Trinidad and Tobago (only a ventilation hole measuring 20 cm × 20 cm (8 in × 8 in), but no window);131 Brown v. Jamaica (no adequate sanitation, ventilation or electric lighting);132 Pavlyuchenkov v. Russian Federation (no functioning ventilation system);133 and Barkovsky v. Belarus (no proper ventilation);134 and S.P. v. Russian Federation (windows were covered with metal sheets with small holes in them that did not allow adequate light or air into the cell).135 The appalling and insalubrious conditions of the high security ‘cellular confinement’ to which the author in Boodoo v. Trinidad and Tobago was subjected, as a result of which his eyesight deteriorated, included his being allowed out only once a day for ‘airing’ in an area where inmate urinal and faecal wastes were disposed of, which was damp, slippery, infested with worms and flies, and faecal waste was often scattered on the ground.136 Mandela Rule 13 requires accommodation provided for the use of prisoners (in particular sleeping accommodation) to meet all health requirements, with due regard for climatic conditions and to cubic content of air, minimum floor space, lighting, heating and ventilation. Rule 14 is concerned with ventilation, and in all places where prisoners are required to live or work requires the windows to be large enough to enable the prisoners to read or work by natural light and to be so constructed that they can allow the entrance of fresh air (whether or not there is artificial ventilation). Artificial light is also to be provided sufficient for the prisoners to read or work without injury to their eyesight.

Exposure to Wet and Temperature Extremes Extremes of temperature, wet and humidity were contributing factors to findings under Article 10 (and in some cases Article 7, as identified in the footnotes) in 127 Masslotti and Baritussio v. Uruguay, Communication No. R.6/25, Supp. No. 40 (A/37/40) at 187 (1982), 26 July 1982 [11], [13]. 128 Bequio v. Uruguay, Communication No. 88/1981, CCPR/C/OP/2 at 118 (1990), 29 March 1983 [10.3], [12]. 129 Tshidika v. Congo, CCPR/C/115/D/2214/2012, 5 November 2015 [6.5]. 130 Campbell v. Jamaica, CCPR/C/64/D/618/1995, 3 November 1998 [7.2]. 131 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [2.3], [7.3]. 132 Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999 [6.13]. 133 Pavlyuchenkov v. Russian Federation, CCPR/C/105/D/1628/2007 20 July 2012 [9.2]. 134 Barkovsky v. Belarus, CCPR/C/123/D/2247/2013, 13 July 2018 [6.2], [6.3]. 135 S.P. v. Russian Federation, CCPR/C/118/D/2152/2012, 27 October 2016 [12.3] (also detained for 18 hours in a ‘rubber cell’, where there was a strong smell of rubber and an absence of ventilation). 136 Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002 [2.2], [6.4] (Art. 10(1)).

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Peñarrieta et al. v. Bolivia (solitary confinement in very small and humid cells);137 Masslotti and Baritussio v. Uruguay (during the rainy period the water was 5–10 cm deep on the floor of the cells);138 Polay Campos v. Peru (freezing temperatures);139 Quliyev v. Azerbaijan (the cell’s walls, ceiling and floor, made entirely of concrete, were very hot during in summer and cold in winter);140 Hudaybergenov v. Turkmenistan (extreme heat in summer and extreme cold in winter).141

Lack of Sleeping Amenities Deprivation of adequate sleeping equipment has been a feature of a number of findings, including in: Barrington Campbell v. Jamaica (lack of bedding);142 Henry v. Trinidad and Tobago (forced to sleep on the floor on pieces of a cardboard box);143 Brown v. Jamaica (no mattress or other bedding);144 GorjiDinka v. Cameroon (a wet and dirty cell without a bed, table or any sanitary facilities);145 Bandajevsky v. Belarus (no beds);146 Abdullayev v. Turkmenistan (dirty blankets, insufficient in number);147 Maharjan v. Nepal (a blanket on the floor);148 Aminov v. Turkmenistan, (obliged to sleep on the bare concrete floor with no clothes on);149 S.P. v. Russian Federation (lice-ridden mattress caused severe skin condition);150 and Bobrov v. Belarus (obliged to sleep on a wooden board with approximately ten people at the same time).151 Rule 21 requires a separate bed for each prisoner, with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 137 Peñarrieta et al. v. Bolivia, CCPR/C/OP/2 at 201 (1990), 2 November 1987 [15.2] (Art. 7 finding on ‘torture and inhuman treatment’). 138 Masslotti and Baritussio v. Uruguay, Communication No. R.6/25, Supp. No. 40 (A/37/40) at 187 (1982), 26 July 1982 [11] (Arts 7 and 10(1)). 139 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997 [8.4] (Art. 10(1)). 140 Quliyev v. Azerbaijan, CCPR/C/112/D/1972/2010, 16 October 2014 [2.8], [9.2] (Art. 10(1)). 141 Hudaybergenov v. Turkmenistan, CCPR/C/115/D/2222/2012, 29 October 2015 [7.3] (Art. 10(1), also obliged to use outdoor showers even during winter). Similar climatic conditions in Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.8]; Matyakubov v. Turkmenistan, CCPR/C/117/D/2224/2012, 14 July 2016 [7.3]; Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/ 2227/2012, 14 July 2016 [7.3]; Uchetov v. Turkmenistan, CCPR/C/117/D/2226/2012; 15 July 2016 [7.3] [7.4]. 142 Campbell v. Jamaica, CCPR/C/64/D/618/1995, 3 November 1998 [7.2]. 143 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [2.4], [7.3]. 144 Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999 [6.13]. 145 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.2]. 146 Bandajevsky v. Belarus, CCPR/C/86/D/1100/2002, 28 March 2006 [10.6]. 147 Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015 [7.3]. 148 Maharjan v. Nepal, CCPR/C/105/D/1863/2009, 19 July 2012 [2.3], [8.7]. 149 Aminov v. Turkmenistan, CCPR/C/117/D/2220/2012, 14 July 2016 [9.3]. 150 S.P. v. Russian Federation, CCPR/C/118/D/2152/2012, 27 October 2016 [12.4]. 151 Bobrov v. Belarus, CCPR/C/122/D/2181/2012, 27 March 2018 [8.2]; similarly Barkovsky v. Belarus, CCPR/C/123/D/2247/2013, 13 July 2018 [6.2], [6.3].

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Access to a Lawyer and Family The chapters on Articles 7 and 9 highlighted the need for prompt and regular access by detainees and prisoners to doctors, lawyers and family members,152 also relevant to Article 10.153 The Mandela Rules address access to legal advice in Rule 41(3) and (4) (to allow prisoners to defend serious disciplinary charges), Rule 54 (upon admission, every prisoner is to be informed about access to legal advice and procedures for making requests or complaints), and, most importantly, Rule 61(1) (there is to be adequate opportunity, time and facilities to be visited by and to communicate and consult with a legal adviser of choice on any legal matter). The right of access to a lawyer also needs to be facilitated by avoiding restrictions on correspondence (discussed further below).154

Lack of Medical Treatment A number of successful petitions have included claims concerning the denial of access to appropriate medical care. An Article 10(1) finding has sufficed (in the absence of circumstances justifying a stricter Article 7 ruling), even when the treatment denied was for a serious heart condition,155 or was recommended after a hospital assessment following a stroke,156 and where such failure had significant consequences, such as severe deterioration of eyesight.157 152 See chapters on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Safeguards against Torture and Ill treatment; Article 9: Liberty and Security, section ‘Article 9(2): The Right to be Informed, at the Time of Arrest, of the Reasons for Arrest and Promptly be Informed of any Charges’. 153 E.g., Kozulina v. Belarus, CCPR/C/112/D/1773/2008, 21 October 2014 [9.3], [9.5] (denial of access to counsel and to independent medical expertise); Mukhtar v. Kazakhstan, CCPR/C/115/ D/2304/2013, 6 November 2015 [7.3] (denied access to family and lawyers); Ortikov v. Uzbekistan, CCPR/C/118/D/2317/2013, 26 October 2016 [10.4] (visits by lawyer and wife restricted); Kashtanova and Slukina v. Uzbekistan, CCPR/C/118/D/2106/2011, 28 October 2016 [8.2] (family visits limited even for minors); Peru CCPR/CO/70/PER (2000) 14 (high altitude prisons where visiting rights, inter alia, were far from easy to exercise owing to the difficulty family members have in reaching them); Thailand CCPR/CO/84/THA (2005) 16 (the right of detainees of access to lawyers and members of the family was not always observed in practice); Nepal CCPR/C/NPL/CO/2 (2014) 12 (inadequate facilities for confiden tial meetings with lawyers (Arts. 9 and 10); Cameroon CCPR/C/CMR/CO/5 (2017) 29 (diffi culties encountered by families wishing to visit their relatives in prison). See also chapter on Article 14: Fair Trial Rights, section ‘Article 14(3)(b) Adequate Time and Facilities for Preparation of Defence and to Communicate with Counsel’. 154 Estrella v. Uruguay, Communication No. 74/1980, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [1.13], [9.2] (severe censorship prevented detainees writing to their lawyers or to international organisations). See also Zaire A/42/40 (1987) 269 (examining procedures for preserving confidentiality of correspondence between detainees and their lawyers). 155 Mukhtar v. Kazakhstan, CCPR/C/115/D/2304/2013, 6 November 2015 [2.24], [7.2] (hyperten sion, hypertrophy of the left ventricle, cerebral microhaemorrhage and periodic disruptions of the cerebral blood flow). 156 Mambu v. Congo, CCPR/C/118/D/2465/2014, 3 November 2016 [2.13], [3.3], [9.4]. 157 Engo v. Cameroon, CCPR/C/96/D/1397/2005, 22 July 2009 [3.1], [7.5]. Cf. Fabrikant v. Canada, CCPR/C/79/D/970/2001, 6 November 2003 [9.3] (inadmissible as insufficient to

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The threshold for violating Article 10(1) is comparatively low, and has included failure to provide medical care for synovitis,158 stomach pains and bruises.159 Medical care includes dental care,160 and may extend to the provision of prescription glasses.161 Medical treatment may not be denied even if the cause is self-inflicted, such as by a hunger strike.162 Article 10 is violated by the absence of medical attention when needed, and is not satisfied by treatment on only some occasions.163 Medical neglect formed a core part of Article 7 findings (without any under Article 10) in: Clive Johnson v. Jamaica, after the author was twice beaten on his testicles with a metal detector during a search by soldiers so that he passed blood in his urine, and was denied medical attention until four days later (when a doctor was sent at the behest of an NGO), but even then he never received the medication prescribed;164 Rouse v. Philippines, because the author suffered from severe pain for a considerable amount of time due to aggravated kidney problems, and was not able to receive proper medical treatment from the prison authorities;165 Toshev v. Tajikistan, in the context of isolated detention without sufficient food, during which the victim contracted a skin disease and was not provided with any medical treatment;166 and Guneththige et al. v. Sri Lanka, in failure to provide medical treatment needed as a result of severe beatings on the head and abdomen.167

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suggest that the authorities failed to determine the most appropriate treatment in accordance with professional medical standards). Morrison v. Jamaica, CCPR/C/64/D/663/1995, 25 November 1998 [8.8]. Askarov v. Kyrgyzstan, CCPR/C/116/D/2231/2012, 31 March 2016 [8.5]. Howell v. Jamaica, CCPR/C/79/D/798/1998, 21 October 2003 [6.2] (the author’s conditions of detention taken together with the lack of medical and dental care and the burning of his personal belongings violated Art. 10(1)). Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [7.2] (complaint that the author had not been given new eye glasses was admissible but refuted on the facts). Kozulina v. Belarus, CCPR/C/112/D/1773/2008, 21 October 2014 [9.5] (denied access to independent medical expertise as requested during his fifty three day hunger strike, a time when he particularly needed it, which the Committee characterised as failure to provide humane treatment); Luis Alberto Solorzano v. Venezuela, Communication No. 156/1983, Supp. No. 40 (A/41/40) at 134 (1986), 26 March 1986 [1.6], [12]. Esergepov v. Kazakhstan, CCPR/C/116/D/2129/2012, 29 March 2016 [4.8], [11.2] (hyperten sion and coronary artery disease). See also Tshidika v. Congo, CCPR/C/115/D/2214/2012, 5 November 2015 [6.5] (no access to medical care except on the last day of detention); Samathanam v. Sri Lanka, CCPR/C/118/D/2412/2014, 28 October 2016 [6.2] (not provided with medication for diabetes until visited by the embassy). Johnson v. Jamaica, Communication No. 592/1994, CCPR/C/64/D/592/1994, 25 November 1998 [3.5], [10.5]. Rouse v. Philippines, CCPR/C/84/D/1089/2002, 25 July 2005 [3.11], [7.8]. Toshev v. Tajikistan, CCPR/C/101/D/1499/2006, 30 March 2011 [6.2]. Guneththige and Guneththige v. Sri Lanka, CCPR/C/113/D/2087/2011, 30 March 2015 [6.4] (despite his critical medical condition (uninterrupted bleeding) to which the detention autho rities were alerted, they failed to seek medical assistance for several hours).

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Findings might be said to be more often made under both Articles 7 and 10 (than under Article 10(1) alone)168 when a medical condition is caused or exacerbated by conditions of detention. In Marinich v. Belarus the negative effect of the inhuman, severe and degrading conditions in which the victim was held, and inhuman treatment he suffered, led to a stroke while in detention because the administration refused to provide him with the required medication. It also failed to provide treatment for one week after his stroke. He stayed in prison for more than a year after that and encountered serious health problems.169 Similar Article 7 and 10(1) findings resulted in Henry and Everald Douglas v. Jamaica from ill-treatment of prisoners on death row, which included for one author being kept in a cold cell after being diagnosed with cancer, and for the other denial of medical attention for problems caused by a gunshot wound;170 and in Smith and Stewart v. Jamaica when in dreadful sanitary conditions the author received inadequate medical attention, which caused the loss of his sight in one eye.171 However, in Madafferi v. Australia the decision by the authorities to return the author from psychiatric detention to immigration detention only violated Article 10(1). It was contrary to the recommendations of various doctors and psychiatrists, who all advised that a further period of placement there would risk continued deterioration of the author’s mental health. Article 7 was not separately considered, in keeping with the principle that Article 10 deals specifically with the situation of persons deprived of their liberty.172 Although it is not always possible with dual findings to attribute the failure to provide medical treatment to Article 7 or 10,173 in some cases a clear separation is usefully made. In Nicholas Henry v. Jamaica the Committee found the lack of medical treatment for a testicular condition to be in violation of Article 10; and an assault on the affected part of the author’s body similar to that in Johnson v. Jamaica, to be in violation of Article 7.174 In McCallum v. South Africa the 168 Cf. A.S. v. Nepal, CCPR/C/115/D/2077/2011, 6 November 2015 [8.4] (only Art. 10(1) violated when denied medical treatment for injuries received while in overnight detention). 169 Marinich v. Belarus, CCPR/C/99/D/1502/2006, 16 July 2010 [10.3]. See also Sendic v. Uruguay, Communication No. R.14/63, Supp. No. 40 (A/37/40) at 114 (1982), 28 October 1981 [2.3, [2.7], [16.2], [20] (denied treatment for a hernia sustained while being beaten). 170 Henry and Douglas v. Jamaica, CCPR/C/57/D/571/1994, 25 July 1996 [9.5]. 171 Smith and Stewart v. Jamaica, CCPR/C/65/D/668/1995, 12 May 1999 [7.5]. 172 Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.3]; cf. C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.4] (the continued immigration detention of the author when the State was aware of his mental condition was in violation of Art. 7); and commentary below in section ‘Article 7 “Cruel, Inhuman Treatment and Degrading Treatment” and its Coincidence with Article 10(1)’. 173 E.g., Masserra et al. v. Uruguay, Communication No. R.1/5, Supp. No. 40 (A/34/40) at 124 (1979), 15 August 1979 [9(e)(ii)] and [10(ii) (Jose Luis Massera)]; Mulezi v. Congo, CCPR/C/ 81/D/962/2001, 8 July 2004 [2.5], [5.3]. 174 Henry v. Jamaica, CCPR/C/64/D/610/1995, 21 October 1998 [3.2], [3.3], [7.3] (the author had a testicular condition since he was sentenced, for which a doctor recommended an operation which was denied; he was subsequently assaulted by a soldier with a metal detector on his testicles).

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author feared he had contracted HIV as a result of an incident in which around sixty to seventy inmates were forced to lie naked on the floor in a chain of human bodies amid water, urine, faeces and blood. The denial of several requests to be tested for HIV, in combination with the incident itself, resulted in an Article 7 finding. The delayed response (six weeks) to the request to see a doctor immediately following the incident resulted in a finding under Article 10(1) in the light of the State’s obligation to provide for the security and well-being of those deprived of their liberty.175 Failure to provide adequate medical treatment may in some circumstances be an Article 6 (rather than Article 7 or 10) issue. In Titiahonjo v. Cameroon the Committee upheld the author’s claim that her husband’s death in custody amounted to a violation of Article 6 by failing to allow a nurse access to his cell when he was clearly severely ill and by condoning life threatening conditions of detention at Bafoussam prison, especially the apparently unchecked propagation of life-threatening diseases.176 Forced medical treatment has already been discussed in the chapter on Article 7.177 Rule 27 of the Mandela Rules requires prompt access to medical attention in urgent cases. Prisoners who need specialised treatment or surgery are to be transferred to specialised institutions or to civil hospitals. The healthcare service is to prepare and maintain accurate, up-to-date and confidential individual medical files on all prisoners, and all prisoners are to be granted access to their files upon request (Rule 26). The consistent and unexplained denial of access to medical records in Zheludkov v. Ukraine, despite requests, was sufficient for an adverse Article 10(1) decision, even though medical care was provided (including hospitalisations) during the period of detention, and a requested medical certificate based on medical records was issued.178 In Concluding Observations the Committee has raised the deprivation of timely access to health and medical services, in many cases referring to the Minimum Rules for the Treatment of Prisoners.179 175 McCallum v. South Africa, CCPR/C/100/D/1818/2008, 25 October 2010 [6.6], [6.8]. Part of the successful Art. 10(1) claim in Umarova v. Uzbekistan, CCPR/C/100/D/1449/2006, 19 October 2010 [8.7], was that the author claimed that her husband’s lawyer’s requests for immediate medical attention were delayed without justification. 176 Titiahonjo v. Cameroon, Communication No. 1186/2003, CCPR/C/91/D/1186/2003, 26 October 2007 [6.2]. 177 Chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Medical or Scientific Experimentation’. 178 Tatiana Zheludkova v. Ukraine, CCPR/C/75/D/726/1996, 29 October 2002 [8.4]. 179 E.g., Mongolia CCPR/C/79/Add.120 (2000) 12; Korea (DPRK) CCPR/CO/72/PRK (2001) 16; Botswana CCPR/C/BWA/CO/1 (2008) 17; Chad CCPR/C/TCD/CO/1 (2009) 23; Bulgaria CCPR/C/BGR/CO/3 (2011) 18; Turkey CCPR/C/TUR/CO/1 (2012) 18; Peru CCPR/C/PER/ CO/5 (2013) 21; Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 19; Croatia CCPR/C/HRV/CO/3 (2015) 19; Jamaica CCPR/C/JAM/CO/4 (2016) 32; Moldova CCPR/C/MDA/CO/3 (2016) 28;

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Vulnerable Detainees and Prisoners Certain detainees and prisoners are at risk, whether by virtue of their membership of minority groups;180 their mental disability;181 physical disability;182 their advanced age;183 their young age, including their susceptibility to abuse and other ill-treatment,184 particularly if not segregated from adults;185 their

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Bangladesh CCPR/C/BGD/CO/1 (2017) 26; Swaziland CCPR/C/SWZ/CO/1 (2017) 35; Thailand CCPR/C/THA/CO/2 (2017) 34; Turkmenistan CCPR/C/TKM/CO/2 (2017) 23; Belarus CCPR/C/BLR/CO/5 (2018) 36; Liberia CCPR/C/LBR/CO/1 (2018) 35. E.g., Slovakia CCPR/CO/78/SVK (2003) 11 (ill treatment of Roma during police investiga tions); Czech Republic CCPR/C/CZE/CO/2 (2007) 9 (police misconduct, particularly against Roma and other vulnerable groups, especially at the time of arrest and detention); Macedonia CCPR/C/MKD/CO/2 (2008) 11 (ill treatment of Roma detainee). E.g., USA CCPR/C/USA/CO/3/Rev.1 (2006) 52 (reported high numbers of severely mentally ill in detention, as well as in regular US jails); Russian Federation CCPR/C/RUS/CO/6 (2009) 19 (no recourse to challenge ill treatment or abuse); Bulgaria CCPR/C/BGR/CO/3 (2011) 17 (no independent inspection mechanism of mental health institutions); USA CCPR/C/USA/CO/ 4 (2014) 20 (persons with mental disabilities held in prolonged solitary confinement). See also General Assembly, Principles for the Protection of Persons With Mental Illness and the Improvement of Mental Health Care, 17 December 1991, A/RES/46/119. For the treatment applied, see also Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) 19 (inadequate pharma cotherapy based treatment of mental health patients); Bulgaria CCPR/C/BGR/CO/3 (2011) 10 (the use of restraints and the enforced administration of intrusive and irreversible treatments such as neuroleptic drugs). E.g., Hamilton v. Jamaica, CCPR/C/66/D/616/1995, 23 July 1999 [3.1], [8.2] (violation of Art. 10(1) in failure to accommodate the needs of a paralysed prisoner obliged to fellow inmates to move him from his cell and remove his slop bucket); Suleimenov v. Kazakhstan, CCPR/C/119/ D/2146/2012, 21 March 2017 [8.7] (the pre trial detention and prison facilities were not suited for a disabled person able to move only in a wheelchair, resulting in confinement of the author in a cell without any meaningful activities, aggravated by bedsores; he was also not provided with continuous assistance even for his most basic needs); Slovakia CCPR/C/SVK/CO/4 (2016) 20 (persons with disabilities continue to live in large institutions and the practice of physical and mechanical restraints, in netted cage beds, continued); Switzerland CCPR/C/CHE/CO/4 (2017) 38 (offenders who were mentally ill may be placed in regular prisons). E.g., Austria CCPR/C/AUT/CO/5 (2015) 23 (neglect for older persons in correctional institu tions, due to shortcomings in healthcare staffing levels and adequate training). E.g., Cambodia CCPR/C/79/Add.108 (1999) 15 (reports that children in juvenile detention facilities were subjected to beatings and to ill treatment); Uzbekistan CCPR/CO/71/UZB (2001) 21 (allegations that detained children were subjected to ill treatment and unlawful investigative methods); China (Macao) CCPR/C/CHN HKG/CO/3 (2013) 12) (excessive length of solitary confinement of juvenile offenders possible during night time); Philippines CCPR CCPR/CO/79/PHL (2003) 17 (persistent reports of ill treatment and abuse of children in detention, including sexual abuse). See also Guatemala CCPR/C/GTM/CO/4 (2018) 32 (large number of children living in substandard conditions in care institutions). For Art. 7 and 9 concerns, see, e.g., Australia CCPR/C/AUS/CO/5 (2009) 24 (children and juveniles in immi gration detention facilities were sometimes subject to abuse); Israel CCPR/C/ISR/CO/3 (2010) 22 and Israel CCPR/C/ISR/CO/4 (2014) 15; Bulgaria CCPR/C/BGR/CO/4 (2018) 39 (children as young as eight exposed to violence and disciplinary isolation). For lack of segregation in immigration detention see sections ‘Treatment of Detainees and Prisoners in Violation of Article 10(1) and/or Article 7’, ‘Immigration Detention’; and in the criminal justice system, see sections ‘Article 10(2)(b): Segregation of “Accused Juveniles” from Adults (in Pre trial Detention)’ and ‘Article 10(3): Segregation of Juvenile Offenders from Adults’, ‘Treatment Appropriate to Their Age and Status, and the Purpose of the Penal System’, below.

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poverty;186 or gender, including because of their pregnant or post-natal condition,187 they are abused by male guards,188 or are otherwise victims of violence.189 Some of these concerns may be addressed by segregating men and women, as required by Article 3,190 as well as convicted and unconvicted prisoners, and adults and juveniles,191 as required by Article 10(2) and (3), as discussed further below. Among the inter-prisoner sources of risk are violence192 (including gang rape),193 drug abuse,194 and disease, such as HIV/AIDS and hepatitis C,195 or tuberculosis.196 An element of the Article 10 finding in Reece v. Jamaica was that the author was confined with prisoners who were mentally ill and who, on occasion, attacked fellow prisoners;197 and of the Article 7 and 10(1) findings in S.P. v. Russian Federation were the constant threats by other detainees, resulting in a suicide attempt.198

Deprivation of Food and/or Water The Committee has not been consistent in its deployment of Articles 7 and 10 in response to deprivation of food and water, which may be because the assessment of such claims is shaped by broader factors. 186 E.g., Chile CCPR/C/CHL/CO/5 (2007) 10 (ill treatment by the security forces, primarily at the moment of arrest and against the most vulnerable, including the poor). 187 CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10, Adopted at the Sixty eighth Session of the Human Rights Committee, on 29 March 2000 (GC 28) [15]. 188 E.g., USA CCPR/C/79/Add.50 (1995) 20 (privacy); Sierra Leone CCPR/C/SLE/CO/1 (2014) 21 (reports that women incarcerated in detention facilities have been attacked by male guards). 189 GC 28 [15]; Mexico CCPR/C/MEX/CO/5 (2010) 16 (concern at reports that violence against women in detention was widespread). 190 GC 28 [15] (States Parties should report on whether men and women are separated in prisons); Cameroon CCPR A/49/40 (1994) 194; Honduras CCPR/C/HND/CO/2 (2017) 30 (lack of separate facilities for women in some mixed centres). 191 E.g., Cameroon CCPR A/49/40 (1994) 194 (men and women, convicted and unconvinced prisoners, adult and juvenile offenders were held in the same, generally insalubrious, cells); Benin CCPR/CO/82/BEN (2004) 17 (juveniles not always held separately from adults); Cyprus CCPR/C/CYP/CO/4 (2015) 15 (minors and migrants not always being segregated from the rest of the detained population). 192 E.g., Ireland CCPR/C/IRL/CO/3 (2008) 15; Ireland CCPR/C/IRL/CO/4 (2014) 15 (high level of inter prisoner violence (Art. 10)); Ecuador CCPR/C/ECU/CO/6 (2016) 23 (authorities were alleged not to have taken appropriate measures to prevent violence); Ghana CCPR/C/GHA/CO/ 1 (2016) 29 (inmates designated as ‘black coats’ exercised de facto authority over other prisoners); Moldova CCPR/C/MDA/CO/3 (2016) 27 (inter prisoner violence). 193 E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 15. 194 E.g., Portugal CCPR/C/PRT/CO/4 (2012) 11. 195 McCallum v. South Africa, CCPR/C/100/D/1818/2008, 25 October 2010 [6.6], [6.8]; Portugal CCPR/C/PRT/CO/4 (2012) 11. 196 See instances of risk of tuberculosis in petitions cited in section ‘Lack of Medical Treatment’, above. 197 Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [2.4], [7.8]. 198 S.P. v. Russian Federation, CCPR/C/118/D/2152/2012, 27 October 2016 [12.5].

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In the comparatively early case of Wolf v. Panama the Committee placed the denial of food for five days within Article 10(1) rather than Article 7 when stating its Opinion that when combined with the physical ill-treatment to which the author was subjected, while not amounting to a violation of Article 7, did violate Article 10(1).199 More recently in Tshidika v. Congo and A.S. v. Nepal the failure to provide food or water, for more than 24 hours and for 20 hours, respectively, was an Article 10(1) issue alone.200 Its lex specialis approach to Article 10(1) cemented the preference for Article 10 overtly in cases such as Mwamba v. Zambia, addressing the denial of food and water for three days (together with claims of assault, shackling and insanitary conditions);201 but in other cases this was less clearly the basis of the Article 10 finding.202 Article 10(1) findings have been made where (among other factors) the food received in detention was monotonous and inadequate,203 or was insufficient.204 Findings have been made under both Articles 7 and 10, including in Martinez Portorreal v. Dominican Republic for deprivation of food and water over more than 24 hours in circumstances of such overcrowding that some had to sit on excrement;205 Mika Miha v. Equatorial Guinea for food deprivation allegedly over one week (which the Committee accepted as several days) in combination with the denial of medical attention;206 and Barkovsky v. Belarus, when food and water were denied for 30 hours following arrest.207 The Committee confined itself to Article 7 in Titiahonjo v. Cameroon in the context of death in custody when answering the claims to deprivation of food and clothing combined with general conditions of detention, beatings, death threats and incommunicado detention;208 and in Bithashwiwa and Mulumba v. Zaire 199 Wolf v. Panama, CCPR/C/44/D/289/1988 at 80 (1992), 26 March 1992 [6.7]. 200 Tshidika v. Congo, CCPR/C/115/D/2214/2012, 5 November 2015 [6.5]; A.S. v. Nepal, CCPR/C/ 115/D/2077/2011, 6 November 2015 [8.4]. 201 Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [2.1], [6.4]. 202 E.g., Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108/1121/2002, 27 March 2007 [7.3] (denied food for the first three days of arrest). 203 Sharifova et al. v. Tajikistan, CCPR/C/92/D/1209, 1231/2003 & 1241/2004, 1 April 2008; Smith and Stewart v. Jamaica, CCPR/C/65/D/668/1995, 12 May 1999 [7.5] (the quality and quantity of the food was grossly inadequate). 204 Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108/1121/2002, 27 March 2007 [7.3] (food insufficient). In Hill and Hill v. Spain, CCPR/C/59/D/526/1993, 2 April 1997 [13] the Committee made an Art. 10(1) finding when for the first five out of 10 days in which the authors were held in police custody they were left without food, but it did not address the claim that they were given only warm water to drink. 205 Portorreal v. Dominican Republic, Communication No. 188/1984, Supp. No. 40 (A/43/40) at 207 (1988), 5 November 1987 [9.2], [11] (‘inhuman and degrading treatment’ and ‘lack of respect for his inherent human dignity’). See also Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999 [6.13] (denied adequate nutrition and clean drinking water among other factors contributing to violation of Arts 7 and 10(1)). 206 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 1994 [2.5], [6.4] (‘cruel and inhu man treatment’). 207 Barkovsky v. Belarus, CCPR/C/123/D/2247/2013, 13 July 2018 [6.2], [6.3]. 208 Titiahonjo v. Cameroon, Communication No. 1186/2003, CCPR/C/91/D/1186/2003, 26 October 2007 [6.2] [6.3] (‘cruel, inhuman and degrading treatment’).

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concerning deprivation of food and drink for four days after arrest and subsequent internment under unacceptable sanitary conditions.209 The Committee’s Article 10(1) finding in Kennedy v. Trinidad and Tobago was partly based on the provision of ‘wholly inadequate food that did not take into account [the author’s] particular dietary requirements’ (what those were is not specified).210 Religious dietary requirements are not mentioned in the Mandela Rules, although Rule 22 requires food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served, and drinking water to be available whenever needed. In examining State reports the Committee has raised allegations that food was of poor quality;211 food and drinking water were insufficient;212 there was a lack of access to drinking water;213 prisoners suffered from malnutrition;214 the diet was reduced for up to three weeks without medical supervision;215 and that a number had died in prison as a result of the so-called ‘black diet’, which consisted in the deprivation of all food and water.216

Denial of Religious Requirements Among various factors giving rise to Article 10(1) violation in Henry v. Trinidad and Tobago was that no provision was made for the author’s dietary needs as a Muslim.217 As just mentioned, such needs are not covered by the Mandela Rules, either in those provisions concerning food (Rule 22) or religion (Rules 65 and 66 concern religious services, books and instruction, and religious representatives). However, the author successfully appealed to Article 18 in Boodoo v. Trinidad and Tobago when not allowed to wear a beard or worship at religious services, and his prayer books were taken from him. The forcible removal of his beard occurred at the time of other physical assaults which together violated Article 7.218

209 Bithashwiwa and Mulumba v. Zaire, CCPR/C/37/D/241/242/1987, 2 November 1989 [13(b)] (‘inhuman treatment’). See also Alegre v. Peru, CCPR/C/85/D/1126/2002, 28 October 2005 [3.2], [7.2] (violation of Art. 7 when among allegations of torture the author was left without food and kept in solitary confinement for seven days; also a violation of Art. 10(1) for the conditions of detention, which included inadequate food [2.9]). 210 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.8]. 211 E.g., Chad CCPR/C/TCD/CO/1 (2009) 23; Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 19. 212 E.g., Thailand CCPR/CO/84/THA (2005) 16 (food inadequate); Cameroon CCPR/C/CMR/CO/ 4 (2010) 21 (inadequate rations and quality of food); Madagascar CCPR/C/MDG/CO/3 (2007) 22 (food not sufficient); Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 17 (food and drinking water). 213 E.g., Bulgaria CCPR/C/BGR/CO/3 (2011) 18. 214 E.g., Central African Republic CCPR/C/CAF/CO/2 (2006) 15. 215 E.g., Grenada CCPR/C/GRD/CO/1 (2009) 16. 216 E.g., Guinea A/39/40 (1984) 145. 217 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [2.4], [7.3]. 218 Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002 [6.5] [6.6].

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Preventing an inmate associating freely with other Jehovah’s Witnesses in the same prison was within Article 10(1) in Yegendurdyyew v. Turkmenistan and Matyakubov v. Turkmenistan.219 On the provision of books generally Rule 64 states that every prison shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it. Among other conditions which resulted in the successful Article 10(1) outcome in Cariboni v. Uruguay was that prisoners were allowed to read only certain books and many had been withdrawn or destroyed (although this was not singled out in the Committee’s decision).220

Denial of the Right to Vote A blanket deprivation of the right to vote for anyone sentenced to a term of imprisonment was found to violate Article 25 in Yevdokimov and Rezanov v. Russian Federation because it did not admit any arguments of reasonableness as required by that provision.221 Reasonableness must be construed in the light of the Article 10(3) sentencing aims of reformation and rehabilitation discussed below.222

Restrictions on Communications Restrictions on correspondence have far greater significance merely than contact with the outside world. They can impede access to justice, and the accountability of authorities for ill-treatment and adverse prison conditions. Estrella v. Uruguay is a prominent case involving severe censorship preventing prisoners writing to their lawyers or international organisations, which concluded that there had been a violation of Article 17 read in conjunction with Article 10(1). Prison officials acted as ‘censors’ arbitrarily deleting sentences, refusing to dispatch letters during the author’s detention, and preventing him receiving incoming correspondence.223 The allegations on which the Article 10 finding in Iskiyaev 219 Matyakubov v. Turkmenistan, CCPR/C/117/D/2224/2012, 14 July 2016 [7.3]; Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/2227/2012, 14 July 2016 [7.3]. 220 Cariboni v. Uruguay, Communication No. 159/1983, Supp. No. 40 (A/43/40) at 184 (1988), 27 October 1987 [2.3], [10]. 221 Yevdokimov and Rezanov v. Russian Federation, CCPR/C/101/D/1410/2005, 21 March 2011 [7.5]. See also Australia CCPR/C/AUS/CO/6 (2017) 47; Turkmenistan CCPR/C/TKM/CO/2 (2017) 50; Lao CCPR/C/LAO/CO/1 (2018) 37. 222 See section ‘Reformation and Social Rehabilitation of All Prisoners’, below. In this connection, see also the Individual Concurring Opinion of Committee member Mr Fabián Omar Salvioli in Yevdokimov and Rezanov. 223 Estrella v. Uruguay, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [1.13], [9.2]. See also Zaire A/ 42/40 (1987) 269 (procedures for preserving confidentiality of correspondence between detai nees and their lawyers); Congo CCPR/C/79/Add.118 (2000) 17 (concern at violations of secrecy of correspondence).

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v. Uzbekistan was based included the fact that complaints about poor conditions to several different authorities did not reach the addressees.224 It is sufficient that the correspondence is restricted, without it having the purpose of pursing legal advice or official complaints. In Smith and Stewart v. Jamaica the denial of access to non-legal mail,225 and in Polay Campos v. Peru restrictions on correspondence between the prisoner and his family, contributed to findings under both Article 7 and Article 10(1).226 Mandela Rule 58 stipulates that prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals, by corresponding in writing and using, where available, telecommunication, electronic, digital and other means, and by receiving visits. Sometimes the Committee addresses this only under Article 17.227

Interference with Privacy The failure to separate male and female prisoners and to protect their privacy and dignity was a component of the Article 10(1) decision in Tshidika v. Congo.228 Privacy has been an issue in US prisons where male prison officers had access to women’s detention centres, leading to serious allegations of sexual abuse of women and the invasion of their privacy.229 Naked exposure in Gilboa v. Uruguay and Bradley McCallum v. South Africa was dealt with under Article 7 (rather than Article 17), to meet the gravity of the accompanying illtreatment.230 Routine strip searches in places of detention have also been an Article 10 issue,231 as has the presence of law enforcement personnel during medical examinations.232

A RT I C L E 1 0 ( 2 ) ( a ) : S E G R E G AT ION OF ‘ A C C U S E D ’ F R OM ‘ C O N V I C T E D ’ P E R S O N S I N P R E - T R I AL D E T E N T IO N Article 10(2)(a) is aimed at ensuring that pre-trial detainees, by virtue of their unconvicted status, are segregated from convicted prisoners, consistent with their

224 Iskiyaev v. Uzbekistan, CCPR/C/95/D/1418/2005, 20 March 2009 [9.3]. 225 Smith and Stewart v. Jamaica, CCPR/C/65/D/668/1995, 12 May 1999 [7.5]. 226 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997 [8.6] (for a period unable to receive and to send any correspondence). 227 See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Correspondence (Prison Procedures)’. 228 Tshidika v. Congo, CCPR/C/115/D/2214/2012, 5 November 2015 [6.5]. 229 USA CCPR/C/79/Add.50 (1995) 20. 230 Gilboa v. Uruguay, CCPR/C/OP/2 at 176 (1990), 1 November 1985 [4.3], [14]; McCallum v. South Africa, CCPR/C/100/D/1818/2008, 25 October 2010 [2.2] [2.4], [6.4]. 231 Australia CCPR/C/AUS/CO/6 (2017) 41. 232 Hungary CCPR/C/HUN/CO/6 (2018) 35.

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right to be presumed innocent.233 In Pinkney v. Canada the Committee interpreted this to mean that before conviction those accused ‘shall be kept in separate quarters (but not necessarily in separate buildings)’. It did not consider convicted prisoners working as food servers and cleaners in the remand area of the prison to be incompatible with Article 10(2)(a), provided that contacts between the two classes were kept strictly to a minimum necessary for the performance of those tasks.234 However, a violation of Article 10(2)(a) was found in Wolf v. Panama because the author was detained for more than a year while awaiting trial at a prison for convicted offenders (a penitentiary for inmates sentenced to hard labour),235 and in Lewis v. Jamaica for post-arrest detention with convicted prisoners.236 In a number of cases the Committee has been faced with insufficient information to make an Article 10(2)(a) decision. The failure to segregate unconvicted from convicted individuals was not sufficiently clear in Portorreal v. Dominican Republic when the most that could be established was that the author was rounded up with other political activists, initially placed in a secret service cell with approximately fifty others, and later separated from his cohort and transferred to another cell with 125 individuals accused of common crimes.237 In Iskiyaev v. Uzbekistan the Committee’s task, in assessing the allegation that during pretrial detention the author spent more than a month while unconvicted in a cell with inmates categorised as particularly dangerous, was hampered because he did not reply to the State’s contention that no procedural violations occurred and that he never raised this in the domestic proceedings.238 When the State is uncooperative, and does not respond to allegations, the Committee is inclined to accept the author’s version of events, as it did in Gorji-Dinka v. Cameroon when the author’s claim that he was kept in a cell with twenty murder convicts went unchallenged by the State.239 In two decisions the Committee encountered Australia’s reservation to Article 10(2)(a) (that ‘the principle of segregation is an objective to be achieved progressively’), and it concluded that this was not incompatible with the object and 233 GC 21 [9]. 234 Pinkney v. Canada, CCPR/C/OP/1 at 95 (1985), 29 October 1981 [30]. For the drafting history, which also supports strict segregation, see Nowak, CCPR Commentary, pp. 250 1. 235 Wolf v. Panama, CCPR/C/44/D/289/1988 at 80 (1992), 26 March 1992 [6.8] (the author was subsequently convicted). 236 Lewis v. Jamaica, CCPR/C/60/D/708/1996, 17 July 1997 [2.4], [8.5]. For lack of separation between pre trial detainees and convicted offenders, see Burkina Faso CCPR/C/BFA/CO/1 (2016) 33; Jamaica CCPR/C/JAM/CO/4 (2016) 31; Congo CCPR/C/COD/CO/4 (2017) 33; Honduras CCPR/C/HND/CO/2 (2017) 30; Madagascar CCPR/C/MDG/CO/4 (2017) 37; Guinea CCPR/C/GIN/CO/3 (2018) 35. 237 Portorreal v. Dominican Republic, Communication No. 188/1984, Supp. No. 40 (A/43/40) at 207 (1988), 5 November 1987 [2.1], [2.2], [10.2]. 238 Iskiyaev v. Uzbekistan CCPR/C/95/D/1418/2005, 20 March 2009 [9.4]. 239 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.3]; similarly Morrison v. Jamaica, CCPR/C/64/D/663/1995, 3 November 1998 [8.3]; Wilson v. Philippines, CCPR/C/ 79/D/868/1999, 30 October 2003 [7.3], [8].

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purpose of the Covenant, even if it may be considered unfortunate that twenty years after entering the reservation Australia had not achieved its objective to comply fully with Article 10(2)(a).240 In Concluding Observations the Committee also raised its concern that obligations under Article 10(2)(a) do not appear to be met by numerous countries.241

A RT I C L E 1 0 ( 2 ) ( b ) : S E G R E G ATI O N O F ‘A C C U S E D J U V E N I L E S ’ F R O M A D ULTS ( I N P R E - T R I AL D E T E N T I O N ) A ND S P E E D Y AP P E AR A N C E F O R ADJUDICATION Article 10(2)(b) requires ‘accused’ juveniles to be separated from adults and has greatest application during pre-trial detention. Juveniles may be taken to be those under the age of 18, at least in matters relating to criminal justice, consistent with prohibition against the death penalty in Article 6(5) for those under that age.242 An Article 10(2)(b) finding was made in Koreba v. Belarus because a 17-year-old was held in pre-trial remand for eleven days with adults, some of whom had committed serious crimes.243 (It may also have been open to the Committee to make an Article 10(1) finding in relation to the allegation that the car in which he was transported to that place of detention stopped next to a bar, while an officer went inside, leaving the victim handcuffed to the car door.) Accused juveniles are to be brought as speedily as possible for adjudication to reduce the time they spend in custody on remand. It is clearly more demanding than Article 9(3), which entitles anyone arrested or detained on a criminal charge to trial or release ‘within a reasonable time’, and should also be read in the context of right to be tried ‘without undue delay’ in Article 14(3)(c). The duration of pretrial detention is a constant concern of the Committee, as discussed in the chapter on Article 9,244 which is far more acute in the case of juveniles. The term ‘adjudication’ in Article 10(2)(b) is capable of embracing the wider range of procedures within the juvenile criminal justice system than the term ‘trial’ in Articles 9 and 14. Under Article 14 juveniles enjoy at least the same guarantees and protection as those accorded to adults.245 An Article 10(2)(b) finding resulted in Berezhnoy v. Russian Federation because the case of a juvenile in a pre-trial 240 Cabal and Bertran v. Australia, CCPR/C/78/D/1020/2001, 7 August 2003 [7.4]; Minogue v. Australia, CCPR/C/82/D/954/2000, 2 November 2004 [6.5]. 241 E.g., Albania CCPR/CO/82/ALB (2004) 16; Thailand CCPR/CO/84/THA (2005) 16; Ireland CCPR/C/IRL/CO/3 (2008) 15; Rwanda CCPR/C/RWA/CO/3 (2009) 15; Jamaica CCPR/C/ JAM/CO/3 (2011) 23; Ireland CCPR/C/IRL/CO/4 (2014) 15. 242 GC 21 [13]. 243 Koreba v. Belarus, CCPR/C/100/D/1390/2005, 25 October 2010 [2.4] [2.5], [7.4]. 244 Chapter on Article 9: Liberty and Security, section ‘Release or Custody Pending Trial’. 245 General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 [42].

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detention case was referred to court almost one year before the final adjudication.246 By referring to ‘accused juvenile persons’ Article 10(2)(b) does not apply to non-criminal forms of detention, such as during immigration processing, even though separation from adults in all forms of detention is a matter of pressing concern, as already noted.247

A RT I CL E 1 0 ( 3 ) : SE G R E G AT I O N O F J U V E N I L E O F F E N D E R S F R O M A D U LT S , TR E ATM E N T A P P R O P R I ATE TO TH E I R A G E A N D S TATU S , A N D T H E PU R P O S E O F PE N A L S Y S T E M Article 10(3) possesses three discrete components: the segregation of juvenile ‘offenders’ from adults; the treatment of juvenile offenders appropriate to their age and legal status; and, for all prisoners, the sentencing aims of reformation and social rehabilitation. Segregation of Juvenile ‘Offenders’ from Adults It is incumbent upon the State, where an allegation is made under Article 10(2)(b), to verify whether the prisoner in question is, or has at any relevant stage, been a minor, as the Committee stressed in Thomas v. Jamaica when a 15-year-old was kept among adult prisoners after being sentenced.248 In the reporting process the Committee frequently expresses concern for the non-segregation of adults and minors, and although in some cases it is apparent to which of Article 10(2)(b) and 10(3) its concerns are directed,249 much of the time the Committee does not clearly differentiate the two.250

246 247 248 249

Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016 [9.4]. See sections ‘Immigration Detention’ and ‘Vulnerable Detainees and Prisoners’, above. Thomas v. Jamaica, CCPR/C/65/D/800/1998, 26 May 1999 [6.5]. E.g., Belgium CCPR/C/79/Add.99 (1998) 21 (the practice of not separating minors from adult offenders in jail is not only incompatible with Art. 10(3) but constitutes a violation of Art. 24); Philippines CCPR CCPR/CO/79/PHL (2003) 17 (ill treatment and abuse, including sexual abuse, in situations of detention and children being detained together with adults); Benin CCPR/CO/82/BEN (2004) 17 (concern at the extreme overcrowding of prisons and at the fact that juveniles were not always held separately from adults); Sierra Leone CCPR/C/SLE/ CO/1 (2014) 21 (concern at the lack of separation between juvenile and adult offenders). 250 E.g., Thailand CCPR/CO/84/THA (2005) 16 (special protection should be provided for juve niles, including their compulsory segregation from adults); Rwanda CCPR/C/RWA/CO/3 (2009) 15 (concern that there appeared to be no guarantee that detained children will be held separately from adults); Jamaica CCPR/C/JAM/CO/3 (2011) 23 (concern at the failure to ensure that minors detained are held separately from adults); Angola CCPR/C/AGO/CO/1 (2013) 19 (in some prisons, separation of minors from adults was not always guaranteed); Mozambique CCPR/C/MOZ/CO/1 (2013) 14 (concern that the separation of minors from adults was not always guaranteed); Madagascar CCPR/C/MDG/CO/4 (2017) 37 (lack of separation

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Treatment of Juvenile Offenders In addition to the general protection guaranteed to every child under Article 24, and the juvenile justice provisions of Article 14(4), juvenile offenders are to be accorded treatment appropriate to their age and legal status under Article 10(3). For example, shorter working hours and greater contact with relatives should aim at furthering their reformation and rehabilitation.251 In Brough v. Australia the Committee answered, by reference to Article 10(3) read together with Article 24(1), the State’s argument that the use of a safe cell for an Aboriginal inmate given to self-harm was justified as a means of providing ‘a safe, less stressful and more supervised environment where an inmate may be counselled, observed and assessed for appropriate placement or treatment’. The hardship of the imprisonment of a juvenile Aboriginal suffering from a mild mental disability, with significant impairments of his adaptive behaviour, his communication skills and his cognitive functioning, violated Articles 10(1), 10(3) and 24 by extended confinement to an isolated cell, without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket.252 The Committee has expressed particular concern at the lack of long-term rehabilitation programmes for children, and educational facilities for convicted children,253 and at the possibility of life imprisonment for juveniles,254 which is discussed further in the chapter on Article 7.255 Reformation and Social Rehabilitation of All Prisoners Article 10(2)(c) requires as an essential aim of the penitentiary system (for juveniles and adults) the reformation and social rehabilitation of prisoners. It obviously need not be the only aim, but the system should not only be retributory.256 Detention in solitary confinement for a period of thirten years because of the author’s presumed political opinion in Kang v. Korea violated Article 10(1) and (3). It was a measure of such gravity and such fundamental

251 252 253 254 255 256

between adults and minors); Mongolia CCPR/C/MNG/CO/6 (2017) 33 (children deprived of their liberty were not always separated from adults); Swaziland CCPR/C/SWZ/CO/1 (2017) 46 (detention of adults and children together on the same premises); Switzerland CCPR/C/CHE/ CO/4 (2017) 36 (in regional institutions, juveniles were held with adults and not adequately supervised); Guinea CCPR/C/GIN/CO/3 (2018) 35 (lack of separation between adults and minors). GC 21 [13]. Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.3] [9.4]. Albania CCPR/C/ALB/CO/2 (2013) 15. USA CCPR/C/USA/CO/3/Rev.1 (2006) 34; Sierra Leone CCPR/C/SLE/CO/1 (2014) 21. Chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Life Sentences’. GC 21 [10]; cf. Germany CCPR/C/DEU/CO/6 (2012) 14 (recommendation, in the context of criticisms of preventive detention, to create conditions for such detainees only aimed at rehabilitation and reintegration into society).

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impact on the individual that it required the most serious and detailed justification.257 Measures towards reformation and social rehabilitation should include teaching, education, vocational guidance and training.258 Even if those measures are successfully pursued by prisoners, the mere fact that their prison sentence continues is unlikely to raise issues under this aspect of Article 10(3).259 Blessington and Elliot v. Australia demonstrates how difficult it is to justify the compatibility of life sentences for juveniles with aims of reformation and social rehabilitation, even if penal policies are aimed at adequate punishment, community protection and deterrence.260 The Committee tends to avoid finding a violation of Article 10(3) based on the aim of reformation and social rehabilitation if the allegations may be subsumed in other less contentious findings.261 For example, in Cariboni v. Uruguay it found Articles 7 and 10(1) were violated without specifically addressing the complaint that the purpose of detention in the notorious Libertad Prison was not to rehabilitate prisoners but to break them physically and psychologically, and that the goal was to depersonalise prisoners, to keep them in uncertainty, to deprive them of routine and an orderly schedule of activities, and to intimidate them by unannounced raids on their cells.262 There may be a certain reluctance also where the claim does not easily lend itself to determination. In Neville Lewis v. Jamaica the Committee left unanswered the author’s Article 10(3) assertion that the Jamaican penitentiary system (involving prison overcrowding and imposition of the death penalty) did not in practice aim to achieve the social rehabilitation and reformation of prisoners.263 Similarly, in Teesdale v. Trinidad and Tobago it did not venture into whether a death sentence commuted to seventy-five

257 Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.3]. 258 GC 21 [11]. 259 In broader connection, see Jensen v. Australia, CCPR/C/71/D/762/1997, 22 March 2001 [3.5], [6.4] (inadmissible claim that further imprisonment, after the author was ready to be rehabili tated and reintegrated in society, for offences that happened ten years ago, was detrimental to his rehabilitation). 260 Blessington and Elliot v. Australia, CCPR/C/112/D/1968/2010, 22 October 2014 [7.7], [7.8]. See also Costa Rica CCPR/C/CRI/CO/6 (2016) 39 (concern at the lack of effective measures for the social reintegration of children in conflict with the law); and for a US perspective in the literature, see Vincent G. Levy, ‘Enforcing International Norms in the United States after Roper v. Simmons: the Case of Juvenile Offenders Sentenced to Life without Parole’, (2006) 45 Colum. J. Transnat’l L., p. 262. On life sentences, see chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Life Sentences’. 261 Quliyev v. Azerbaijan, CCPR/C/112/D/1972/2010, 16 October 2014 [9.2] (the Committee did not examine the Art. 10(3) claim in the light of a finding under Art. 10(1) concerning the same conditions of detention). 262 Cariboni v. Uruguay, Communication No. 159/1983, Supp. No. 40 (A/43/40) at 184 (1988), 27 October 1987 [2.3], [10]. 263 Lewis v. Jamaica, CCPR/C/60/D/708/1996, 17 July 1997 [3.7], [8.5] (though the Committee did find violations of Arts 9(3), 10(1) and 10(2)(a) in other matters).

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years imprisonment was in violation of Article 13(3), although one Committee member considered it was pertinent.264 In its Concluding Observations the Committee has urged the development of rehabilitation programmes both during imprisonment and after release. It showed particular concern at prolonged confinement with limited out-of-cell recreation, which could not be reconciled with the requirements of Article 10(3).265 Exoffenders must be reintegrated into society.266 The Committee has also avoided addressing the question of excessive prison sentences awaiting authors on extradition to other countries, since its focus in the relevant cases was relatively narrow.267

I M P L E M E N TAT I O N There is much coincidence between the obligations of implementation under Articles 7 and 10, and reference should also be made to the Implementation section in the chapter on Article 7.268 Among the most common recommendations in Concluding Observations are to: improve conditions of detention in accordance with the Mandela Rules; address overcrowding, including by non-custodial alternatives; investigate promptly, thoroughly and impartially all reports of illtreatment, and to ensure that the responsible parties are brought to justice and punished. The need for investigation in that manner stems from the fact that violations of Article 10(1) are extremely serious,269 and is related to the obligation to ensure an effective remedy. A failure may therefore give rise to a violation of Article 2(3), read in conjunction with Article 10(1).270 Judicial remedies are especially

264 Teesdale v. Trinidad and Tobago, CPR/C/74/D/677/1996, 1 April 2002, Individual Concurring Opinion of Mr Rajsoomer Lallah. 265 USA CCPR/C/USA/CO/3/Rev.1 (2006) 32. 266 Belgium CCPR/C/79/Add.99 (1998) 19. See also Brazil CCPR/C/79/Add.66 (1996) 25 (steps must be taken to ensure that effective programmes are in place for the social rehabilitation and reformation of prison inmates); New Zealand CCPR/CO/75/NZL (2002) 13 (in the context of prison privatisation there was concern that the reformation and social rehabilitation of prisoners continue). 267 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Obligations on Expulsion or Extradition’. 268 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Implementation’. 269 Blanco v. Nicaragua, CCPR/C/51/D/328/1988, 20 July 1994 [10.6]. See also Khadzhiev v. Turkmenistan, CCPR/C/113/D/2079/2011, 1 April 2015 [8.4]; Kashtanova and Slukina v. Uzbekistan, CCPR/C/118/D/2106/2011, 28 October 2016 [8.2]. 270 Giri et al. v. Nepal, CCPR/C/101/D/1761/2008, 24 March 2011 [7.10]. See also Leopoldo Buffo Carballal v. Uruguay, CCPR/C/OP/1 at 63 (1984), 27 March 1981 [10] (the allegations should have been investigated in accordance with its laws and its obligations under the Covenant and the Optional Protocol). See also chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Duty to Investigate’.

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important. The Committee has been particularly concerned if detainees or prisoners are barred from having allegations of ill-treatment or poor conditions of detention reviewed by a court.271 The United Nations Basic Principles and Guidelines on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court strengthen the right of anyone deprived of liberty to challenge their conditions of detention.272 Related is the Committee recommendation sometimes made for an effective complaints system against conditions of detention, allowing complaints to be lodged confidentially.273 Aspects of implementation which are preventative include: establishing independent oversight mechanisms for monitoring and inspecting places of deprivation of liberty and investigating abuses;274 training for justice officials and prison staff;275 and ensuring effective State control of facilities, which may otherwise be compromised, for example, by off-shore processing of immigrants or relying on another State’s correctional system.276 In the case of privatisation of prison functions the State is to ensure that its Covenant obligations continue to be met and that it remains accountable for any failure277 (a point echoed by the International Law Commission).278 Certain positive measures are required in the case of children, where Articles 10(3) and 24 combine,279 and prisoners with disabilities.280 271 E.g., USA CCPR/C/USA/CO/3/Rev.1 (2006) 15 (section 1005(e) of the Detainee Treatment Act barred detainees in Guantanamo Bay from seeking review); Togo CCPR/C/TGO/CO/4 (2011) 18 (source of deep concern that there was no mechanism for detainees to go before the judge with complaints about their conditions of detention). 272 Report submitted by the Working Group on Arbitrary Detention, A/HRC/30/37, 6 July 2015, Guideline 10. 273 E.g., Maldives CCPR/C/MDV/CO/1 (2012) 19; Nepal CCPR/C/NPL/CO/2 (2014) 12. 274 E.g., Sri Lanka CCPR CCPR/CO/79/LKA (2003) 15; Azerbaijan CCPR/C/AZE/CO/4 (2016) 18, 19; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 31; Turkmenistan CCPR/C/TKM/CO/2 (2017) 22. 275 E.g., Congo CCPR/C/COD/CO/4 (2017) 34. 276 Australia CCPR/C/AUS/CO/6 (2017) 35; Liechtenstein CCPR/C/LIE/CO/2 (2017) 23. For a detailed analysis of implementation and other shortcomings in Australia’s regulatory system (selected jurisdictions), and suggested remedial measures, see Bronwyn Naylor, Julie Debeljak and Anita McKay, ‘A Strategic Framework for Implementing Human Rights in Closed Environments’, (2015) 41(1) Mon. U. L. Rev., p. 218. 277 E.g., New Zealand CCPR/CO/75/NZL (2002) 13 (management of one prison and prison escort services were contracted to a private company, resulting in concern about accountability since there did not appear to be any effective mechanism of day to day monitoring); and for commentary on this, see Rebecca Kennedy, ‘Much Obliged: An Assessment of Governmental Accountability for Prisoners’ Rights in New Zealand’s Private Prisons’, (2016) 22 Auckland U. L.R., p. 207. 278 International Law Commission, Report of the International Law Commission on the Work of Its Fifty Third Session (23 April 1 June and 2 July 10 August 2001), A/56/10, (2001) II Yearbook of the International Law Commission, p. 42 (the case of private prison guards is quoted as an example (at p. 43)). See also Manfred Nowak, Human Rights or Global Capitalism: the Limits of Privatization (University of Pennsylvania Press, 2017). 279 Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.3] [9.4]. 280 Hamilton v. Jamaica, CCPR/C/66/D/616/1995, 23 July 1999 [3.1], [8.2]; Suleimenov v. Kazakhstan, CCPR/C/119/D/2146/2012, 21 March 2017 [8.7].

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C O N C L US I O N Since Article 10(1) does not contain limitation provisions or similar qualifications the primary question in determining violation is whether the appropriate degree of severity of ill-treatment has been reached. For this reason this chapter undertook a detailed assessment of acts regularly falling within its scope. Much of the discussion was also directed at discerning patterns of Committee findings in the area of overlap between Articles 7 and 10(1). A clear and consistent picture does not emerge though a few general observations may be made. Treatment of detainees and prisoners in violation of Article 10(1) takes manifold forms inflicted in multiple combinations. The harm inflicted does not conform neatly to any taxonomy, or even a simple attribution between only Article 7 or Article 10(1). The situation is invariably compound and complex, involving the dynamic interaction of events. Against that typical background Committee findings aim to vindicate the cumulative effect of multiple acts, or particular aggravating factors. In some cases involving conduct qualifying as both torture under Article 7 and ill-treatment under Article 10(1), the Committee has been content to rely only on a stricter Article 7 finding without a parallel one under Article 10(1), while in others it has made independent rulings of violation of both. Similarly in cases involving cruel and inhuman treatment. In claims of degrading treatment, of which there are relatively few, the Committee has shown a preference for Article 7, without reference to Article 10(1) for the same conduct. Enforced disappearance, incommunicado detention and solitary confinement have a number of features in common but it is important to maintain the distinctiveness of each. Enforced disappearance consistently receives Article 7 attention. Incommunicado detention occupies boundary territory between Articles 7 and 10(1); it is often treated as a violation of Article 10(1), although its proximity to Article 7 is evident in findings under Article 7 in instances of greater severity (though these are less common), and in the fact that measures for preventing incommunicado detention were mentioned in the Committee’s General Comment on Article 7. (The General Comments on both Articles were adopted within a month of each other.) Because of the vulnerability of those held in incommunicado detention the Committee requires little proof to support additional Article 7 claims (usually of torture). Solitary confinement would appear to be primarily an Article 10(1) issue. Although individual circumstances may aggravate conditions of solitary confinement, such as the individual’s disability, it still generally remains within the parameters of Article 10(1), and Article 10(3) in the case of juvenile offenders. Generally only if solitary confinement is indefinite or prolonged will it transgress the Article 7 prohibition. The Committee has made Article 7 findings in a number of cases concerning immigration detention, and as a result has not considered Article 10(1), including when indefinite immigration detention was itself the source of psychiatric illness

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and the authorities failed to take the steps to ameliorate its deterioration; and when immigration detention combined with other factors to inflict serious psychological harm.281 Otherwise Article 10(1) would have general application to immigration detention. Particular privations have resulted in findings under Article 10(1), including denial of: access to a lawyer; medical treatment (with the likelihood of elevation to or combination with an Article 7 finding if prolonged, or the condition requiring treatment was the result of poor conditions of detention or ill-treatment); adequate food or water (typically in contravention of Article 10(1) though sometimes Article 7 when combined with other serious ill-treatment); the enjoyment of particular Covenant rights such as religious manifestation (in violation of Articles 7 and 18 when a prisoner was not allowed to wear a beard and it was forcibly removed); the right to vote (in violation of Article 25 if unreasonably prohibitive); on correspondence (in violation of Articles 10(1) and 17) with further ramifications affecting the ability to maintain contact with the outside world, impeding access to justice, and lack of accountability for poor prison conditions. The needs of particularly vulnerable inmates are addressed in part by segregating men and women (Article 3), adults and juveniles (Article 10(2)), and convicted and unconvinced individuals (Article 10(3)), but more active intervention is needed to protect against exposure to dangers from cellmates. Adverse environmental aspects of detention include overcrowding and insanitary conditions (in violation of Article 10, and where it generates particularly severe risks Article 6); cramped cells (in combination with other factors frequently in violation of both Articles 7 and 10(1)); unrelieved confinement, lack of natural light or ventilation, exposure to temperature extremes, and the lack of essential amenities (which are issues generally confined to Article 10(1)). The requirement for the speedy appearance for adjudication of accused juveniles in Article 10(2)(b) is intended to provide greater protection than is already available under Articles 9(3) and 14(3)(c), and resonates with the constant concern of the Committee to minimise time spent in pre-trial detention. Appropriate treatment of juvenile offenders in view of their age and legal status under Article 10(3) coincides to a degree with the positive measures required for minors under Article 24. It is not surprising that the Committee underscored the State’s obligation to verify whether a prisoner is, or has at any relevant stage, been a minor, since the issue in practice risks going unheeded. The sentencing aims of reformation and social rehabilitation for all prisoners has been capable of addressing certain aspects of the life sentencing of both adults and juveniles but is not an area of well-developed Committee jurisprudence. 281 C. v. Australia, CCPR/C/76/D/900/1999, 28 October 2002 [8.4]; F.K.A.G. v. Australia, CCPR/ C/108/D/2094/2011, 26 July 2013 [9.8]; M.M.M. et al. v. Australia, CCPR/C/108/D/2136/2012, 25 July 2013 [10.7].

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Article 11: Imprisonment for Inability to Fulfil a Contractual Obligation

INTRODUCTION THE SPHERE OF OPERATION OF ARTICLE 11 IMPLEMENTATION CONCLUSION

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Covenant Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Comparable Provisions in Other International Instruments European Convention: Protocol No. 4, Article 1. American Convention on Human Rights: Article 7(7). African Charter on Human and Peoples’ Rights: no direct counterpart.

INTRODUCTION Article 11 is closely related to Article 8(2), which requires proscription against being held in ‘servitude’. That term comprises two practices of relevance: debt bondage, typically associated with feudal systems of slave labour, but also found in various contemporary forms of exploitation; and bonded labour, which still survives within the traditional practices of certain countries.1 Among the differences between Articles 8 and 11 is that Article 11 precludes imprisonment as a consequence of inability to fulfil a contractual obligation, whereas servitude within Article 8 typically concerns exploitation for commercial gain devoid of any contractual background. Article 9 supports Article 11 by being directed against arbitrary detention and, among other safeguards, at enabling the lawfulness of any detention to be challenged before judicial authorities. Development of Article 11 In the drafting of Article 11 by the Commission on Human Rights it was agreed that it should not cover crimes committed in consequence of non-fulfilment of 1 See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour, sections ‘Article 8(2): Servitude’, ‘Debt Bondage and Bonded Labour’.

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obligations of public interest, imposed by statute or a court, such as maintenance orders, alimony and damages awards. With reference to contractual obligations, there were various opinions. A proposal to restrict the prohibition of ‘inability to pay a contractual debt’ was rejected as too narrow, since it was agreed that the Article should prevent imprisonment for failure in contractual obligations extending beyond non-payment of contractual debts, to failure in performance of services or the delivery of goods under a contract. As for contractual obligations undertaken by the individual towards the State, there was a view that these were sometimes so vital in nature (such as the delivery of essential foodstuffs for the population) that inability to fulfil them should justify imprisonment. Reference was also made to statutes which provided for the arrest of those with outstanding debts to prevent them leaving the country indefinitely. This is addressed in part by Article 12. Restrictions on the right in Article 12(2) to leave a country may be justified under Article 12(3) if there is an outstanding arrest warrant or other judicial proceedings against the individual,2 but not for non-fulfilment of contractual obligations where this would also violate Article 11. A proposal to add the words ‘unless he is guilty of fraud’ at the end of Article 11 was rejected. The words ‘merely on the grounds of inability’, on the other hand, would make it sufficiently clear that all cases of fraud were excluded, and it also meant that the protection of Article 11 did not apply where a debtor had the financial means to fulfil a contractual obligation but refused to do so. The words ‘or held in servitude’, which appeared in one draft, were deleted in view of the fact that Article 8 contained an unqualified prohibition of servitude.3 Chapter Outline This main part of this chapter concerns the Committee’s Article 11 jurisprudence on the applicability of Article 11 in a number of (unsuccessful) claims concerning court-ordered maintenance payments and criminal sentencing for crimes involving parallel civil liability. The section on implementation offers visibility on a number of instances of potential violation, and draws principally on Concluding Observations.

T H E S P H E R E O F O P E R AT IO N O F A RT I C L E 11 Family Law Obligations Calvet Ràfols v. Spain bears out the distinction between the failure to meet a contractual obligation, covered by Article 11, and a legal obligation to pay 2 See chapter on Article 12: Freedom of Movement of the Person, section ‘Article 12(2): Freedom to Leave any Country’. 3 A/2929 (1955), pp. 37 8, [45] [49].

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maintenance, which is not, where it is derived from the law. The contrast was clearest in the State’s submission that the author’s maintenance obligation (from which he defaulted and was sentenced to eight weekends’ imprisonment for the offence of abandonment of the family) did not derive from the court-approved agreement dissolving their marriage, but from the legal obligation of parents to support their children, and spouses to support each other during marriage and following its dissolution if one partner is left without means.4 Independent Operation of the Criminal Law The decision in Maksim Gavrilin v. Belarus turned on the operation of the criminal law independently of related civil law debts. The author was found guilty of fraud and sentenced to seven years’ imprisonment with a confiscation order, for posing as a real estate agent and taking deposits for future property transactions. He lost his appeal to reduce the sentence, which was longer than it might otherwise have been because he failed to repay the deposits as a result of his lack of financial capacity to do so. His Article 11 claim was inadmissible because when a person commits fraud, negligent or fraudulent bankruptcy, etc., they may be punished with imprisonment even when they are no longer able to pay the related debts which arise as a matter of civil law.5 Article 11 was raised in a similar way in Foumbi v. Cameroon. The author faced criminal prosecution for fraud, against a factual background steeped in contractual disputes. These stemmed from various partnership agreements and loan contracts relating to a money transfer platform which he developed. Various criminal complaints of fraud, aggravated fraud and falsification of private business documents followed, and the author was detained. The Committee found the claim inadmissible, recalling Gavrilin v. Belarus, because the charges did not relate to breach of contract but fell under the scope of criminal law.6 Inability to Make Restitution in Criminal Matters The restitutional element raised in Gavrilin was also present in De León Castro v. Spain. The author was a lawyer who acted for a housing association in a lawsuit against building companies and architects concerning construction defects. He was sentenced for a fraud concerning the amount paid to him by way of legal fees. His Article 9 claim was that his imprisonment involving denial of access to prison

4 Ràfols v. Spain, CCPR/C/84/D/1333/2004, 25 July 2005 [4.1], [6.4] (claim inadmissible for incompatibility ratione materiae with Art. 11). See also Martínez v. Spain, CCPR/C/98/D/1624/ 2007, 19 March 2010 [4.3]. 5 Gavrilin v. Belarus, CCPR/C/89/D/1342/2005, 28 March 2007 [3.6], [7.3]. 6 Foumbi v. Cameroon, CCPR/C/112/D/2325/2013, 28 October 2014 [8.7]. See also H.S. v. Australia, CCPR/C/113/D/2015/2010, 30 March 2015 [8.3]; Zogo v. Cameroon, CCPR/C/ 121/D/2764/2016, 8 November 2017 [6.11].

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privileges, including parole, was unlawful because of a retrospective change to the parole laws. Parole was not available unless a defendant satisfied the civil liabilities arising from an offence. He could not discharge these because he was insolvent. Ms Ruth Wedgwood dissented from the decision that Article 9 was not violated, and did not want to give the impression that Article 11 had been overlooked. Her objection mainly concerned the retrospective increase in criminal penalties, but she pointed to the additional significance of Article 11 by saying that: the Committee’s disposition of this Communication should not be misread as showing any indifference to the more difficult issue of article 11 of the Covenant, which specifically forbids imprisonment ‘on the ground of inability to fulfil a contractual obligation’. Though the Committee has little jurisprudence on the issue, the measures used in criminal cases to coerce the payment of restitution may, at some future date, be worthy of examination in light of the language of that provision, at least in a case where the matter has been properly elucidated. Indeed, the State party’s own statute, which instructed parole authorities to take account of a bona fide declaration of insolvency, may have proceeded from the same concern.7

I M P L E M E N TAT I O N For a provision that seldom arises in individual petitions the Committee has raised Article 11 in the country review process with surprising frequency. It noted clear violation of Article 11 in Nepal in the persistence of imprisonment on the ground of inability to fulfil a contractual liability.8 It has raised with a number of countries the incompatibility of domestic laws and practices with Article 11.9 In the case of Tanzania, it urged a study on alternative means of enforcing judgment debts,10 and for Ireland it recommended implementation of its 7 Castro v. Spain, CCPR/C/95/D/1388/2005, March 2009, Dissenting Opinion of Ms Ruth Wedgewood. 8 Nepal CCPR/C/79/Add.42 (1994) 7. 9 E.g., Mauritius A/33/40 479, 518; Lebanon A/38/40 (1983) 349; Gambia A/39/40 (1984) 331, 351; Mauritius A/44/40 (1989) 515; St Vincent and the Grenadines A/45/40 (1990) 254, 271; Madagascar A/46/40 (1991) 544; Cyprus CCPR A/49/40 (1994) 319; Zambia CCPR/C/79/ Add.62 (1996) 26; Cyprus CCPR/C/79/Add.88 (1998) 13; Gabon CCPR/CO/70/GAB (2000) 15; Morocco CCPR/C/79/Add.113 (1999) 19; Uganda CCPR/CO/80/UGA (2004) 19; Greece CCPR/CO/83/GRC (2005) 13; Nicaragua CCPR/C/NIC/CO/3 (2008) 18; Chad CCPR/C/TCD/ CO/1 (2009) 25; Greece CCPR/C/GRC/CO/2 (2015) 35. See also Netherlands A/37/40 (1982) 104, 124 (an unduly complicated procedure seemingly incompatible with Art. 11); Sweden CCPR A/41/40 (1986) 121 (detention on remand of debtors, where there was a refusal to disclose all relevant information concerning one’s financial situation and assets); Morocco CCPR/C/ MAR/CO/6 (2016) 31 (committal of debtors who do not fulfil their contractual obligations if they had not provided a certificate of indigence or a document that certified that they were not liable to pay taxes); Liberia CCPR/C/LBR/CO/1 (2018) 30 (allegations of arbitrary arrests and detention, including for debt and minor offences). 10 Tanzania CCPR/C/79/Add.97 (1998) 21. See also Tanzania CCPR/C/TZA/CO/4 (2009) 20.

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recent legislation which provided a community service order as an alternative to imprisonment for failure to pay court-ordered fines or civil debt.11 It noted that in Barbados the guarantee against imprisonment for debt existed but did not seem to be fully effective,12 and that in Algeria, in spite of the case law of Algerian courts which found recourse to imprisonment under the Civil Code to be contrary to Article 11, the offending part of the Code had not been repealed.13 It welcomed the decision by Morocco’s Supreme Court concerning the primacy of Article 11 over domestic law and practice, and the directive that prosecutors were to refer back to the courts cases of all those serving sentences for inability to fulfil a contractual obligation.14 The gijzeling system in Indonesia, designed to prevent tax evasion and to recoup tax debts, became a matter of concern when it was misused by police officers, with the result that individuals were detained purely for failing to pay civil debts to their creditors.15 It was an Article 11 issue that women in Equatorial Guinea were imprisoned if they did not return their dowries on separating from their husbands.16 The Committee has questioned Grenada about references in its prisons legislation to ‘civil prisoners’,17 India about cases of ‘civil arrest’,18 and Ireland about ‘culpable neglect’ as grounds for imprisonment of debtors.19 It has raised the non-derogable status of Article 11, in particular where it is not clear that Article 11 cannot be derogated from during a state of emergency.20 The Committee also questioned the Congo about the reservation it entered (and wished to maintain) under Article 11, to allow imprisonment of debtors who made themselves insolvent in bad faith;21 and it welcomed the withdrawal of the UK’s Article 11 reservation on behalf of Jersey.22

C O N C L US I O N Article 11 guarantees freedom from imprisonment merely on the ground of inability to fulfil a contractual obligation. The relevant contractual obligation is not confined to payment of a debt. The protection of Article 11 does not apply where the debtor is able but unwilling to pay. 11 Ireland CCPR/C/IRL/CO/4 (2014) 16. 12 Barbados A/43/40 (1988) 579. 13 Algeria CCPR/C/DZA/CO/3 (2007) 6; cf. Rwanda A/43/40 (1988) 206 (international conven tions were integrated into domestic legislation, and provisions allowing for imprisonment for debt had been deleted from the Civil Code). 14 Morocco CCPR/CO/82/MAR (2004) 6. 15 Indonesia CCPR/C/IDN/CO/1 (2013) 22. 16 Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 8 (in addition to Arts 3, 23(4) and 26). 17 Grenada CCPR/C/GRD/CO/1 2009 19. 18 India A/39/40 (1984) 259. 19 Ireland CCPR A/48/40 (1993) 565. 20 E.g., Croatia CCPR/CO/71/HRV (2001) 9; Indonesia CCPR/C/IDN/CO/1 (2013) 9. 21 Congo A/42/40 (1987) 234; Congo CCPR/C/79/Add.118 (2000) 16. 22 UK CCPR/C/GBR/CO/7 (2015) 6.

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Imprisonment is in principle not excluded for non-fulfilment of a statutory obligation, obligations arising as a matter of law (including in such matters as maintenance), or where it results by operation of criminal law. One area for the development of clearer jurisprudence is the sentencing treatment of those who fail to make financial restitution for the victims of their crimes.

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Article 12: Freedom of Movement of the Person

INTRODUCTION ARTICLE 12(1): LIBERTY OF MOVEMENT AND FREEDOM TO CHOOSE RESIDENCE ARTICLE 12(2): FREEDOM TO LEAVE ANY COUNTRY ARTICLE 12(3): LIMITATIONS ARTICLE 12(4): THE RIGHT TO ENTER ONE’S OWN COUNTRY IMPLEMENTATION CONCLUSION

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Covenant Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. Comparable Provisions in Other International Instruments European Convention: Protocol No. 4, Article 2. American Convention on Human Rights: Article 22(1)–(4). African Charter on Human and Peoples’ Rights: Article 12(1)–(2).

INTRODUCTION Background With clear emphasis on the self-autonomy of the individual and in common with the freedoms of opinion and of expression, liberty of 325

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movement is ‘an indispensable condition for the free development of a person’.1 Article 12 principally differs from its regional counterparts in that it does not make express provision concerning the expulsion of a State’s own nationals, nor the mass expulsion of aliens (non-nationals). Article 13 though does specify the procedural guarantees that are to apply to an alien being expelled from a State. Article 12(1) addresses freedom of movement and freedom to choose where to reside within a country, while Article 12(2) and (4) are concerned, respectively, with the right to leave any country, and to enter one’s own country.2 Article 12 draws on and closely reflects the substance of Article 13 of the Universal Declaration. The principal difference lies in the limitation provisions. Those which qualify the rights in Article 12(1) and (2) are found in Article 12(3). The scope of limitation in Article 12(4) is defined by the prohibition against ‘arbitrary’ deprivation of the right to enter one’s own country. The Committee’s General Comment 27 on Article 12 provides detailed guidance on Article 12(3), which also informs comparable limitation provisions in Articles 18(3), 19(3), 21 and 22(2). It strongly influenced the limitation commentary of General Comment 34 (on Articles 19, 21 and 22) because of the marked similarity across all those provisions.3 The choice of limitation phraselogy in the drafting of Article 12(3), already established for Articles 18, 19, 21 and 22, was largely the result of the failure to develop a manageable list of situation-specific limitations to fulfill the initially preferred approach. Interaction between Article 12 and Other Covenant Provisions Article 9 partially overlaps with Article 12 by being concerned with arbitrary arrest or detention. Both may be violated by certain forms of detention, such as unlawful house arrest,4 but the two are qualitatively 1 General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/ Add.9 (GC 27) (GC 27) [1]; General Comment No. 34: Article 19 (Freedoms of Opinion and Expression), 12 September 2011, CCPR/C/GC/34 (GC 34) [2]. The broader implications of freedom of movement for the self autonomy of man and the achievements of migration are canvassed by Stig Jagerskiold, ‘The Freedom of Movement’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), pp. 166 7. 2 Maria Paz, ‘The Incomplete Right to Freedom of Movement’, (2017/18) 111 AJIL, p. 514, points out the limited scope of Art. 12 in the light of the reality that many refugees who may exit a State come up against a functional block to mobility: they have no place to stop moving; human rights law does not require that any other State let them enter and remain. 3 A number of key paragraphs from GC 27 were adopted GC 34, as identified in the discussion which follows. 4 E.g., Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.4]; Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009 [2.3], [7.5]. On the distinctions between liberty and freedom of movement in a brief survey of European Court and Committee material, see Maryam Gwangndi and Abubakar Garba, ‘The Right to Liberty under International Human Rights Law: An Analysis’, (2015) 37 J.L. Pol’y & Globalization, p. 213, at p. 214.

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distinct.5 Violations under Articles 9 and 12 may also be temporally distinct, as when a victim of unlawful imprisonment was released, only then to be confined to a village.6 Pre-trial detention under judicial supervision which is otherwise compliant with Article 9, and judicially imposed detention after a trial which observes Article 14 safeguards will not of themselves violate Article 9, or Article 10 if the constraint does not go beyond that merely resulting from the deprivation of liberty,7 as would measures within the exigencies of normal military service,8 and in each case would fall within the permissive scope of Article 12(3). However, restrictions on freedom of movement are often used to limit freedom of expression by journalists, those posing political opposition, human rights defenders or investigators, by means of travel bans or denial of exit visas for travel abroad. In addition to violating Articles 12(2), and 19,9 they also touch on Article 14 when restrictions on movement are imposed on lawyers and they are deterred or prevented from engaging in their professional activities.10 There is potential for concurrent violation of Articles 3, 12, 18 and 26 in the criminal prohibition (e.g., in France) on wearing the full-face veil when required by religious duty, to the extent that it compromises the exercise of freedom of religion and freedom of movement in public, although two recent communications did not address Article 12 because the Committee found violations of the more immediately applicable Articles 18 and 26.11 Conversely, in the reporting process the Committee has addressed the official enforcement of a dress code for women in the Sudan in connection with Article 12 (and Article 9, in view of the consequences for the women concerned).12 5 See, e.g., the allocation of findings under Arts 9 and 12 in Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176, 29 July 1981 [11.8]; Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 8 July 1994 [6.5], [6.6]. 6 Mpaka Nsusu v. Zaire, CCPR/C/27/D/157/1983, 26 March 1986 [10] (violation of Art. 12(1) because the author was banished to his village of origin for an indefinite period on release from prison). 7 CCPR General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 10 April 1992, Adopted at the Forty fourth Session of the Human Rights Committee [3]. 8 Vuolanne v. Finland, CCPR/C/35/D/265/1987, 7 April 1989 [9.4] (there was no Art. 12 claim). See also Turkey CCPR/C/TUR/CO/1 (2012) 23 (conscientious objectors deprived of some of their civil and political rights such as freedom of movement (Arts 12, 18)). 9 GC 34 [45]; Morocco CCPR/CO/82/MAR (2004) 18; Uzbekistan CCPR/CO/83/UZB (2005) 19; Uzbekistan CCPR/C/UZB/CO/4 (2015) 20; Turkmenistan CCPR/C/TKM/CO/2 (2017) 28; Belarus CCPR/C/BLR/CO/5 (2018) 49. 10 Azerbaijan CCPR/C/AZE/CO/4 (2016) 30; Bahrain CCPR/C/BHR/CO/1 (2018) 49. 11 Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [3.12], [8.15] [8.17]; Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [5.11], [7.15] [7.17]. 12 Sudan CCPR/C/79/Add.85 (1997) 22 (concern at official enforcement of strict dress require ments for women in public places, under the guise of public order and morality, and at inhuman punishment imposed for breaches of such requirements (Arts 3, 9 and 12)). For suggested doctrinal lessons concerning the universality of human rights norms, including analogous requirements, see Addo, ‘Practice of United Nations and Human Rights Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights’, p. 601, at p. 634.

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Articles 12 and 18 in combination have also been relevant to restrictions on freedom of movement of Falun Gong practitioners,13 and access to places of worship in Israel by non-Jews.14 The cultural norm in some countries by which the consent of a male relative (in some cases the husband) is required for a woman to leave the country is incompatible with Articles 3 and 12 (if not also Articles 2 and 26, and possibly Article 23).15 In some cultures a similar requirement applies to a change of residence, or even to wives leaving their home.16 The discriminatory restriction of Article 12 rights may also take the form of disadvantaging low income families in their choice of residence,17 cross-border movement restrictions based on ethnic profiling,18 and, at its most stark, placing same-sex attracted individuals on the list of prohibited persons for the purposes of immigration.19 Minorities are frequently subjected to Article 12 interference by forced eviction, expulsion or relocation, including indigenous communities who depend on the land for their economic livelihood and cultural practices.20 The forced eviction or demolition of dwellings of minorities may result in the coincidence of Articles 7 (cruel and inhuman treatment),21 12(1) (choice of 13 HK SAR CCPR/C/CHN HKG/CO/3 (2013) 17 (Falun Gong practitioners subject to particular restrictions on their freedom of movement (Arts 12, 18 and 19)). 14 Israel CCPR/C/ISR/CO/3 (2010) 20 (concern at frequent disproportionate restrictions on access to places of worship for non Jews (Arts 12, 18 and 26)). 15 GC 27 [6]; Lebanon CCPR/C/79/Add.78 (1997) 18 (laws which restrict the right to leave the country for spouses in the absence of the consent of their husband were incompatible with Arts 3 and 23); Sudan CCPR/C/79/Add.85 1997 14 (concern that immigration officers may arbitrarily require women to show that a male relative consents to their leaving the country). 16 Rwanda A/43/40 (1988) 227 (Rwanda explained that the law requiring the husband’s consent to the change of residence of his spouse related to prolonged absence and was not designed to prevent any normal movement); Yemen CCPR/CO/75/YEM (2002) 8 (concern that married women may not, at least by law, leave their homes without the authorisation of their husbands (Arts 3, 12 and 26)). 17 Netherlands CCPR/C/NLD/CO/4 (2009) 18 (allocation of housing in certain areas was made subject to additional income qualifications, and there was deliberate housing of low income persons and families in peripheral and central municipalities (Arts 2, 12(1), 17 and 26)). 18 Macedonia CCPR/C/MKD/CO/3 (2015) 16 (allegations of ethnic profiling, particularly of Roma, limiting freedom of movement across borders); Norway CCPR/C/NOR/CO/7 (2018) 10 (police power to stop assumed foreign nationals, thereby subjecting those with an immigrant background to ethnic profiling (Arts 2, 12, 17 and 26). 19 Belize CCPR/C/BLZ/CO/1 (2013) 13 (homosexuals placed on the list of prohibited persons for purposes of immigration). 20 E.g., Nicaragua A/38/40 (1983) 232, 248 (justification sought for the transfer and relocation of 8,500 Miskito Indians, during a state of emergency); Botswana CCPR/C/BWA/CO/1 (2008) 23 (for some relocated from the Central Kalahari Game Reserve their return was conditional on providing identity documents (Arts 12 and 27)); Kenya CCPR/C/KEN/CO/3 (2012) 24 (reports of forced evictions, interference and dispossession from ancestral land of minority communities, e.g., Ogiek and Endorois who depend on it for economic livelihood and to practice their cultures (Arts 12, 17, 26 and 27)); Bangladesh CCPR/C/BGD/CO/1 (2017) 31 (intended relocation of over 30,000 Rohingya refugees to the island of Thengar Char, prone to flooding and lacking the infrastructure necessary for respect of basic human rights). 21 Aouali et al. v. Algeria, CCPR/C/112/D/2132/2012, 18 October 2013, [7.7] [7.8].

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residence),22 17 (protection against interference with the home),23 26 (nondiscrimination) and 27 (minority enjoyment of their culture).24 Some sources of Article 12 restriction are private and indirect, and include blood feud-related crimes which leave families confined to their homes for fear of retribution,25 and internal displacement, whether as a result of armed conflict or the prevalence of unchecked violence in a climate of impunity. Internal displacement generates heightened exposure to other human rights abuses, requiring a particularly strong protective response from the State.26 In Colombia a regime of safe conduct existed to secure the protection of villagers susceptible to reprisals from certain groups.27 Migrant workers often suffer violence and ill-treatment, including confinement, which goes unreported for fear of reprisal from the sponsor and the risk of deportation.28 The need for protection against private sources is a reminder of the Article 2(1) obligation to respect and ensure Covenant rights to all individuals within a State’s territory, whether from private or State sources.29 The need to engage the cooperation of other States in some circumstances is illustrated by the Committee’s review of El Salvador’s most recent 22 E.g., France CCPR/C/FRA/CO/5 (2015) 14 (concern about forced evictions from unlawfully occupied land, despite the insufficient number of reception areas made available to Travellers); Italy CCPR/C/ITA/CO/6 (2017) 14 (concern at the forcible eviction of members of the Roma, Sinti and Camminanti communities throughout Italy). 23 Georgopoulos et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010; Naidenova et al. v. Bulgaria, CCPR/C/106/D/2073/2011, 30 October 2012. 24 E.g., Israel CCPR/C79/Add.93 (1998) 23; Israel CCPR A/58/40 (2003) 85 (16); France CCPR/C/ FRA/CO/5 (2015) 13. On the interplay between freedom of movement and culturally sensitive minorities, see Na’ama Carmi, ‘Immigration Policy: Between Demographic Considerations and Preservation of Culture’, (2008) 2 L. & Ethics Hum. Rts, p. 1, at pp. 5 6. 25 E.g., Albania CCPR/C/ALB/CO/2 (2013) 10 (concern at the difficult situation of families, including children, who confined themselves to their homes for fear of retribution as a result of inadequate enforcement of blood feud related crimes). 26 E.g., Chad CCPR/C/TCD/CO/1 (2009) 13 (between 2007 and 2008 160,000 Chadians were internally displaced, most under 18 and subjected to rape and other forms of sexual violence by militia and other armed groups; Iraq CCPR/C/IRQ/CO/5 (2015) 21 (some internally displaced persons faced discriminatory constraints on their freedom of movement); Congo CCPR/C/COD/ CO/4 (2017) 27 (1.3 million people internally displaced as a result of conflict); Honduras CCPR/ C/HND/CO/2 (2017) 28 (increased vulnerability to sexual violence because of the impunity of their aggressors). For more detailed attention, see Martin Scheinin, ‘Forced Displacement and the Covenant on Civil and Political Rights’, in Anne Bayefsky and Joan Fitzpatrick (eds), Human Rights and Forced Displacement (Martinus Nijhoff, 2000), p. 66. 27 Colombia A/35/40 (1980) 250, 265 (State explanation that a regime of safe conduct existed in certain regions to secure the protection of villagers who were sometimes subjected to reprisals from certain groups). 28 E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 32 (reports that violence against domestic workers was under reported owing to fear of reprisal from the sponsor, the loss of livelihoods and the risk of deportation); Lebanon CCPR/C/LBN/CO/3 (2018) 39 (migrant domestic workers subjected to abuse and exploitation by shawishes under the sponsorship (kafala) system, including by the withholding of their identity documents forced confinement). 29 For other examples of private sources, see Mozambique CCPR/C/MOZ/CO/1 (2013) 8 (reports of racial discrimination against locals and local traders in tourist regions, and restrictions on their freedom of movement).

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report in which it identified a lack of adequate protection and assistance for those deported to El Salvador (in particular, unaccompanied migrant children), and for unaccompanied migrant children travelling through El Salvador on route for the United States.30 Chapter Outline Following the structure of Article 12 this chapter reviews relevant Committee jurisprudence and Concluding Observations, and provides selective coverage of the drafting history of each provision where it informs Committee decisionmaking or the content of each constituent right.

A RT I C L E 1 2 ( 1 ) : LI B E RT Y O F M O V E M E N T A ND F R E E D O M TO C H O O S E R E S I D E N CE Article 12(1) has two components: the right to liberty of movement, that is, to move freely from one place to another; and freedom to choose where to reside or be established. Both may apply concurrently, for example, in cases of house arrest, or confinement to specified towns or districts.31 The enjoyment of these rights may not be made dependent on the particular purpose or reason for moving or staying in a place.32 Movement The freedom of movement limb of Article 12(1) has been violated by house arrest,33 confinement to a particular village,34 a prohibition against entering a particular district,35 internal exile and banishment36 (which usually refers to internal banishment). Similar practices are ‘local expulsion’ and internal political exile.37 30 El Salvador CCPR/C/SLV/CO/7 (2018) 31. For proposals to advance implementation for vulnerable groups of persons through international cooperation, see Tom Clark and Francois Crepeau, ‘Human Rights in Asylum Sharing and Other Human Transfer Agreements’, (2004) 22 Neth. Q. Hum. Rts, p. 217. 31 E.g., Karker v. France, CCPR/C/70/D/833/1998, 26 October 2000 [9.2] (restrictions on move ment allowed the author to reside only in a particular area). 32 GC 27 [5]. 33 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.4]; Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009 [2.3], [7.5]. 34 Mpaka Nsusu v. Zaire, CCPR/C/27/D/157/1983, 26 March 1986 [10] (violation of Art. 12(1) because the author was banished to his village of origin for an indefinite period on release from prison). 35 Ackla v. Togo, CCPR/C/51/D/505/1992, 25 March 1996 [10]. 36 Mpandanjila v. Zaire, Communication No. 138/1983, Supp. No. 40 (A/41/40) at 121, 26 March 1986 [2.5], [9]; Bithashwiwa and Mulumba v. Zaire, CCPR/C/37/D/241 & 242/ 1987, 2 November 1989 [2.2], [13]. 37 E.g., Zaire A/42/40 (1987) 267 (banishment); Dominican Republic A/45/40 (1990) 372 (‘local expulsion’ (destierro)); Venezuela CCPR A/48/40 (1992) 290 (banishment); Iran CCPR/C/79/ Add.25 (1993) 14 (banishment from a place of residence, compulsion to reside in a given locality); Equatorial Guinea CCPR/CO/79/GNQ (2003) 13 (internal political exile).

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Article 12(1) may also be violated by physical barriers which impede freedom of movement, including confined crossing points and blockades, which are capable of having far-reaching effects. The Committee pointed out that the impact of travel restrictions at crossing points in Cyprus prevented Turkish Cypriots from undertaking religious pilgrimages;38 and the military blockade on the civilian population in the Gaza Strip by Israel led to the deaths of patients in need of urgent medical care, and prevented access to sufficient drinking water and adequate sanitation.39 The necessity of a permit for domestic travel40 and the imposition of curfews41 represent other restrictions on movement. Residence In some countries formalities are applied to limit the free choice of residence, including to prevent a change of residence, which are most restrictive when enforced through mandatory registration or residence permit (propiska) systems. These may also result in abuses and permit corruption,42 or loss of social welfare, education and other services if registration requirements are not strictly observed.43 Some restrictions on residence inhere in attempts at social engineering.44 Among far-reaching residence limitations are those which are the product of internal resettlement45 and forced displacement (most commonly in 38 Cyprus CCPR/C/CYP/CO/4 (2015) 18. See also Equatorial Guinea CCPR/CO/79/GNQ (2003) 13 (regret at reports of numerous military roadblocks, used as a means of extortion); Morocco CCPR/C/MAR/CO/6 (2016) 9 (concern at the sand wall (the ‘berm’) given the very few crossing points open to civilians and the presence of landmines and other explosive remnants of war along the berm). 39 Israel CCPR/C/ISR/CO/3 (2010) 8; Israel CCPR/C/ISR/CO/4 (2014) 12. 40 Korea (DPRK) CCPR/CO/72/PRK (2001) 19 (the requirement to obtain a ‘traveller’s certificate’ for domestic travel raised serious questions of compatibility with Art. 12(1)). 41 E.g., Turkmenistan CCPR/C/TKM/CO/2 (2017) 28 (concern at the reported application of a non official curfew requiring the population to return home before 10 pm and arrest of non compliant individuals for 24 hours for explanation and identification purposes). 42 E.g., Russian Federation CCPR/C/79/Add.54 (1995) 20, 37; Azerbaijan CCPR/C/AZE/CO/3 (2009) 18; Uzbekistan CCPR/C/UZB/CO/3 (2010) 18. 43 E.g., Albania CCPR/CO/82/ALB/ (2004) 17 (concern at high number of citizens who have migrated internally, but because they were not registered at their new domicile faced problems of access to social welfare, education and other services); Turkmenistan CCPR/C/TKM/CO/1 (2012) 12 (regret at system of mandatory registration at the place of residence as a prerequisite for residence, employment, acquisition of real estate and access to health services). 44 E.g., Romania A/34/40 (1979) 157, 172 (since the State provided each citizen with housing, certain measures had been taken to avoid a population exodus towards certain centres which were already over populated); Viet Nam A/45/40 (1990) 470, 486 (the system of residence was to maintain a balance in the distribution of the population between town and country); Norway CCPR/C/79/Add.27 (1993) 9 (‘compelling social considerations’ under which a foreign national’s right to choose their place of residence may be restricted); Denmark CCPR/CO/70/ DNK (2000) 16 (asylum seekers were often restricted or discouraged from choosing a residence in specific municipalities or from moving from one municipality to another). 45 Uzbekistan CCPR/CO/71/UZB (2001) 16 (concern at reports that more than 1,300 Tajiks, citizens of Uzbekistan, were forcibly (by the military) resettled 250 miles away, to improve their living conditions, and their villages were subsequently destroyed); Colombia CCPR/C/

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times of conflict),46 with unintended adverse consequences such as permanent loss of land,47 long-term use of collective shelters48 (from which forced eviction is also an Article 12 issue),49 inability to return home or coercion to return home in adverse circumstances.50 Protective measures are required,51 including a national strategy and those embraced by the Guiding Principles on Internal Displacement.52 Freedom to choose where to reside may also be violated by the destruction of homes, to which minorities are the common victim.53 The Committee did not make an Article 12 residence finding in the unusual circumstances of Lovelace v. Canada, focusing instead on Article 27. A Maliseet Indian who had lived on the Tobique Reserve all her life except for a few years during her marriage was unable to return after her marriage broke down because legislation protecting that particular minority caused her to forfeit the right to live there after marrying a non-Indian. The Committee construed and applied Article 27 in the light of Articles 12, 17 and 23, and found it was violated for want of reasonable and objective justification.54 Everyone Lawfully Within the Territory of a State Article 12(1) applies on equal terms to citizens and aliens ‘lawfully in the territory’ of a State Party, yet its operation is decidedly asymmetrical because in principle citizens of a State are always lawfully within the territory of that State, whereas for non-citizens States possess discretion under domestic law to determine the lawfulness of, and to impose conditions

46 47 48

49 50 51 52 53 54

COL/CO/7 (2016) 30 (instances of internal displacement, including cases involving large numbers, occur owing to the activities of illegal armed groups that formed in the wake of the demobilisation of paramilitary organisations and the implementation of megaprojects). Chad CCPR/C/TCD/CO/1 (2009) 10; Ethiopia CCPR/C/ETH/CO/1 (2011) 16; Sudan CCPR/C/ SDN/CO/3 (2007) 9 & Sudan CCPR/C/SDN/CO/4 (2014) 8. Kosovo CCPR/C/UNK/CO/1 (2006) 18 (concern at the inability of displaced persons to recover their real property, including agricultural lands). E.g., Macedonia CCPR/C/MKD/CO/2 (2008) 15 (internally displaced persons still remain in collective shelters); Croatia CCPR/C/HRV/CO/2 (2009) 14 (many internally displaced persons remain in collective shelters); Bosnia and Herzegovina (2012) 16 (concern that a considerable number of refugees, returnees and internally displaced persons have still not been resettled and continue to reside in collective centres); Kenya CCPR/C/KEN/CO/3 (2012) 20 (concern at the slow pace of finding durable solutions for all internally displaced persons). E.g., Georgia CCPR/C/GEO/CO/3 (2007) 12 (regret at reported cases of forced eviction from collective centres for IDPs without a court decision); Haiti CCPR/C/HTI/CO/1 (2014) 18 (forcible eviction from camps of those displaced by the 2010 earthquake). E.g., Russian Federation CCPR/CO/79/RUS (2003) 16 (ensure that internally displaced persons in Ingushetia are not coerced into returning to Chechnya). E.g., Sudan CCPR/C/SDN/CO/3 (2007) 23; Colombia CCPR/C/COL/CO/6 (2010) 23; Ethiopia CCPR/C/ETH/CO/1 (2011) 14; Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 16. Guiding Principles on Internal Displacement, 22 July 1998, ADM 1.1,PRL 12.1, PR00/98/109. See above, sections ‘Introduction’, ‘Interaction between Article 12 and Other Covenant Provisions’. Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981 [14] [17].

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on, their presence.55 Nevertheless, even unlawful aliens will be taken to be ‘lawfully in the territory’ once allowed to stay, even if they do so under restrictions on their freedom of movement.56 Those restrictions must not themselves violate other Covenant rights, such as Article 7 (inhuman or degrading treatment) or Article 10 (inhuman conditions of detention) in the conditions of confinement57 or be discriminatory.58 Before aliens are lawfully within a State’s territory there is no right to enter or reside there. Article 12(1) does not, as such, guarantee a right to residence within a State.59 Both Article 12(1) freedoms (movement and residence) extend to the whole territory of a State and all parts of constituent federal units.60 Reach of State Responsibility Article 12 is capable of extraterritorial reach.61 Jiménez Vaca v. Colombia demonstrates how State responsibility for violating certain Covenant provisions, in that case Articles 6 and 9, may have consequential impact on Article 12 rights. The author was regularly harassed because of his work as the legal adviser to several trade unions and people’s and peasants’ organisations. In response to his OP1 petition the Committee found violations of Article 9(1), in the State’s failure to ensure his personal safety following death threats, and Article 6(1), for a subsequent attempt on his life carried out by State agents. There was no 55 GC 27 [4]. For an example of the right not guaranteed to ‘everyone’, see Armenia CCPR/C/79/ Add.100 (1998) 7 (the Constitution guaranteed freedom of movement only to Armenian citizens). 56 Celepli v. Sweden, CCPR/C/51/D/456/1991, 18 July 1994 [9.2] (the author’s expulsion was ordered but not enforced (because it was believed that Kurds could be exposed to political persecution in Turkey); he was allowed to stay subject to restrictions on his freedom of move ment rendering him lawfully in the territory under Art. 12(1)). For Art. 12 concerns for asylum seekers, see, e.g., France CCPR/C/79/Add.80 (1997) 20 (asylum seekers not allowed to dis embark from ships at French ports, and no opportunity to assert their individual claims); Lithuania CCPR/C/79/Add.87 (1997) 15; Dominican Republic CCPR/CO/71/DOM (2001) 16. 57 For the distinction between Arts 7 and 10 in their application to immigrants, see chapter on Article 10: Treatment of Those Deprived of Their Liberty, section ‘Immigration Detention’. 58 For Committee concern at the conditions attaching to lawful presence, see, e.g.: Lithuania CCPR/ C/79/Add.87 (1997) 14 (concern that breach of freedom of movement conditions imposed on those with temporary refugee status may result in the rejection of their claim for asylum); Chile CCPR/C/CHL/CO/6 (2014) 23 (concern at confiscation of migrant workers’ identity documents if they violate migration laws). See also Thailand CCPR/C/THA/CO/2 (2017) 11 (reports of travel restrictions on migrants who had regularised their status); Dominican Republic CCPR/CO/ 71/DOM (2001) 17 (living and working conditions of Haitian workers and the tolerated practices that restricted their freedom of movement). 59 GC 27 [5]. 60 GC 27 [5]. 61 Aldo S. Zilli, ‘Approaching the Extraterritoriality Debate: the Human Rights Committee, the US and the ICCPR, (2011) 9 Santa Clara J. Int. L., p. 399, at p. 415. On the extraterritorial treatment by the ICJ of the construction of the West Bank Wall, see Rosalyn Higgins, ‘Human Rights in the International Court of Justice’, (2007) 20 LJIL, p. 745; John Tobin, ‘Seeking Clarity in Relation to the Principle of Complementarity: Reflections on the Recent Contributions of Some International Bodies’, (2007) 8 Melb. J. Int. L., p. 356, at p. 360.

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investigation by authorities. After these events he fled the country. His Article 12 claims were that he was unable to choose his residence and practise as a lawyer in the place of his choosing in violation of Article 12(1); and he could not re-enter his country as he was entitled to under Article 12(4) because he was targeted by the military. The State argued that it could not be held responsible for matters arising indirectly out of violent acts, particularly where they were not primarily aimed at violating the rights claimed. The Committee disagreed. Having found there was a violation of Article 9(1), and no effective domestic remedies allowing the author to return from involuntary exile in safety, there was also a violation of Article 12(1) and (4) for not ensuring his right to remain in, return to and reside in his own country.62 Under Article 9 States must protect individuals from foreseeable threats to life or bodily integrity, and must take prospective measures to prevent future injury, as well as retrospective measures (such as enforcement of criminal laws) in response to past injury. In El Hojouj Jum’a et al. v. Libya, following multiple attacks against the security of the authors, combined with failure to take those necessary measures, the Committee found a violation of Article 12(1) when the authors were compelled to leave their home in Tarhuna and flee to Tripoli for fear of being killed.63 State responsibility under Article 12 may also, in rare circumstances, extend to quite lawful measures, such as those under Security Council resolutions. The background to Sayadi and Vinck v. Belgium was that Belgium initiated a criminal investigation of the authors, which it later dismissed, but not before it informed the UN Sanctions Committee (under resolutions introducing sanctions to combat the financing of terrorism) that the authors were subject to measures relevant to the list maintained by the Sanctions Committee. As a result, the authors’ financial assets were frozen and they were prevented from travelling outside Belgium. The Committee found that, even though Belgium was not competent to remove the authors’ names from the lists, it was responsible for their names being entered on them in the first place and for the resulting travel ban. Because the domestic criminal prosecution against the authors was dismissed, and because Belgium had requested that their names be removed from the lists, it was clear that the authors did not pose any threat to national security or public order, and the Article 12 restriction was unjustified.64

A RT I C L E 1 2 ( 2 ) : FR E E D OM TO LEAV E A N Y C OU N TRY Since a passport provides the means practicably to exercise the right to freedom of movement, a common means of restricting freedom to leave a country is to refuse 62 Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [3.5], [5.5], [7.4]. Cf. Randolph v. Togo, CCPR/C/79/D/910/2000, 27 October 2003 [12] (Art. 12 claim resulting from the author being forced into exile was based on continuing effects but not substantiated to the level of specificity required to establish a violation). 63 El Hojouj Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014 [6.5] [6.6]. 64 Sayadi and Vinck v. Belgium, CCPR/C/94/D/1472/2006, 22 October 2008 [10.4] [10.8].

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to issue a passport,65 to refuse to renew one once expired,66 to confiscate one already issued,67 to refuse to restore it once confiscated, or to refuse to prolong its validity.68 Granting a laissez-passer to return to the country of nationality is not sufficient for Article 12 purposes as it does not allow the holder to leave again.69 Restrictions on the freedom to leave a country may also result from the application of laws on migration.70 It is sufficient for a finding of violation that the restriction is only temporary.71 In the case of a citizen resident abroad, Article 12(2) imposes obligations on both the State of nationality and the State of residence to ensure the right is not unjustifiably restricted. Article 2(1) cannot therefore be interpreted as confining a State’s obligations under Article 12(2) to citizens within its own territory.72 The Committee’s review of State reports abound with Article 12 restrictions concerning passports.73 Exit visas are also an effective source of restriction if generally required,74 and even when imposed for specific purposes if the procedure is onerous and bureaucratic.75 Exit restraints have no justification where 65 Peltonen v. Finland, CCPR/C/51/D/492/1992, 21 July 1994 [8.3] [8.4] (withholding a passport until the author completed his mandatory national service was justified under Art. 12(3)). 66 Lichtensztejn v. Uruguay, Communication No. 77/1980, CCPR/C/OP/2 at 102, 31 March 1983 [8.2] [8.3] (refused issuance of a new passport). 67 Bahamonde v. Equatorial Guinea, CCPR/C/49/D/468/1991, 20 October 1993 [9.3] (passport confiscated on two occasions). Cf. Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.9] (violation of Art. 12(1) not 12(2) when the author’s passport was con fiscated among other measures preventing him from leaving Angola for South Africa to parti cipate in a conference). 68 Martins v. Uruguay, Communication No. R.13/57, Supp. No. 40 (A/37/40) at 157, 23 March 1982 [6.2] (a passport of ten years’ validity had to be confirmed after five years). 69 El Ghar v. Libya, CCPR/C/82/D/1107/2002, 29 March 2004 [7.2]; Martins v. Uruguay, Communication No. R.13/57, Supp. No. 40 (A/37/40) at 157, 23 March 1982 [6.2]. 70 Orazova v. Turkmenistan, CCPR/C/104/D/1883/2009, 20 March 2012 [7.2], [7.4]. 71 Orazova v. Turkmenistan, CCPR/C/104/D/1883/2009, 20 March 2012 [7.4]. 72 Montero v. Uruguay, Communication No. 106/1981, Supp. No. 40 (A/38/40) at 186, 31 March 1983 [9.4]; El Ghar v. Libya, CCPR/C/82/D/1107/2002, 29 March 2004 [7.3]. Cf. J.M. v. Jamaica, Communication No. 165/84, Selected Decisions under OP1, vol. 2, p. 17, 26 March 1986 (failure by the author at admissibility stage to demonstrate he was a citizen of Jamaica when seeking a replacement passport abroad). 73 E.g., Azerbaijan CCPR/C/79/Add.38 (1994)10; Nigeria CCPR/C/79/Add.65 (1996) 24; Lebanon CCPR/C/79/Add.78 (1997) 22; Cameroon CCPR/C/79/Add.116 (1999) 22; Syria CCPR/CO/71/ SYR (2001) 21; Gambia CCPR/CO/75/GMB (2002) 15. 74 E.g., Yugoslavia A/33/40 (1978) 376, 390; Gabon CCPR/C/79/Add.71 (1996) 16 (foreign workers); Gabon CCPR/CO/70/GAB (2000) 16; Korea (DPRK) CCPR/CO/72/PRK (2001) 20; Syria CCPR/CO/71/SYR (2001) 21; Equatorial Guinea CCPR/CO/79/GNQ (2003) 13; Uzbekistan CCPR/CO/83/UZB (2005) 19; Uzbekistan CCPR/C/UZB/CO/3 (2010) 18; Kazakhstan CCPR/C/KAZ/CO/1 (2011) 18; Uzbekistan CCPR/C/UZB/CO/4 (2015) 20. 75 For ostensible justifications, see, e.g., Central African Republic A/43/40 (1988) 284, 300 (exit visa requirements explained as simply to prevent difficulties at the border or in the host country, and to prevent anyone from leaving the country without first fulfilling their tax obligations). Concerning the cost of visas, see, e.g., Senegal A/35/40 (1980) 207, 227 (repatriation deposit required of each Senegalese citizen leaving the country was to ensure that a worker who went abroad would be able to return in the event of difficulty); Cameroon A/44/40 (1989) 480 (visa charges were claimed to be fully justifiable in view of the expenses that might be incurred in

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aimed at suppressing political or religious dissent,76 where they prevent women leaving the country without the consent of their husband or other male relative,77 or where they are imposed automatically on those who have had access to State secrets.78 Freedom to leave a country may not be made contingent on any particular purpose for leaving, the duration of absence (e.g., permanent emigration) or on the State of destination. Because Article 12(2) is not confined to those lawfully within a State (unlike Article 12(1)) it equally protects illegal aliens and allows those being deported to choose any destination State which they are entitled to enter.79 Restrictions may be justified under Article 12(3), in the case of both citizens and aliens, if there is an outstanding arrest warrant or other judicial proceedings against them,80 but not for non-fulfilment of contractual obligations where this would also violate Article 11.81 Restrictions on individuals who have not yet performed their military service have been found to be justified under Article 12(3), but an in-principle ban would not have Committee support as its coverage extends beyond cases justified by Article 12(3).82

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connection with repatriation); Iraq CCPR/C/79/Add.84 (1997) 14 (recommendation that admin istrative costs for the issue of passports be reduced). E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 29 (concern at the existence of various lists to control entry into or exit from the country, with the exit control list allegedly used to restrict the freedom of movement of dissenting persons). See also Sudan CCPR/C/79/Add.85 (1997) 14 (lists of names were drawn up by various executive agencies without meeting any defined legal criteria, to prevent individuals leaving the country); Thailand CCPR/C/THA/CO/2 (2017) 25 (reports of arbitrary detention of hundreds for ‘attitude adjustments’ for exercising their freedoms of expression and assembly after the 2014 coup, who upon release were reportedly compelled to sign a written agreement not to travel abroad and refrain from expressing political views, on pain of two years’ imprisonment). E.g., Lebanon CCPR/C/79/Add.78 (1997) 18; Sudan CCPR/C/79/Add.85 (1997) 14. E.g., USSR A/45/40 (1990) 106; Belarus A/47/40 (1992) 560; Russian Federation CCPR/C/79/ Add.54 (1995) 20; Lithuania CCPR/C/79/Add.87 (1997)15. GC 27 [8]; GC 15 [9]. Gonzalez del Rio v. Peru, CCPR/C/46/D/263/1987, 28 October 1992 [5.3] [5.4]. For relevant Concluding Observations, see, e.g., Costa Rica A/35/40 (1980) 359 (restrictions on the right to leave Costa Rica applied to both Costa Ricans and foreigners where they had to pay alimony or where a conditional release by a court order was involved); Czechoslovakia CCPR A/41/40 (1986) 347 (departure could be restricted when a person was subject to criminal proceedings or who, during a previous visit abroad, had acted in a manner detrimental to the country); Tunisia A/ 42/40 (1987) 133, 134 (restrictions applied to those sought by the public prosecutor in connection with judicial proceedings); Central African Republic A/43/40 (1988) 284, 300 (to prevent departure without first fulfilling their tax obligations); Trinidad and Tobago A/43/40 (1988) 65, 67 (the right to leave the country was denied for those in arrears in the payment of their taxes, the Committee noting that the measures taken to prevent tax evasion were clearly allowable under Art. 12(3)). Georgia CCPR/CO/74/GEO (2002) 10 (concern at the fact that a person may be detained and imprisoned or prevented from leaving their residence because of non fulfilment of contractual obligations). Peltonen v. Finland, CCPR/C/51/D/492/1992, 21 July 1994 [8.3] [8.4]. Cf. Tunisia A/42/40 (1987) 133, 134 (restrictions regarding those liable for military service); Russian Federation CCPR/C/79/Add.54 (1995) 20 (regret that all individuals not having yet performed their national service were excluded in principle from enjoying their right to leave the country).

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A RT I C L E 1 2 ( 3 ) : LI M I TATI O N S Article 12(3) is a limitation provision which applies to restrictions on a person’s freedom of movement under Article 12(1) (if they are lawfully in a country), or on a person’s freedom to leave any country under Article 12(2). Differences in treatment in the limitations of those rights between aliens and nationals, or between different categories of aliens, need to be justified under Article 12(3).83 The limitation terms of Article 12 generated much discussion, both in the Human Rights Commission during their drafting, and in the Committee’s General Comment on Article 12. The drafters originally attempted long lists of exceptions to the rights in Article 12(1) and (2). When it became apparent that it was impossible to include an exhaustive list of all permissible restrictions, and that general wording then proposed might be so broad as to render the Article of little practical value, one view was that the entire provision should be deleted, since freedom of movement was not a fundamental, but merely a secondary right. The contrary view prevailed that it was an important human right, an essential part of the right to personal liberty. Attention then turned to restrictions which States may consider to be ‘legitimate’ or ‘necessary’ in certain circumstances (e.g., affecting migrant workers or indigenous populations for their own protection) and to prevent departure from the country to evade legal proceedings, national service, the payment of fines, taxes or maintenance allowances. There was some acceptance that the right might be curtailed by domestic law ‘consistent with the other rights recognized in the covenant’ in order to protect ‘national security, public safety, health, morals, or the rights and freedoms of others’, although there was concern that those phrases could lead to abuse. The addition of such words as ‘general welfare’, ‘economic and social well-being’, ‘prevention of disorder or crime’ and ‘public order’ were also proposed but not adopted because they were considered to be too far-reaching.84 In the Third Committee the Commission’s draft came under criticism insofar as it used the term ‘reasonable’ to qualify the word ‘restrictions’, because it may be presumed that restrictions prescribed by law must at least be reasonable. The concept of reasonableness was ultimately displaced in an amendment proposed by Argentina, Belgium, Iran, Italy and Philippines and adopted overwhelmingly, which took the text substantially towards its final form.85 Provided by Law To the majority in the Human Rights Commission the purpose of the qualification ‘provided by law’ was that ‘the article should specify that such law must be just, 83 General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986 [8]. 84 A/2929 (1955), Ch.VI, pp. 38 39 [51] [56]. For the list, see E/800 (1948), Art. 11 [12]. 85 A/4299 (1959), pp. 4 5 [11], [14].

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otherwise it could be interpreted as authorizing States to impose any limitations they wished’. To achieve this, it was suggested that the law ‘must be in accordance with the principles of the Charter and the Universal Declaration of Human Rights’. A proposal that it should be ‘consistent with the other rights recognized in the Covenant’ was preferred, and remained in the final text.86 The Third Committee turned its attention to the breadth of the term ‘law’, since it could cover not only constitutional and statutory provisions but also measures taken by the executive branch under powers conferred on it.87 Since freedom of movement is prone to administrative restriction, it was all the more important that any restriction be ‘provided by law’.88 The question of the requisite properties of the law was taken further in General Comment 27, which stresses that the law itself has to establish the conditions under which the rights may be limited,89 and that laws authorising the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.90 Findings for want of the ‘provided by law’ requirements’ of Article 12(3) are rare, partly because they require careful scrutiny of domestic law and its application in the circumstances, which the Committee may prefer to avoid, and wider or more generalised findings under Article 12 may be considered sufficient. Examples of a specific ‘provided by law’ finding potentially available but not made are: Rafael Marques de Morais v. Angola, when the author’s passport was confiscated without justification or legal basis, since his bail restrictions no longer applied;91 Yklymova v. Turkmenistan, when house arrest for nearly four years was without any legal basis;92 and Orazova v. Turkmenistan, when it was a central part of the author’s claim that the State provided no information as to the legal basis for the restrictions imposed on her and her family’s right to leave the country.93 However, in Gorji-Dinka v. Cameroon the Committee did describe the house arrest to which the author was subjected following acquittal on criminal charges as ‘itself unlawful and arbitrary’.94 In its Concluding Observations the Committee often takes issue with the failure by States to meet the ‘provided by law’ requirement in Article 12(3),95 including 86 A/2929 (1955), Ch.VI, p. 39 [54]. 87 A/4299 (1959), p. 5 [14]. 88 Nowak, CCPR Commentary, pp. 271 3, undertakes a detailed analysis of the English and French texts of Arts 9 and 12 (‘provided by law’), 13 (‘in accordance with law’), 18 and 22 (‘prescribed by law’) and 21 (‘in conformity with the law’), and equivalent texts in the European Convention. He concludes that in contrast to Arts 13 and 21 (which have a less strict meaning) restrictions under Art. 12(3) must be set down by the legislature or by an equivalent unwritten norm of common law. 89 GC 27 [12]. 90 GC 27 [13], adopted in GC 34 [21]. 91 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.9]. 92 Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009 [2.3], [7.5]. 93 Orazova v. Turkmenistan, CCPR/C/104/D/1883/2009, 20 March 2012 [2.3], [7.4]. 94 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [5.4], [5.5]. 95 For other examples of examination of the ‘provided by law’ requirement, see Finland CCPR A/ 41/40 (1985) 204 (restrictions by decree on the right of an alien to choose their place of residence

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by vaguely defined grounds for restriction.96 When examining the latest report of Belarus it gave as an example of ‘laws and practices that do not appear to comply with the principles of legal certainty, necessity and proportionality’ arbitrary travel bans on human rights defenders, lawyers and journalists.97 This is consistent with its recent criticism, in the context of Articles 14 and 15, of the legislative basis for prosecutions formulated in a broad and vague fashion susceptible to wide interpretation, that does not comply with the principle of legal certainty and predictability.98 Necessary The respondent State frequently offers no explanation, still less argues the necessity for restrictions, where there is a refusal to return or issue a passport,99 and it is no justification for a State to claim that its national would be able to re-enter to its territory without a passport.100 State authorities must obviously avoid any measures which are excessive, whether by the disproportionate use of force101 or because they entail incommensurate adverse consequences.102 The requirements of necessity are clear and specific. In General Comment 27 the Committee described as ‘exceptional’ the circumstances in which rights under

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were not based on law); Tunisia CCPR/C/79/Add.43 (1994) 12 (grounds for refusing a passport were not clearly specified by law in a compliant way, leaving open the possibility of refusal on political or other unacceptable grounds); Georgia CCPR/C/GEO/CO/3 (2007) 12 (regret at reported cases of forced eviction from collective centres for IDPs without a court decision). Belarus CCPR/C/79/Add.86 (1997) 12 (unreasonable restrictions on the freedom of citizens to leave the country, some of them vaguely defined and open to wide interpretation by the authorities and therefore susceptible of abuse, such as possession of State secrets, refusal to discharge obligations or on going proceedings in case of a civil suit). See also Norway CCPR/C/ 79/Add.27 (1993) 9 (concern over the vagueness of the criterion of ‘compelling social con siderations’, under which a foreign national’s right to choose their place of residence may be restricted). Belarus CCPR/C/BLR/CO/5 (2018) 49 (concern about laws and practices that do not appear to comply with the principles of legal certainty, necessity and proportionality, including arbitrary travel bans on human rights defenders, lawyers and journalists in connection with their activities). Nasheed v. Maldives, CCPR/C/122/D/2270/2013 & 2851/2016, 4 April 2018 [8.3]. See also chapters on Article 14: Fair Trial Rights, section ‘Determination of a Criminal Charge’; Article 15: Retroactive Criminal Law, section ‘Nulla poena sine lege certa’. E.g., El Ghar v. Libya, CCPR/C/82/D/1107/2002, 29 March 2004 [7.3]; Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.9]; El Dernawi v. Libya, CCPR/C/90/ D/1143/2002, 20 July 2007 [6.2]; Aboufaied v. Libya, CCPR/C/104/D/1782/2008, 21 March 2012 [7.8]. See also Sweden A/33/40 (1978) 75, 87 (questioning about the power to deny a passport to an applicant suspected of ‘pursuing relations’ with a foreign power). GC 27 [9]. Morocco CCPR/C/MAR/CO/6 (2016) 35 (excessive use of force against migrants and partici pation of Moroccan security forces in collective expulsions). Israel CCPR/CO/78/ISR (2003) 19 (unjustifiably severe restrictions on the right to freedom of movement of, in particular, Palestinians within the Occupied Territories had adverse repercus sions on freedom of movement, disrupting access to healthcare, including emergency medical services, and access to water).

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Article 12(1) and (2) may be restricted,103 and it reminded States that when adopting laws providing for permissible restrictions States are directed not to reverse the relation between right and restriction, between norm and exception.104 It restated the principle that permissible limitations must not nullify the right.105 It is not sufficient that restrictions merely serve permissible purposes.106 They must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality: they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.107 The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law.108 National Security; Public Order (Ordre Public) National security and public order are often considered together in the Committee’s merits assessments. It suggested in Gonzalez del Rio v. Peru that the right to leave a country may be restricted primarily on grounds of national security and public order, in the context of an Article 12(2) claim in which the author was unable to leave the country owing to a pending arrest warrant. Pending judicial proceedings may justify restrictions on an individual’s right to leave a country but not in that instance, as the relevant proceedings were delayed more than seven years.109

103 GC 27 [11]. 104 GC 27 [13], adopted in GC 34 [21]. 105 GC 27 [2], [13]. For earlier statement of this principle, see CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/ Add.4 [8] (limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in Art. 18); and later GC 34 [21] (when a State Party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself). 106 For questioning over particular grounds of limitation, see, e.g., Australia A/38/40 (1983) 147, 168 (restrictions on entry to the Cocos and Norfolk Islands to protect the rights of small and isolated communities); Czechoslovakia CCPR A/41/40 (1986) 346 (necessary for persons seeking to leave the country to get authorisations from employers and from municipal autho rities); Romania A/42/40 (1987) 322 (noting that the limitation grounds in the interests of the Romanian State or the State’s good relations with other States were not enumerated in Art. 12(3)); Tunisia A/42/40 (1987) 133, 134 and Tunisia A/45/40 (1990) 523, 524 (‘injury to Tunisia’s good name’ a ground of limitation); Central African Republic A/43/40 (1988) 284, 300 (restrictions on freedom of movement of foreigners in mining areas were intended to curb the illegal export of the country’s gold and diamond deposits); Rwanda A/43/40 (1988) 227 (regulations governing changes of residence were needed to ensure that no one could leave a commune without having somewhere else to live, in view of the fact that the country’s agricultural land was limited); Mauritius A/44/40 (1989) 521, 522 (questioning whether the permissible restrictions under Mauritian law, ‘complying with norms that were reasonably justifiable in a democratic society’ were the same as those permitted under the Covenant). 107 GC 27 [14], adopted in GC 34 [34]. 108 GC 27 [15]. 109 Gonzalez del Rio v. Peru, CCPR/C/46/D/263/1987, 28 October 1992 [5.3].

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As already observed, the travaux demonstrate support for measures to prevent departure from a country to evade legal responsibilities, including national service, and influenced the Committee’s finding of no violation of Article 12(2) in Peltonen v. Finland when a passport was withheld from an individual by Finnish authorities until he had completed his mandatory national service. The effect was that he could not leave Sweden, where he lived, except to enter countries that did not require a valid passport. The Committee’s position was that restrictions on freedom of movement on individuals who have not yet performed their military service were in principle necessary for the protection of national security and public order.110 In Salah Karker v. France the Committee supported as necessary for reasons of national security the restrictions on the freedom of movement of someone involved in an Islamic movement which advocated violent action. He was recognised as a political refugee shortly after arrival in France but some years later, under suspicion that he actively supported a terrorist movement, the competent minister ordered his expulsion as a matter of urgency. The order was not enforced and instead he was subject to compulsory residence orders, limiting his movement to a comparatively wide area. The appeal decision upheld earlier orders based on public security, in the light of the situation in France, given the information available to the authorities about his close links with an organisation with violent methods.111 Measures based on security and public order did not, however, justify localised restrictions on movement on the author in Ory v. France. He was a member of the Traveller community who was fined for not having a valid stamp on his travel permit. Those of no fixed abode or residence for more than six months, who were living in a mobile shelter with no regular income, were required to have a travel card stamped every three months in order for them to be able to travel in France. The Committee acknowledged that an obligation to have a travel permit, and to have it stamped at intervals by the police, was for the purpose of maintaining security and public order, to enable the State to check that those who regularly change their place of residence are and remain identifiable and contactable. However, the State did not sufficiently demonstrate that the obligation to have the card stamped, or subjecting someone who failed to do so to criminal charges, were necessary and proportionate to that end.112 The entire lack of a national security justification was evidenced by the State’s own admission in El Dernawi v. Libya that the author’s family were being 110 Peltonen v. Finland, CCPR/C/51/D/492/1992, 21 July 1994 [8.3] [8.4]. See also relevant Concluding Observations on this issue in section ‘Article 12(2): Freedom to Leave any Country’, above. 111 Karker v. France, CCPR/C/70/D/833/1998, 26 October 2000 [9.2]. For another example of terrorist related security grounds supported by the Committee, see Celepli v. Sweden, CCPR/C/ 51/D/456/1991, 18 July 1994 [9.2]. 112 Ory v. France, CCPR/C/110/D/1960/2010, 28 March 2014 [8.4] [8.5].

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prevented from leaving the country solely because the author was accused of a political crime.113 Restrictions on movement within military zones, and areas where military operations are undertaken, give rise to issues primarily of national security,114 as do anti-terrorism measures.115 Article 12(3) makes no mention of ‘public safety’ (like Articles 18(3), 21 and 22(2) do), and so restrictions on freedom of movement and residence would depend on ‘public order’ grounds in the case of traffic safety measures, and steps taken to prevent the occupation of unsafe buildings.116 Public Health or Morals Restrictions on access to sites which have been affected by environmental contamination could be supportable on ‘public health’ grounds,117 as could restrictions imposed when quarantining against the spread of disease.118 ‘Morals’ is a ground that is particularly rarely invoked, though Sudan’s official enforcement of a strict dress code for women in public places was defended under the guise of ‘public order and morality’,119 and Czechoslovakia hinted at ‘morality’ as the basis for restrictions on residence imposed on those sentenced to certain crimes.120 113 El Dernawi v. Libya, CCPR/C/90/D/1143/2002, 20 July 2007 [3.1], [6.2]. 114 E.g., Poland A/35/40 (1980) 52, 67 (State explanation that exceptions to the individual’s freedom to choose their place of residence concerned military areas important for national defence or border areas); Philippines A/44/40 (1989) 325, 349 (forced evacuations occurred routinely during military operations and incursions by rebel forces). 115 E.g., UK CCPR/C/GBR/CO/7 (2015) 15 (concern at the possibility of persons being rendered stateless by temporary exclusion orders and citizenship deprivation orders in the terrorism context); Australia CCPR/C/AUS/CO/6 (2017) 15 (concern at the necessity and proportionality of certain counter terrorism powers, including control orders, stop, search and seizure powers, questioning and detention warrants, preventive and post sentence detention order regimes, ‘declared areas’ offences and revocation of citizenship). 116 Belgium A/43/40 (1988) 498 (aliens forbidden to settle in six communes of the Brussels urban area because of the obsolete state of the dwellings and the lack of infrastructure). 117 Japan CCPR/C/JPN/CO/6 (2014) 24 (concern that the high threshold of exposure level set in Fukushima and the decision to cancel some of the evacuation areas gave people no choice but to return to highly contaminated areas). 118 Rwanda A/37/40 (1982) 225 (State explanation that an exception to freedom of movement was quarantine for persons who had not been vaccinated); Liberia CCPR/C/LBR/CO/1 (2018) 12 (failure to comply with Art. 4 when derogating from Art. 12 during the declared state of emergency during the Ebola virus crisis). Particularly difficult to justify would be the require ment in Turkmenistan CCPR/C/TKM/CO/2 (2017) 32 of a medical certificate showing that the holder was HIV free for visa applications; see also chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘Key Elements of Article 17’, ‘HIV Testing’. 119 Sudan CCPR/C/79/Add.85 (1997) 22 (concern at official enforcement of strict dress require ments for women in public places, under the guise of public order and morality). 120 Czechoslovakia A/33/40 (1978) 140 (explanation that a court could order prohibition of residence in the case of persons sentenced for certain crimes when their presence at a particular place was undesirable for reasons connected with public order or public health, or with the protection of the family, morality or property, that ‘anti social elements’ were deemed

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Rights and Freedoms of Others Restrictions may be justified on the strength of the ‘rights and freedoms of others’ to prevent trespassing on private property, even though there is no property right under the Covenant (unlike the European Convention). The omission from Article 12(3) of the word ‘fundamental’, when qualifying the rights and freedoms of others (found among limitation provisions only in Article 18(3)), may assist. Article 27 may provide the justification for restrictions on freedom of movement, to protect the Article 27 rights of cultural minorities in the use of their land, particularly the natural resources on which they depend.121 The requirement of consistency with the other Covenant rights also takes account of the (Covenant) rights and freedoms of others. Consistency with the Covenant Nowak describes the inclusion of the qualification ‘consistent with the other rights recognized in the Covenant’ as a quest for a formulation that would specify what a ‘just’ law should contain. He suggests this qualification may be decisive to rule out justification in the hypothetical case of a person barred from leaving a country solely on account of an opinion expressed, participation in an assembly, religious belief or political conviction. The interference (under Article 12) may well be provided by law and also justifiable in the interests of national security or public order, but it is not compatible with the prohibition of discrimination or the freedoms of expression, religion or assembly; and this is so even when the measure as such does not constitute an express violation of Articles 18, 19 or 21.122 (The travel bans and exit visas mentioned in the Introduction to this chapter which are used to limit freedom of expression by independent journalists, those posing political opposition, and human rights defenders bear out the reality of Nowak’s example.) The commonality across Articles 12 and 27 is interesting on the question of Covenant consistency, particularly since Article 27 does not have permissive scope defined by any limitation clause or qualification such as arbitrariness. In Lovelace v. Canada the Committee approached restrictions which affected the

to be persons who had been sentenced several times for acts prejudicial to the property of other persons, to morality, to honest work, and so on). 121 Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988; Lubicon Lake Band v. Canada, CCPR/ C/38/D/167/1984, 26 March 1990. 122 Nowak, CCPR Commentary, pp. 273 4. Consistent with this are GC 22 [8] (restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner . . . States parties should proceed from the need to protect the rights guaranteed under the Covenant); GC 27 [18] (the application of the restrictions permissible under Art. 12(3) needs to be consistent with the other rights guaranteed in the Covenant and with the fundamental principles of equality and non discrimination); GC 34 [26] (laws must not violate the non discrimination provisions of the Covenant).

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author’s right to live on a reserve as an Article 27 matter, with the requirement that they ‘must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole’, the most pertinent in context being Articles 12, 17 and 23.123 The Committee addressed the content of the law in Maroufidou v. Sweden under Article 13, to import Covenant compatibility. The stipulation that an expulsion decision be reached ‘in accordance with the law’ requires that the relevant provisions of domestic law must in themselves be compatible with the provisions of the Covenant.124 There are parallels between the Article 12(3) condition that limitations be Covenant consistent in order to be permissible, and the Committee’s approach to arbitrariness under Articles 6 and 9. The Committee considers that deprivation of life (Article 6) is, as a rule, arbitrary if it is inconsistent with international law or domestic law.125 It also found Article 9 violations in Fardon v. Australia, because the ‘grounds’ and the ‘procedures’ which were to be ‘established by law’ as required by Article 9(1) were themselves arbitrary because of incompatibility with Article 15,126 and in Hicks v. Australia in arrangements for a prisoner transfer which were not compatible with Australia’s obligations under the Covenant. In a number of decisions it has found arrest and detention to be arbitrary where it results from expressing political or other convictions.127 Derogation Derogation is permitted from Article 12 in time of public emergency, and States have taken advantage of the derogation procedure in Article 4,128 but the Committee has sought justification for particular derogating measures,129 and 123 Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981 [16]. For further discussion of the coincidence in Lovelace of Arts 12 and 27 in a restriction on residence, see chapter on Article 27: Ethnic, Religious and Linguistic Minorities, section ‘Reasonable and Objective Justification/Consistency with the Covenant’. Note also General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/Add.5 [8]: ‘none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant’. 124 Maroufidou v. Sweden, CCPR/C/12/D/58/1979, 9 April 1981 [9.3]. See chapter on Article 13: Procedural Safeguards in the Expulsion of Aliens, section ‘Decision Reached “in Accordance with the Law”’. 125 See chapter on Article 6: The Right to Life, section ‘Arbitrariness through Inconsistency with International Law or Domestic Law’. 126 Fardon v. Australia, CCPR/C/98/D/1629/2007, 18 March 2010 [7.4]. 127 Hicks v. Australia, CCPR/C/115/D/2005/2010, 5 November 2015 [4.7] [4.10]. See also chapter on Article 9: Liberty and Security, sections ‘Arbitrariness Where Detention is Incompatible with a Covenant Provision’ and ‘Arbitrariness Where Detention is Punishment for the Legitimate Exercise of Covenant Rights, or is Discriminatory’. 128 E.g., Algeria A/47/40 (1992) 277 (derogations from Art. 12(1) in a clampdown on Islamist insurgency). 129 E.g., Nicaragua A/38/40 (1983) 232, 248 (the Committee sought justification for the transfer and relocation of 8,500 Miskito Indians during a state of emergency (constant incursions of

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criticised some for being too sweeping,130 or otherwise non-compliant with Article 4.131

A RT I C L E 1 2 ( 4 ): TH E R IG H T TO E N T E R O N E ’S O WN C O UN T RY The right to enter one’s own country under Article 12(4) includes the right to remain there (free from such measures as exile or banishment),132 to return having left (violated by visa or citizenship revocation while abroad),133 and even if never having been there before, to enter for the first time. Everything turns on that country being a person’s ‘own country’. The right to return is of the utmost importance for refugees seeking voluntary repatriation.134 Article 12(4) also

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armed band), and the circumstances under which they were allowed to leave the camps where they were resettled). Israel CCPR/CO/78/ISR (2003) 12 (concern at the sweeping nature of derogating measures including under Art. 12). E.g., Mexico CCPR/C/79/Add.32 (1994) 6 (a state of emergency was not declared in Chiapas in early 1994; guarantees in Art. 12 not respected). E.g., Iran A/37/40 (1982) 312 (exile according to law appeared to be in contradiction with the Covenant); Monaco CCPR/CO/72/MCO (2001) 18 (concern (with recommendation for repeal) that criminal legislation continued to provide for exile); Monaco CCPR/C/MCO/CO/2 (2008) 12 (assurances that banishment authorised by criminal law will be done away with); Monaco CCPR/C/MCO/CO/3 (2015) 11 (concern at the delay in the adoption of legislation to abrogate the provisions on banishment, which were entirely inconsistent with Art. 12(4)). For other comparable restrictions, see, e.g., Kuwait CCPR/CO/69/KWT (2000) 16 (Bedoons were offered a five year residence permit in exchange for renouncing any claims for naturalisation and the State sought to deport them to countries with which they had no effective links). For a specialised rights analysis of nomadism covering issues of discrimination, persecution, free dom of movement, land rights, cultural and political rights, and effective management of natural resources, see Jérémie Gilbert, Nomadic Peoples and Human Rights (Routledge, 2014). For examples of visa refusal or loss of citizenship while abroad, see Bulgaria A/34/40 (1979) 140 (a person could be deprived of nationality for illegally leaving the country, failing to return six months after the date of expiration of their passport or failing to serve the time prescribed by law in the armed forces); Chile A/34/40 (1979) 101 (temporary suspension of the right of certain Chileans to return to their country (many had committed terrorist acts or firearms offences, while others wished to return in order to engage in open opposition to the Government)); Lebanon A/38/40 (1983) 350 (Palestinians legally residing in Lebanon since 1948 had been refused renewal of their residence documents while abroad, or re entry at the Lebanese borders); Afghanistan A/40/40 (1985) 601 (report spoke of ‘former citizens’ not being per mitted to return); Chile A/40/40 (1985) 63 (a national list of persons denied the right to return to Chile was still in existence tantamount to the arbitrary restrictions prohibited by Art. 12(4)). As to the requirement of a visa to return, see Azerbaijan CCPR/C/79/Add.38 (1994) 10 (require ment of a visa to return to Azerbaijan contrary to Art. 12); Japan CCPR/C/79/Add.102 (1998) 18 (only those foreigners who leave the country with a permit to re enter were allowed to return to Japan without losing their resident status). See also UK CCPR/C/GBR/CO/6 (2008) 22 (decision of the Court of Appeal in Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (2007) indicating that the Chagos islanders were unlawfully removed from the British Indian Ocean Territory and should be able to exercise their right to return to the outer islands of their territory). GC 27 [19].

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implies prohibition of enforced population transfers or mass expulsions to other countries.135 ‘His Own Country’ In the Commission on Human Rights some States had difficulty with early drafts which referred only to the right of ‘nationals’ to ‘enter’ their country, which was intended to cover the case of a person who was born abroad who had never been to the country of their nationality. A number of countries granted the right of ‘return’ to those who were not nationals but who had established their home in the country. A compromise was reached by replacing the reference to ‘country of which he is a national’ with the words ‘his own country’.136 A number of Article 12(4) cases have turned on the meaning of this phrase, with some evident adjustment in the Committee’s approach in recent times. The author in Stewart v. Canada lived most of his life in Canada. He did not apply for citizenship when he was old enough to do so and in fact had rendered himself ineligible as a result of criminal offences committed in Canada. The permanent residency status of a non-national could be revoked under domestic law if they were convicted of a serious offence. In interpreting ‘his own country’ under Article 12(4) the Committee somewhat controversially took account of the language of Article 13, which limits the ability of States to expel ‘an alien lawfully in the territory of a State party’.137 It appeared to the Committee that ‘his own country’ applied to individuals who were nationals, and to certain categories of individuals who, while not nationals in a formal sense, were also not ‘aliens’ within the meaning of Article 13. In other words no matter how the category of non-nationals was circumscribed, those who qualified as ‘aliens’ in a country under Article 13 were excluded. This gave rise to a number of Individual Opinions, including the Dissenting Opinion of Elizabeth Evatt and Cecilia Medina Quiroga (co-signed by others), who objected to the suggestion that a person could not claim the protection of both Article 13 and Article 12(4). In their view there was nothing in the language of Article 13 to suggest that it was intended to be the exclusive source of rights for aliens, or that an alien who was lawfully within the territory of a State may not also claim the protection of Article 12(4), if it was their own country. Each provision should be given its full meaning. In approaching the Article 12(4) allegation in Stewart the Committee accepted that the term ‘his own country’ was not limited to nationality (in the formal sense of nationality acquired by birth or by conferral) but embraced, at the very least, someone who had special ties to or claims in relation to a given country and could not there be considered to be a mere alien, a principle later reflected in the Committee’s General Comment 27 (which in this respect must be considered 135 GC 27 [19]. 136 A/2929 (1955), Ch.VI [60]. 137 Stewart v. Canada, CCPR/C/58/D/538/1993, 1 November 1996 [12.3].

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outdated following the more generous approach in Nystrom v. Australia discussed below).138 An example might be a person stripped of their nationality in violation of international law, or whose country of nationality had been incorporated into or transferred to another national entity whose nationality was being denied them. That person may not be a national in the formal sense, or an alien under Article 13. The situation confronting the Committee in Stewart was of a person who entered Canada under its immigration laws, and subject to the conditions of those laws. Could he regard Canada as his own country when he had not acquired its nationality and continued to retain the nationality of his country of origin? The answer, according to the Committee then, could possibly be yes, if Canada were to place unreasonable impediments on his acquiring nationality by new immigrants. But when, as in his case, the country of immigration facilitated the acquiring of its nationality, and he refrained from taking it up, either by choice or by committing acts that would disqualify him from acquiring it, that country does not become ‘his own country’.139 In reaching that conclusion the Committee noted that while drafting Article 12(4) the term ‘country of nationality’ was (as already noted) rejected, so was the suggestion to refer to the country of one’s permanent home. This caused dissent from the majority decision by Christine Chanet who considered there to be insufficient guidance on the concept ‘his own country’ in the Covenant itself or in the travaux and exhorted the Committee either to decide the question on a caseby-case basis or establish criteria and make them known to States and authors.140 This strict approach in Stewart was maintained in Canepa v. Canada and in Madafferi v. Australia when the author in each case could not regard a country as ‘his own’ when not acquiring the nationality of that country, without unreasonable impediments to their doing so, and retaining the nationality of their country of origin.141 Almost two decades after the plea for clearer criteria in Christine Chanet’s Dissenting Opinion in Stewart, the Committee’s decision in Nystrom v. Australia provided far greater clarity on ‘his own country’ than it did in Stewart (or in its General Comment’s related text). The author’s deportation in Nystrom was, like 138 GC 27 [20]. 139 Stewart v. Canada, CCPR/C/58/D/538/1993, 1 November 1996 [12.4] [12.5]. 140 Individual Opinion by Christine Chanet, co signed by Julio Prado Vallejo (dissenting) in Stewart v. Canada. 141 Canepa v. Canada, CCPR/C/59/D/558/1993, 3 April 1997 [11.3]; Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.6]. See also Toala et al. v. New Zealand, CCPR/C/ 70/D/675/1995, 2 November 2000 [11.5], where the Committee found that the removal, by legislation, of New Zealand citizenship acquired by a Privy Council decision was not arbitrary in circumstances where the authors had no connection with New Zealand by reason of birth, descent or residence, they were unaware that they were entitled to citizenship at the time of the privy Council decision and had acquired it involuntarily, they had not visited New Zealand since that decision (except one), they had never applied for a New Zealand passport or claimed to exercise any rights as New Zealand citizens.

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that in Stewart, the result of his own criminal conduct. Under Australian migration legislation the relevant minister could cancel a visa if a person had been sentenced to a prison term of twelve months or more. The minister’s decision to deport him was made in response to his convictions for rape, intentionally causing injury and armed robbery. The author was 27 days old when he arrived in Australia, his nuclear family lived in Australia, he had no ties to Sweden (his deportation destiny) and did not speak Swedish. He never acquired Australian nationality because he thought he was an Australian citizen. He was placed under the guardianship of the State since he was 13 years old and Australia never initiated any citizenship process for all the period it acted on the author’s behalf. On the question of ‘his own country’ the Committee commented as follows, and firmly rejected the previous exclusion of those who qualify as Article 13 aliens: Individuals cannot be deprived of the right to enter ‘their own country’ because it is deemed unacceptable to deprive any person of close contact with his family, or his friends or, put in general terms, with the web of relationships that form his or her social environment. This is the reason why this right is set forth in article 12, which addresses individuals lawfully within the territory of a State, not those who have formal links to that State. For the rights set forth in article 12, the existence of a formal link to the State is irrelevant; the Covenant is here concerned with the strong personal and emotional links an individual may have with the territory where he lives and with the social circumstances obtaining in it. This is what article 12, paragraph 4, protects . . . While a person’s ‘own country’ would certainly include the country of nationality, there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. After all, a person may have several nationalities, and yet have only the slightest or no actual connections of home and family with one or more of the States in question. The words ‘his own country’ on the face of it invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain (as well as to the absence of such ties elsewhere). Where a person is not a citizen of the country in question, the connections would need to be strong to support a finding that it is his ‘own country’. Nevertheless our view is that it is open to an alien to show that there are such well established links with a State that he or she is entitled to claim the protection of article 12, paragraph 4.142

Three days after its Nystrom decision the Committee in Jama Warsame v. Canada considered Canada to be the author’s ‘own country’, noting that he arrived in Canada when he was four, his nuclear family lived in Canada, he had no ties to Somalia, where he was to be returned, he had never lived there and had difficulties speaking the language. He received his entire education in Canada and, before coming to Canada, lived in Saudi Arabia and not in Somalia. Furthermore, he did 142 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.4] [7.5].

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not have any proof of Somali citizenship. Deportation to Somalia would render his return to Canada, ‘his own country’, de facto impossible due to Canadian immigration regulations, and this would be disproportionate to the legitimate aim of preventing the commission of further crimes.143 More recently in Deepan Budlakotiv v. Canada the Committee considered the situation of the child of Indian parents who had lived in Canada for many years as diplomatic domestic servants and later acquired Canadian nationality for themselves, but not for their son, the author, because they believed that by virtue of his birth in Canada he already was a Canadian national. His deportation was proposed as a result of two convictions (one for breaking and entering, the other trafficking a firearm, for which he received custodial sentences) even though he had spent his entire life in Canada, was educated there, his parents and brother lived there and were all Canadian citizens, and his only connection to India was when he visited there for a fortnight when he was 11 years old. The Committee followed Nystrom and Warsame, to find that Canada was ‘his own country’. An important factor in his favour was that he had been issued with two passports, cementing his and his parents’ belief that he was a Canadian citizen. Had these not been issued he would have known much earlier that he was not a citizen and would have taken steps to remedy that. It was also not confirmed that he was an Indian national.144 Arbitrariness For the purposes of Article 12(4), General Comment 27 adopts literatim the Article 17 formula expressed in General Comment 16, that the concept of arbitrariness guarantees that ‘even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’.145 Under Article 12(4) there is little permissive scope, as illustrated by what follows in General Comment 27, in the observation that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State Party must not, by stripping a person of nationality or by expelling them to a third country, arbitrarily prevent them from returning to their own country. The reason lies in the nature of the right, which includes the right to remain in one’s own country, to return there after having left, even to enter for the first time, for example, if a national is born abroad. It has particular urgency in the case of 143 Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.4] [8.6]. Ryan Liss describes Warsame and Nystrom in terms of a shift to assessing belonging as a sociological fact, in ‘Right to Belong: Legal Protection of Sociological Membership in the Application of Article 12(4) of the ICCPR’, (2014) 46 N.Y.U. J. Int. L. & Pol., p. 1097, at pp. 1147 et seq. 144 Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018 [9.2] [9.3]. 145 CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 (GC 16) [4]; GC 27 [21].

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refugees seeking voluntary repatriation.146 It also comes to the aid, as already noted, of a victim of State failure to protect a national against death threats which drive them into involuntary exile (with significant adverse impact on their other freedoms),147 or the children of exiled nationals living abroad who are denied a passport.148 In Stewart v. Canada the Committee did not need to determine whether the author was ‘arbitrarily’ deprived of the right to enter his own country under Article 12(4), since it had already decided that Canada was not ‘his own country’. In relation to the Article 17 interference with family relations, which was the inevitable consequence of his deportation, the Committee did little more than conclude, after a brief examination of the lawfulness and non-arbitrariness of the deportation proceedings, that this cannot be regarded as either unlawful or arbitrary when the deportation order was made under law in furtherance of a legitimate State interest and due consideration was given in the deportation proceedings to the deportee’s family connections.149 Messrs Evatt and Quiroga, and Urbina, dissenting in Stewart, considered that the standard adopted in the General Comment 16 on Article 17 was also appropriate in the context of Article 12(4), that ‘arbitrary’ means unreasonable in the particular circumstances, or contrary to the aims and objectives of the Covenant.150 In Nystrom there was evident convergence in the principles applied to the concept of arbitrariness under Articles 12(4), 17 and 23. The Committee’s assessment of whether the decision to deport the author constituted arbitrary interference under Article 17 occurred in a combined analysis of whether there was a violation of Articles 17 and/or 23(1). It had particular regard for arbitrariness under Article 17 in the light of the disproportionate effects of family separation on the author, and the objectives of his removal. It found both provisions were violated, because of the irreparable consequences, disproportionate to the aim of preventing further crime, especially owing to the lapse of time between his committing the offences and his deportation. His deportation also meant there were few opportunities for his family (of limited financial means) to visit him in Sweden.151 (The Committee followed what it had done in Madafferi and AlGertani when Article 23 interests were also at stake, in weighing the State’s

146 GC 27 [19]. 147 Vaca v. Colombia, CCPR/C/74/D/859/1999, 25 March 2002 [7.4] (right to security of person (Art. 9(1)) was violated and that there were no effective domestic remedies allowing the author to return from involuntary exile in safety; failure to ensure to the author his right to remain in, return to and reside in his own country necessarily had a negative impact on the author’s enjoyment of the other rights ensured under the Covenant). 148 E.g., Syria CCPR/CO/71/SYR (2001) 21. 149 Stewart v. Canada, CCPR/C/58/D/538/1993, 1 November 1996 [12.10]. 150 Stewart v. Canada, CCPR/C/58/D/538/1993, 1 November 1996, Messrs Evatt and Quiroga, and Urbina (Dissenting Opinion [8]). 151 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.11].

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reasons for deporting the author against the degree of hardship that the author and the rest of his family would suffer.152) When assessing ‘arbitrariness’ under Article 12(4), the Committee recalled the text common to General Comments 16 and 27 (on Articles 17 and 12). It focused on the inordinate delay in the minister’s decision, fourteen years after the author’s conviction for rape and intentionally causing injury (nine years after his release from prison on those charges), seven years after his armed robbery conviction (and a number of years after his prison release). More importantly, this occurred when the author was in the process of rehabilitation. In the absence of any argument justifying the late character of the decision, it found his deportation to be arbitrary in violation of Article 12(4).153 Mssrs Gerald L. Neuman and Yuji Iwasawa dissented in Nystrom because (among other things) they were uncomfortable with the broadening of the criteria for establishing ‘his own country’, and incidentally observed the different standards of limitation in Article 12(3) and (4), noting that ‘the structure of the Covenant suggests, and its travaux préparatoires confirm, that Article 12(4) was carefully drafted so that this right would not be subject to the limitations on freedom of movement permitted by Article 12(3)’.154 The Committee’s approach to whether deporting the author in Budlakotiv was arbitrary under Article 12(4) reflects an added dimension. After reciting the standard proposition from General Comment 27 (that interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances), it mentioned ‘arbitrariness’ based on ‘inappropriateness, injustice, lack of predictability and due process of law’. This is more commonly applied under Articles 6 and 9 and expressed in General Comments 35 and 36 on Articles 9 and 6,155 but has occasionally been adopted in Article 17 jurisprudence in cases such as Ilyasov v. Kazakhstan where there was manifest procedural arbitrariness.156 It is not a concept that features in either of General Comments 16 or 27 (on Articles 17 and 12). There was no obvious procedural irregularity in Budlakotiv that required resort to that formula. In spite of State arguments that removing the author to India was reasonable and proportionate to the seriousness of his crimes, the Committee took account of the fact that his two convictions were not for violent offences, he 152 Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.8]. 153 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.4] [7.6]. 154 Individual Opinion of Mssrs Gerald L. Neuman and Yuji Iwasawa (dissenting) in Nystrom; referring to A/C.3/SR.954 A/C.3/SR.959 (1959). 155 General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/C/GC/35 [12]; General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36 [12], 30 October 2018. See chapter on Article 9: Liberty and Security, section ‘Reasonableness, Necessity and Proportionality’. 156 Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.2], [7.4]. See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Inappropriateness, Injustice, Lack of Predictability and Due Process of Law’.

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had not reoffended (in the eight years) since, and he claimed to have been rehabilitated. Removing him to India would therefore be disproportionate to the aim of preventing further crime.157

I M P L E M E N TAT I O N Implementation of Article 12 requires laws in full conformity with Article 12 that are transparent and coupled with the availability of effective remedies.158 It is particularly important that the terms of limitation of Article 12(3) are observed in the law itself.159 The combination of Articles 12 and 2(1) requires positive protection from the consequences of armed conflict, and the effects of certain regions within a State being rendered unsafe in a climate of extreme violence from private sources.160 It also requires resources to be expended to allow the displaced to be resettled or to return home.161 The Committee has maintained its scrutiny of Article 12 reservations, pointing out where they appear to be too sweeping,162 too vague163 or anachronistic,164 and, in the case of Belize, raising the question of incompatibility with the object and purpose of the Covenant.165 157 Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018 [9.4]. 158 E.g., Morocco CCPR/C/79/Add.113 (1999) 20 (State Party should ensure that its laws are in full conformity with Art. 12, that the laws are transparent and that effective remedies are available to enforce the rights protected by Art. 12). 159 GC 27 [12]. 160 E.g., El Salvador CCPR/C/SLV/CO/7 (2018) 33 (reports that a large number of women, children, adolescents and LGBTI have been displaced internally as a result of violence); Ethiopia CCPR/C/ETH/CO/1 (2011) 14. For whether the federal system has implemented the right to freedom of movement and residence in Ethiopia, see Yonas Girma Adimassu, Federalism vis à vis the Right to Freedom of Movement and Residence: Critical Analysis of the Law and the Practice in Ethiopian Perspective (Anchor Academic Publishing, 2015). 161 E.g., Sudan CCPR/C/SDN/CO/3 (2007) 23 (concern at the lack of resources made available to allow the displaced to return home under acceptable conditions); Colombia CCPR/C/COL/CO/ 6 (2010) 23 (concern at the very high incidence of forced displacement (over 3.3 million) with inadequate attention to their needs, marked by an insufficient allocation of resources and the lack of comprehensive measures for providing differentiated care for women, children, Afro Colombians and indigenous people); Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 16 (concern that a considerable number of refugees, returnees and internally displaced persons had still not been resettled and continued to reside in collective centres). 162 E.g., UK A/33/40 (1978) 199 (reservation considered by some Committee members to be too sweeping in respect of some inhabitants of ex dependent territories who still held British passports but did not seem to have absolute right of entry into the UK). 163 E.g., Botswana CCPR/C/BWA/CO/1 (2008) 14 (concern at the vague and extremely wide reservation entered in relation to Art. 12). 164 E.g., Italy A/44/40 (1989) 553 (the reservation on Art. 12(4) was retained for historic reasons including the prohibition of the entry into and sojourn in the territory of certain members of the House of Savoy). 165 Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 7, 8 (concern at reservations to Art. 12(2) and incompatibility with the object and purpose of the Covenant where national interests required

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C O N C L US I O N Violations of Article 12 follow different patterns across States and serve different purposes. In some countries restrictions on movement have been used to suppress political opposition and human rights accountability, for example, when journalists, human rights defenders and political opponents are prevented from travelling abroad; and when dissidents are subjected to house arrest, banishment or other forms of confinement. Limits on movement have produced restrictions on religious freedom, for example, in the denial of access to a particular place of worship. Arbitrary restrictions on religious dress have resulted in restrictions on free movement for those bound by a strict religious dress code in public. Some of the most impacting forms of restriction on freedom of movement occur by way of internal displacement in the wake of armed conflict or breakdown in the rule of law, requiring a number of protective responses from States, including the operation of collective centres, provision for return home, and until then security at those centres. Among the most serious restrictions affecting residence are residence permits and mandatory registration, which provide the platform for corruption, and result in the loss of social welfare, education and other services if permit and registration requirements are not strictly observed. Discriminatory residence measures against minorities, such as Roma, include destruction of their homes or eviction, to forcibly relocate them, although the Committee tends to address such issues primarily under Articles 17 and 23. The limitation precondition in Article 12(3), that restrictions be consistent with other Covenant rights if they are to be justified, has parallels in the Committee’s interpretation of other provisions, particularly Articles 6, 9, 13 and 27. Article 12(4) decision-making evidences a corrective but not extravagant shift away from a narrow interpretation of the ‘his own country’ requirement linked closely to nationality and which excludes aliens. It still remains the case that there are few circumstances in which deprivation of the right to enter one’s own country could be reasonable.

those intending to travel abroad to furnish tax clearance certificates, as this in practice dis proportionately restricted freedom of movement).

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Article 13: Procedural Safeguards in the Expulsion of Aliens

INTRODUCTION Page 354 AN ALIEN LAWFULLY IN THE TERRITORY OF THE STATE PARTY 359 DECISION REACHED ‘IN ACCORDANCE WITH THE LAW’ 360 THE RIGHTS TO SUBMIT REASONS AGAINST EXPULSION, AND OF REVIEW, WITH REPRESENTATION, EXCEPT WHERE COMPELLING REASONS OF NATIONAL SECURITY OTHERWISE REQUIRE 362 IMPLEMENTATION 367 CONCLUSION 367 Covenant Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. Comparable Provisions in Other International Instruments European Convention: Protocol No. 7, Article 1. American Convention on Human Rights: Article 22(6), (9). African Charter on Human and Peoples’ Rights: Article 12(4)–(5).

INTRODUCTION Procedural Safeguards not a Direct Prohibition against Arbitrary Action Article 13 provides specific safeguards to protect aliens lawfully present in a State in proceedings for their expulsion: their expulsion must be pursuant to a decision reached in accordance with law; they must be allowed to submit reasons against their expulsion; they may have their case reviewed by a competent authority (or designee); and they may be represented for that purpose. The qualification ‘except where compelling reasons of national 354

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security otherwise require’ applies to all but the requirement that the decision must be reached in accordance with law. It operates as a limitation provision. When a State relies on it the compelling reasons asserted will be subjected to strict scrutiny.1 Article 13 does not, in terms, protect against ‘arbitrary’ action (unlike Articles 6(1), 9(1), 12(4) and 17(1)), even though the drafting discussion in the Human Rights Commission proceeded on the basis that a decision to expel an alien was a most serious matter and should not be taken arbitrarily.2 However, General Comment 15 explains that by allowing only expulsions carried out ‘in pursuance of a decision reached in accordance with law’ its purpose is clearly to prevent arbitrary expulsions.3 The model for Article 13 was Article 32 of the Convention Relating to the Status of Refugees,4 as the Human Rights Commission considered it reflected the proper relationship between the interests of the State and the protection of the individual.5 Although the focus of Article 13 is on expulsion, it applies to all procedures aimed at the obligatory departure of an alien.6 Destination Country An alien who is expelled must be allowed to choose any country of destination, subject to that country agreeing to take them,7 a principle that reflects both the self-autonomy of the individual expelled and the limits on the interests of the sending State. That State must obviously also observe its obligation not to send an alien against their will to a country where they will be exposed to ‘real risk’ of ‘irreparable harm’.8 Any country that is the individual’s ‘own country’ is bound to accept them under Article 12(4).

1 Julia Wojnowska Radzińska, The Right of an Alien to be Protected against Arbitrary Expulsion in International Law (Hotei Publishing, 2015), provides an up to date analysis of the principles of international law relating to the protection of aliens against arbitrary expulsion, not just under Art. 13. 2 A/2929 (1955), Ch.VI. p. 40 [63] and heading (‘protection of aliens against arbitrary expulsion’). 3 General Comment No. 15: The Position of Aliens Under the Covenant, adopted at the Twenty seventh Session of the Human Rights Committee, on 11 April 1986 (GC 15) [10]. 4 Convention Relating to the Status of Refugees, 28 July 1951, UNTS vol. 189, p. 137, adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held at Geneva, 2 25 July 1951, entered into force 22 April 1954. 5 A/2929 (1955), Ch.VI. p.40 [64]. Art. 32(2) reads: ‘The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compel ling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.’ 6 GC 15 [9]. 7 GC 15 [9]. 8 See chapters on Article 6: The Right to Life, section ‘Obligations on Expulsion or Extradition’; Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Obligations on Expulsion or Extradition’.

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Mass Expulsion of Aliens Article 13 does not include an express provision concerning the expulsion of aliens, even though certain regional instruments do.9 Collective or mass expulsions are nevertheless precluded by the entitlement of each alien to an individual decision, and the separate Article 13 rights to submit reasons against expulsion, and to have the decision reviewed.10 Asylum and Extradition Provisions addressing asylum and extradition were discussed in the preparatory stages, and although various drafting proposals were tabled all were rejected.11 There was consensus that the right of asylum was a fundamental right (included in Article 14 of the Universal Declaration), but many questioned the advisability of attempting to translate this into a positive obligation in the Covenant, especially if it prevented later expulsion of undesirable aliens given national security risks. There were also concerns about the material and economic consequence for States facing an influx of large numbers of refugees. Attempts to specify those who should be granted asylum (particularly those facing political persecution) produced categories which were criticised for being too vague and difficult to define, and open to diverse interpretation across States.12 Efforts at addressing extradition foundered too, largely because of the prevailing view that extradition was a corollary to fundamental human rights, and that only such rights themselves should be the subject matter of the Covenant. Also, the text would at best lay down only general principles, would be too complicated for a single provision, and would have to grapple with the relationship between the Covenant and existing treaty arrangements. The categories of those who should be exempt from extradition were similar to those proposed for the rights of asylum, which rekindled the asylum-related criticisms in this context too.13 The result is that Article 13 applies in a general way, and covers expulsion for the particular purpose of extradition. States are fully entitled to protect their territory vigorously against the menace of serious crime by entering into extradition treaties with other States. However, practice under such treaties must comply with Article 13.14 9 European Convention, Protocol 4, Art. 4; American Convention on Human Rights, Art. 22(9); African Charter on Human and Peoples’ Rights, Art. 12(5). 10 GC 15 [10]. For examples of concern at mass expulsions, see Mongolia CCPR A/41/40 (1986) 251; Dominican Republic CCPR/CO/71/DOM (2001) 16; Thailand CCPR/CO/84/THA (2005) 17; Italy CCPR/C/ITA/CO/5 (2006) 15; Libya CCPR/C/LBY/CO/4 (2007) 18; Malta CCPR/C/ MLT/CO/2 (2014) 17; Morocco CCPR/C/MAR/CO/6 (2016) 36 (collective arrests and mass expulsions of migrants); Serbia CCPR/C/SRB/CO/3 (2017) 32; Algeria CCPR/C/DZA/CO/4 (2018) 37; Hungary CCPR/C/HUN/CO/6 (2018) 47; Sudan CCPR/C/SDN/CO/5 (2018) 54. 11 A/2929 (1955), Ch.VI, p. 40 [62]. 12 A/2929 (1955), Ch.VI, pp. 40 41, [62], [65] [68]. 13 A/2929 (1955), Ch.VI, pp. 40 41, [62], [71] [72]. 14 Giry v. Dominican Republic, Communication No. 193/1985, Supp. No. 40 (A/45/40) at 38 (1990), 20 July 1990 [5.5]. See also García v. Ecuador, CCPR/C/43/D/319/1988,

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Extradition itself does not fall outside the protection of the Covenant.15 Although the Covenant does not require that extradition procedures be judicial in nature, where the judiciary is involved in determining extradition matters: it must respect the principles of impartiality, fairness and equality, as enshrined in article 14, paragraph 1, and also reflected in article 13 of the Covenant . . . While article 14, paragraph 1, does not as such give persons subject to extradition access to a court or tribunal, nevertheless, whenever domestic law entrusts a judicial body with a judicial task, the first sentence of article 14, paragraph 1, guarantees in general terms the right to equality before courts and tribunals and thus the principles of impartiality, fairness and equality, as enshrined in that provision must be respected.16

In many domestic systems expulsion does involve judicial decisions, and Article 14 will apply in the way just described. For example, the Committee has been concerned at unfairness resulting from confidential information being used in expulsion decisions to which the individual concerned has no access, and from other unequal access to documents.17 Interaction between Article 13 and Other Covenant Provisions A range of Covenant rights aid the safeguards in Article 13. The need for compatibility with the provisions of the Covenant, noted below,18 requires that relevant provisions of domestic law establishing the necessary safeguards against expulsion must not be discriminatory, contrary to Articles 2, 3 or 26;19 or authorise expulsion to a destination where the alien would be exposed to ‘real

15 16

17 18 19

5 November 1991 [5.1]. Joanna Harrington is critical of the failure of the Supreme Court of Canada and the House of Commons to acknowledge this international extradition jurisprudence in domestic extradition proceedings, in ‘The Absent Dialogue: Extradition and the International Covenant on Civil and Political Rights’, (2006) 32 Queen’s L.J., p. 82. See section ‘Interaction between Article 13 and Other Covenant Provisions’, below (Arts 6, 7, 9 and 13, are necessarily applicable). Everett v. Spain, CCPR/C/81/D/961/2000, 9 July 2004 [6.4]; Griffiths v. Australia, CCPR/C/112/ D/1973/2010, 21 October 2014 [6.5]; chapter on Article 14: Fair Trial Rights, section ‘Distinctions Between the Right to Equality before the Courts and Tribunals, and to a Fair and Public Hearing’. Sweden CCPR/C/SWE/CO/6 (2009) 17. See also Bulgaria CCPR/C/BGR/CO/3 (2011) 16 (access to personal files). See section ‘Decision Reached “in Accordance with the Law”’, below. E.g., UK A/34/40 (1979) 316 (querying whether extending a British Virgin Islands deportation order to the wife and children of the alien would not constitute discrimination based on sex); Luxembourg CCPR A/41/40 (1986) 66 (procedure for appealing an expulsion order appeared to favour nationals of Member States of the European Economic Community instead of applying equally to all aliens); Israel CCPR/C/ISR/CO/4 (2014) 20 (concern about the very low refugee recognition rate of Eritreans and South Sudanese); Liechtenstein CCPR/C/LIE/CO/2 (2017) 31, 32 (concern about the cancellation of the residence permits of those reliant on social benefits above a certain threshold, unless they had been living continuously there for fifteen years or more, and the unfair impact on those in genuine need).

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risk’ of ‘irreparable harm’ (Articles 2, 6 and 7);20 or result in family separation (in violation of Articles 17 and 23).21 The detention of migrants and asylum seekers is primarily an Article 9 issue, but in connection with Article 13 the Committee has commented (in the light of Article 9) that such detention should always be reasonable, necessary and proportionate in the light of individual circumstances; should be for the shortest period of time; and be a measure of last resort, when existing alternatives to administrative detention have been duly considered and deemed not appropriate.22 It has demonstrated particular concern at lengthy, indefinite or mandatory detention, or the absence of a maximum period of detention;23 and at systematic detention of migrants on arrival.24 The Committee often raises conditions of detention of migrants.25 Articles 13 and 24 are enlivened by procedural shortcomings in the measures of protection required for children,26 and the Committee is concerned at procedures and practices which increase the vulnerability of migrants, or which render them stateless.27

20 See ‘Introduction’, above. Article 23: Protection for the Family, section ‘Family Separation and Reunification’. 21 See chapters on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Family Separation on Deportation’; Article 23: Protection for the Family, section ‘Family Separation and Reunification’. For the claim that Australian migration legislation violates Art. 13 (and other provisions), see Saul, ‘Indefinite Security Detention and Refugee Children and Families in Australia’, p. 55. 22 E.g., Malta CCPR/C/MLT/CO/2 (2014) 16; Czech Republic CCPR/C/CZE/CO/3 (2013) 17; Sweden CCPR/C/SWE/CO/7 (2016) 32. 23 E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 28; Australia CCPR/C/AUS/CO/6 (2017) 37; Dominican Republic CCPR/C/DOM/CO/6 (2017) 23. 24 E.g., Malta CCPR/C/MLT/CO/2 (2014) 16. 25 E.g., Italy CCPR/C/ITA/CO/5 (2006) 15; Austria CCPR/C/AUT/CO/4 (2007) 17; France CCPR/ C/FRA/CO/4 (2008) 18; Hungary CCPR/C/HUN/CO/5 (2010) 15; Australia CCPR/C/AUS/CO/ 6 (2017) 37; Norway CCPR/C/NOR/CO/7 (2018) 30. 26 E.g., Austria CCPR/C/AUT/CO/4 (2007) 18 (reports that children were treated in the same way as adults in the asylum procedure); Lebanon CCPR/C/LBN/CO/3 (2018) 37 (reports of expulsion of children without due process). 27 E.g., Ghana CCPR/C/GHA/CO/1 (2016) 33; Kuwait CCPR/C/KWT/CO/3 (2016) 48; Morocco CCPR/C/MAR/CO/6 (2016) 35; South Africa CCPR/C/ZAF/CO/1 (2016) 34; Dominican Republic CCPR/C/DOM/CO/6 (2017) 25; Italy CCPR/C/ITA/CO/6 (2017) 22; Madagascar CCPR/C/MDG/CO/4 (2017) 47; Mauritius CCPR/C/MUS/CO/5 (2017) 37; Thailand CCPR/C/ THA/CO/2 (2017) 41; Bahrain CCPR/C/BHR/CO/1 (2018) 61; Gambia CCPR/C/GMB/CO/2 (2018) 45; Norway CCPR/C/NOR/CO/7 (2018) 34. Note also the Convention Relating to the Status of Stateless Persons, 28 September 1954, UNTS vol. 360, p. 117, entered into force 6 June 1960; and the Convention on the Reduction of Statelessness, 30 August 1961, UNTS, vol. 989, p. 175, entered into force 13 December 1975. Weissbrodt’s, The Human Rights of Non citizens is a work spanning the full range of rights of non citizens (not just concerning expulsion), and points to the disparity between the rights guaranteed and the realities individuals face. For the rights of stateless persons see pp. 79 109. For an early survey of the rights of non citizens, see Sharryn Aiken and Tom Clark, ‘International Procedures for Protecting the Human Rights of Non Citizens’, (1994) 10 JLSP, p. 182.

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Certain procedures by their nature may lead to multiple shortcomings in Article 13 safeguards, such as Latvia’s ‘accelerated procedure’;28 Australia’s speedy ‘on water’ assessments and ‘fast track’ assessment process for illegal maritime arrivals;29 and Slovenia’s simplified and expedited processing procedure for those arriving from ‘safe countries’.30

A N AL I E N L AWF U L LY I N TH E T E R R I TO RY O F T H E S TAT E PA RTY Article 13 applies to an alien ‘lawfully in the territory of the State Party’.31 The term ‘alien’ refers generally to ‘non-nationals’,32 and includes refugees under the Refugee Convention (as is evident from the drafting history), stateless persons and nationals of other countries. As with Article 12(1) and (2), it does not guarantee a right to enter or reside in any State.33 The Committee established in Maroufidou v. Sweden that a Greek citizen who came to Sweden seeking asylum, and the following year was granted a residence permit, was ‘lawfully in the territory’ for Article 13 purposes when the question of her expulsion subsequently arose as a result of suspicion of her being involved in a plan to abduct a former member of the Swedish Government.34 Articles 12 and 13 each benefit everyone ‘lawfully within the territory of a State’ and similar principles to those under Article 12 apply to determine an alien’s lawful presence under Article 13.35 The lawfulness of an alien’s presence is in large part determined by domestic requirements for entry and stay, and General Comment 15 warns that illegal 28 Latvia CCPR/C/LVA/CO/3 (2014) 14. 29 Australia CCPR/C/AUS/CO/6 (2017) 33. 30 Slovenia CCPR/C/SVN/CO/3 (2016) 15. 31 Cf. Jamaica A/36/40 (1981) 266 (the procedural safeguards required by Art. 13 appeared to apply only to persons ordinarily resident in Jamaica continuously for a period of five years). 32 Nowak, CCPR Commentary, p. 292. 33 For an examination of Covenant rights which apply in spite of State prerogative in deciding which aliens are refused entry at the border, see Tamás Molnár, ‘Limitations on the Expulsion of Aliens Imposed by the International Covenant on Civil and Political Rights: A Retrospect of 50 Years’, (2017) Hun. Yb. I.L.E.L., pp. 83 104. The International Law Commission’s Draft Articles on the Expulsion of Aliens provides what Gerald Neuman describes as an ‘uncertain guide to the human rights standards that limit states’ conduct in the expulsion of aliens’: Gerald L. Neuman, ‘Human Rights and the International Law Commission’s Draft Articles on the Expulsion of Aliens’, (2017) 30 Harv. H.R. J., p. 3. Draft Art. 26 concerns procedural rights and is of greatest relevance to Covenant Art. 13. For coverage of draft Art. 26, see Won Kidane, ‘Missed Opportunities in the International Law Commission’s Final Draft Articles on the Expulsion of Aliens’, (2017) 30 Harv. H.R. J., p. 77. 34 Maroufidou v. Sweden, CCPR/C/12/D/58/1979, 9 April 1981 [9.2]. 35 See chapter on Article 12: Freedom of Movement of the Person, section ‘Everyone Lawfully within the Territory of a State. In Celepli v. Sweden, CCPR/C/51/D/456/1991, 18 July 1994 [9.2], the Committee only examined the author’s Art. 12 claim and found that even after an expulsion order had been issued, he was lawfully in Sweden for purposes of Art. 12(1) because he had been allowed to stay, albeit on terms restrictive of his freedom of movement.

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entrants and aliens who have stayed longer than the law or their permits allow are not covered by Article 13. However, if the legality of their presence is disputed, any decision leading to expulsion ought to be taken in accordance with Article 13. It is for the competent domestic authorities, in good faith and in the exercise of their powers, to apply and interpret the domestic law, observing such requirements under the Covenant as equality before the law,36 among other applicable Covenant provisions. Article 12(4) prohibits the arbitrary deprivation of the right to enter one’s own country. As a result of recent developments in the Committee’s jurisprudence, the formal status as an alien within a State does not automatically preclude that State from being the person’s ‘own country’, where the close and enduring connections with the country are sufficiently strong.37 For an alien in that circumstance Articles 12(4) and 13 offer concurrent protection against expulsion from ‘his own country’.

D E C I S I O N R E A CH E D ‘ I N A C C O R DA N C E W I T H T H E LAW’ It was proposed in the drafting of Article 13 that it should state that the grounds for expulsion must have ‘a legal basis’ and should also provide that the procedure to be followed must be ‘prescribed by law’. The idea that the grounds for expulsion must be ‘in accordance with the law’ was accepted,38 dispensing with the stricter ‘prescribed by law’ requirement found elsewhere in the Covenant. Maroufidou v. Sweden is an influential case that established several important principles concerning this requirement. The author alleged that the authorities had misinterpreted Swedish law, and the only question was whether the expulsion was ‘in accordance with law’. The Committee commented that the reference to ‘law’ is to the domestic law of the State concerned, though the relevant provisions of domestic law must in themselves be compatible with the provisions of the Covenant. Also, Article 13 requires compliance with both the substantive and the procedural requirements of the law. Consistent with the restraint shown by the Committee in reference to other Covenant provisions,39 it observed that the interpretation of domestic law is essentially a matter for the courts and authorities of that State, and it is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State have interpreted and applied the domestic law correctly, unless it is established that they have not 36 GC 15 [9]. 37 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.4] [7.5]; chapter on Article 12: Freedom of Movement of the Person, section ‘His Own Country’. 38 A/2929 (1955), Ch.VI, p. 40 [63]. 39 See chapter on Article 15: Retroactive Criminal Law, section ‘Review of Domestic Interpretation and Application of the Law’.

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interpreted and applied it in good faith or that it is evident that there has been an abuse of power. It concluded that the decision was made ‘in accordance with the law’ because it was satisfied that in reaching the decision to expel the author the authorities interpreted and applied the relevant provisions in good faith and in a reasonable manner.40 Neither Article 13 nor General Comment 15 describe the properties required of the law. If the phrase ‘in pursuance of a decision reached in accordance with law’ is to play a part in preventing ‘arbitrary’ expulsions, as General Comment 15 suggests,41 the Committee’s approach under Articles 6(1), 9(1), 12(4) and 17(1) may be instructive (with due reference to the different terms of each and to the relatively confined parameters of Article 13). Articles 6 and 9(1), respectively, require the right to life to be protected ‘by law’, and any deprivation of liberty to be ‘on such grounds and in accordance with such procedure as are established by law’. In both cases, any substantive ground for interference must be prescribed by law, and defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.42 The Article 13 condition that an expulsion decision be reached ‘in accordance with law’ is weaker, but it is intended to serve a protective purpose against arbitrariness.43 Articles 6(1) and 9(1) separately prohibit ‘arbitrary’ deprivation of life and of liberty. Under both Articles 6 and 9 arbitrariness includes elements of ‘inappropriateness, injustice, lack of predictability, and due process of law as well as elements of reasonableness, necessity, and proportionality’,44 which in principle are close to the rationale of Article 13. Both Articles 6 and 9 also invoke the concept of Covenant compatibility, as does Article 13 following Maroufidou;45 and Covenant ‘consistency’ is an express condition of permissibility found in the text of Article 12(3) for restrictions on the rights of free movement and to leave a country.46 Less explicitly but importantly, for the purposes of Articles 12(4) and 17 ‘even interference provided for by 40 Maroufidou v. Sweden, CCPR/C/12/D/58/1979, 9 April 1981 [9.3] [10.2]. 41 GC 15 [10]. 42 General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36, 30 October 2018 (advance unedited version) (GC 36) [19]; General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/C/GC/35 (GC 35) [22]. 43 On the requirement, see, e.g., Korea (DPRK) CCPR/CO/72/PRK (2001) 21 (regret that there is no law, or formal procedure, governing the expulsion of aliens); Uzbekistan CCPR/CO/83/UZB (2005) 12 (concern that there is no law governing expulsion of foreigners from Uzbekistan). 44 GC 36 [12]; GC 35 [12]. Note also GC 36 [11]; GC 35 [11]: under Art. 6, ‘a deprivation of life that lacks a legal basis or is otherwise inconsistent with life protecting laws and procedures is, as a rule, arbitrary in nature’; under Art. 9, ‘arrests or detentions may be in violation of the applicable law but not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful arrest or detention that lacks any legal basis is also arbitrary’. 45 See chapters, Article 6: The Right to Life, section ‘Arbitrariness through Inconsistency with International Law or Domestic Law’; Article 9: Liberty and Security, section ‘Arbitrariness Where Detention is Incompatible with a Covenant Provision’. 46 Chapter on Article 12: Freedom of Movement of the Person, section ‘Consistency with the Covenant’.

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law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’.47 The requirement that an expulsion should occur only ‘in pursuance of a decision reached in accordance with law’ may therefore draw on the Committee’s parallel jurisprudence under the above provisions, particularly insofar as it concerns the ‘in accordance with the law’ stipulation, and subjects to scrutiny the manner in which the safeguards discussed below are implemented. The Committee has pointed out instances of expulsions being permitted by law in Norway without consideration of the merits,48 and was critical of the stringent citizenship criteria which Latvia established by law, in combination with a policy of delay in the naturalisation process, which gave room to discrimination under Articles 2 and 26 and raised difficulties under Articles 13 and 17.49

T H E RI G H T S TO S U B M I T R E A S O N S A G A I N S T E XP U L S I O N , A N D O F R E V I E W, W I T H R E P R E S E N TAT I O N , EX C E P T W H E R E C O M P E L LI N G R E A S O N S O F N ATI O N A L S E C U R I T Y O T H E RW I S E REQUIRE Submit Reasons The right to be allowed to submit reasons against expulsion is similar in substance to the right to ‘be allowed to submit evidence to clear himself’ in the Refugee Convention, but is not comparable to the right in Article 14(1) to a public hearing (which applies both to criminal and certain civil proceedings), or the right in criminal proceedings under Article 14(3)(d) to trial in the accused’s presence.50 Ahani v. Canada concerned the right to be allowed to submit reasons under Article 13, in connection with a decision addressing the serious risk of harm on deportation. The domestic decision which led to the claim before the Committee was heard on 47 Chapter on Article 12: Freedom of Movement of the Person, section ‘Arbitrariness’. 48 Norway CCPR/C/NOR/CO/7 (2018) 32 (legislative amendments allowed asylum applications to be rejected without consideration of their merits, on the grounds that an asylum seeker has entered the State Party after having stayed in a country in which they were not persecuted). In other instances, the criticism is directed more at policy than deficiencies in the law, e.g.: Slovenia CCPR/C/SVN/CO/3 (2016) 15 (response to recent influx of asylum seekers and migrants included policy limiting entry solely on the basis of nationality and possession of identification documents, rather than on an individual assessment); Lebanon CCPR/C/LBN/CO/3 (2018) 37 (reports of the prolonged detention of asylum seekers and refugees other than Syrian nationals, including of children, without due process, and their expulsion). See also Spain CCPR/C/ESP/ CO/5 (2009) 16 (concern at reports that some decisions on the expulsion of foreigners are arbitrary). 49 Latvia CCPR/C/79/Add.53 (1995) 17. 50 See chapter on Article 14: Fair Trial Rights, sections Article 14(1): ‘Public Hearing’; ‘Article 14(3)(d): Trial in the Accused’s Presence, Right to Defence, with Legal Assistance (Either of Choice or if Required) Without Cost if of Insufficient Means’.

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the same day in Canada as its companion case (Suresh v. Canada) in which the plaintiff established a prima facie risk of torture. Under domestic law that plaintiff was thereby entitled to enhanced procedural protections, including access to all information and advice on which the competent minister intended to rely, an opportunity to address the evidence in writing, and written reasons by the minister. Mr Ahani, by contrast, did not make out a prima facie case, according to the national court, and was denied these protections. The Committee found a violation of Article 13, in conjunction with Article 7, because this did not satisfy the obligation in Article 13 to allow the author to submit reasons against his removal in the light of the case against him, and to have his submissions reviewed by a competent authority, with the ability to comment on the material relied on in reaching the decision against him (the procedural protections afforded to the plaintiff in Suresh in Suresh).51 Case Review The right to case review does not require appeal to a court but a ‘competent authority’. Article 13 offers some of the protection afforded by Article 14(1) (as already noted) but not the right of review within Article 14(5).52 In the Third Committee, deliberations on text allowing review by a delegated administrative authority resulted in retention of the words ‘or a person or persons especially designated by the competent authority’.53 In Saxena v. Canada the Committee found a violation of Article 13 in the procedure followed by authorities in Canada and Thailand after the author had been extradited to Thailand, because it adversely impacted the right of review. In the extradition process assurances were given by Thailand to Canada that he would not face further charges following his surrender. Thai authorities later sought to prosecute him on charges unrelated to those for which he had been extradited, which were not listed in the original extradition request and surrender order. They therefore requested Canada’s consent for this, which was given by waiving the so-called ‘specialty rule’ (that the author would not be tried in 51 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [2.8], [2.9], [10.8]. Cf. Z.B. v. Hungary, CCPR/C/123/D/2768/2016, 19 July 2018 [10.6] (the author was denied the oppor tunity to submit reasons against her expulsion and to be represented, but not further addressed because she was granted refugee status). 52 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.5] (the Committee also observed that the Covenant does not, as of right, provide for a right of appeal beyond criminal cases to all determinations made by a court); X v. Denmark, CCPR/C/112/D/2186/2012, 22 October 2014 [6.3] (Art. 14 claim that the decisions of the Refugee Board could not be appealed to court inadmissible ratione materiae); S.Z. v. Denmark, CCPR/C/120/D/2625/2015, 25 June 2015 [7.12]; A & B v. Denmark, CCPR/C/117/D/2291/2013, 13 July 2016 [7.3]; I.A.K. v. Denmark, CCPR/C/118/D/2115/2011, 3 November 2016 [9.5]; M.P. v. Denmark, CCPR/C/121/D/2643/2015, 9 November 2017 [7.4]; H.A. v. Denmark, CCPR/C/123/D/2328/ 2014, 9 July 2018 [8.5]; K.H. v. Denmark, CCPR/C/123/D/2423/2014, 16 July 2018 [7.5]. 53 A/4299 (1959), p. 8 [26].

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Thailand for offences other than those for which he was extradited). The basis of the successful Article 13 claim was that Canada did not ask for the author’s views on the request for consent, and there was no judicial scrutiny of the reasons for granting a waiver of specialty since none was available in Canada (consent to waive the specialty rule was granted by the Ministry of Justice, without judicial review and in the absence of other due process guarantees).54 On the subject of diplomatic assurances, the Committee has stressed in Concluding Observations the need for each State to ensure the appropriate, effective and independent post-transfer monitoring of individuals with the benefit of diplomatic assurances; to refrain from relying on such assurances when it is not in a position to monitor effectively the treatment of those concerned after their extradition, expulsion, transfer or return to other countries; and to take appropriate remedial action when assurances are not fulfilled.55 There is inevitable Committee concern at anything which precludes appeal against an expulsion order,56 including power to expel summarily;57 or which renders an appeal harder, such as short time limits for lodging appeals against expulsion decisions;58 or where the appeal process is flawed because of lack of an independent authority to hear the appeal.59 Overriding the suspensive effect of an appeal is also not in keeping with Article 13.60 Concluding Observations occasionally speak of an ‘effective right to be heard’ in expulsion proceedings.61 That the right to representation is confined to representation when appealing the expulsion decision is indicated by the terms of Article 13, and Article 32 of the Refugee Convention, which refer to the right ‘to appeal to and be represented for the purpose before the competent authority’. Nevertheless, the Committee’s concern with reference to Article 13, that States ensure proper legal representation, is not confined to appeals against expulsion decisions but extends to early stages in the process of applying for international protection.62 This is in keeping with the principle that all detainees should have access to counsel. 54 Saxena v. Canada, CCPR/C/118/D/2118/2011, 3 November 2016 [11.4] [11.8], [12]. 55 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 44. See also Kazakhstan CCPR/C/KAZ/CO/1 (2011) 13 and Russian Federation CCPR/C/RUS/CO/6 (2009) 17. 56 E.g., Venezuela A/36/40 (1980) 55; Gambia A/39/40 (1984) 333. 57 E.g., Ireland CCPR/C/IRL/CO/3 (2008) 19; Mexico CCPR/C/MEX/CO/5 (2010) 17; Hungary CCPR/C/HUN/CO/6 (2018) 47 (‘pushback’ law allowed summary expulsion). 58 E.g., Chile CCPR/C/CHL/CO/6 (2014) 23; Ukraine CCPR/C/UKR/CO/7 (2013) 18. 59 E.g., Japan CCPR/C/JPN/CO/5 (2008) 25; Greece CCPR/C/GRC/CO/2 (2015) 29; Rwanda CCPR/C/RWA/CO/4 (2016) 29. 60 E.g., Austria A/38/40 (1983) 189; Finland CCPR/CO/82/FIN (2004) 12; Estonia CCPR/CO/77/ EST (2003) 13; Belgium CCPR/CO/81/BEL (2004) 23 (establish clear rules in its legislation to govern appeals against expulsion orders); Libya CCPR/C/LBY/CO/4 (2007) 18; France CCPR/ C/FRA/CO/4 (2008) 20; Azerbaijan CCPR/C/AZE/CO/3 (2009) 9; Japan CCPR/C/JPN/CO/6 (2014) 19; Latvia CCPR/C/LVA/CO/3 (2014) 14; Greece CCPR/C/GRC/CO/2 (2015) 30. 61 E.g., El Salvador CCPR/C/SLV/CO/6 (2010) 17. 62 E.g., Japan CCPR/C/JPN/CO/5 (2008) 25; Switzerland CCPR/C/CHE/CO/3 (2009) 18; Chile CCPR/C/CHL/CO/6 (2014) 23; Malta CCPR/C/MLT/CO/2 (2014) 17; Ukraine CCPR/C/UKR/

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Compelling Reasons of National Security If compelling reasons of national security so require, an alien may be denied the right to submit reasons against expulsion and of case review. In Karker v. France the author was co-founder of the political movement Ennahdha who fled Tunisia, where he had been sentenced to death by trial in absentia and was recognised by French authorities as a political refugee. Under suspicion that he actively supported a terrorist movement the relevant minister ordered his expulsion as a matter of urgency. He was afforded the right of review but his appeal was rejected, among other reasons because the ministry was in possession of information showing that he maintained close links with Islamic organisations which used violent methods. He was not allowed to submit reasons against his expulsion before the order was issued, but the Committee supported the State’s reliance on compelling reasons of national security.63 The opportunity to submit reasons and to have one’s case reviewed are sometimes denied because of the manner and urgency of deportation. Hammel v. Madagascar concerned a French attorney who had practised in Madagascar for nineteen years defending political opponents and political prisoners. He was arrested, taken to a basement cell and kept in incommunicado detention, until three days later he was notified of an expulsion order against him. That same day he was taken under guard to his home, where he had two hours to pack his belongings, and was deported to France. The State pointed to the existence of the right in domestic law to request a case review, and noted that the author did not make such a request; he instead used an administrative remedy by applying to the relevant minister after he was expelled. The Committee based its finding of violation of Article 13 in his not being ‘afforded an opportunity to challenge the expulsion order prior to his expulsion’,64 referring to the statement in General Comment 15 that ‘[a]n alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one’.65 Similarly, in Cañón García v. Ecuador the swiftness of the State’s action in removing the author from Ecuadorian jurisdiction (he was immediately made to board a plane bound for the United States, among numerous irregularities) precluded him from submitting reasons against his expulsion and having his case reviewed.66 On the national security exception, in Hammel v. Madagascar the domestic proceedings which related to his ex post application to have the expulsion order revoked upheld the validity of the expulsion order, on the grounds that the author CO/7 (2013) 18; Austria CCPR/C/AUT/CO/5 (2015) 27, 28; Greece CCPR/C/GRC/CO/2 (2015) 30; Korea CCPR/C/KOR/CO/4 (2015) 36; Australia CCPR/C/AUS/CO/6 (2017) 34. 63 Karker v. France, CCPR/C/70/D/833/1998, 26 October 2000 [2.1], [9.3]. 64 Hammel v. Madagascar, CCPR/C/29/D/155/1983, 3 April 1987 [8.3], [18.2], [19.2]. 65 GC 15 [10]. 66 García v. Ecuador, CCPR/C/43/D/319/1988, 5 November 1991 [2.4], [5.1].

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had made ‘use both of his status as a corresponding member of Amnesty International and of the Human Rights Committee [sic] at Geneva, and as a barrister’ to discredit Madagascar. This caused the Committee to observe that ‘it would be both untenable and incompatible with the spirit of the [Covenant and OP1] if States parties to these instruments were to take exception to anyone acting as legal counsel for persons placing their communications before the Committee’.67 Any Covenant incompatibility of measures which limit the right to submit reasons and the right of review under Article 13 is likely to prevent any ‘reasons of national security’ advanced by the State from being treated as ‘compelling’. The security threat posed by the author in Giry v. Dominican Republic, as someone who was sought for extradition by the United States for drug trafficking, led Dominican authorities to detain him for nearly three hours when he appeared at the airport, and to deport him to the United States by force, preventing him from taking his intended flight to Saint-Barthelemy. His Article 13 claim elicited the State assertions that the national security exception in Article 13 permits summary expulsions, that ‘any sovereign State is entitled to take the necessary steps to protect national security, public order, and public health and morals’, and that ‘its actions must be understood in the context of the international efforts to apprehend persons involved in the illegal traffic of drugs, which must be seen as an international crime subject to universal jurisdiction’. In extraditing him in such circumstances the author was not afforded the right to submit reasons or of review, prompting the Committee to stress that ‘States are fully entitled to protect their territory vigorously against the menace of drug dealing by entering into extradition treaties with other States. But practice under such treaties must comply with article 13.’ It was also an important factor that the author was intending to leave the Dominican Republic at his own volition for another destination.68 Examples of domestic arrangements inconsistent with this requirement include discretionary power of a competent minister to order the expulsion of any alien, without safeguards, if security and the ‘public interest’ so require;69 expulsion before an appeal has been adjudicated if the person is regarded as posing a threat to ‘national security or public order and safety’,70 or a threat in terms of ‘national security or public policy’;71 or where the State does not assume the obligation of justifying administrative decisions relating to expulsions.72 67 Hammel v. Madagascar, CCPR/C/29/D/155/1983, 3 April 1987 [18.2], [19.2], [19.3], [20]. 68 Giry v. Dominican Republic, Communication No. 193/1985, Supp. No. 40 (A/45/40) at 38 (1990), 20 July 1990 [4.3], [4.4], [5.5]. 69 Syria CCPR/CO/71/SYR (2001) 22. 70 Latvia CCPR/C/LVA/CO/3 (2014) 14. 71 Lithuania CCPR/C/LTU/CO/3 (2012) 13. 72 Monaco CCPR/CO/72/MCO (2001) 16. For other possible indications of this phenomenon, see Czechoslovakia A/33/40 (1978) 125 (‘any other public interest’); UK A/33/40 (1978) 200 (‘public good’ and ‘reasons of a political nature’); Cyprus A/34/40 (1979) 380, 385 (‘public interest’); Spain A/34/40 (1979) 217 (‘danger to society’); Senegal A/35/40 (1980) 208, 228

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I M P L E M E N TAT I O N Issues of implementation raised with States include the lack of domestic law governing the expulsion of aliens;73 the absence of a national legal framework for determining refugee status or of a national mechanism on statelessness;74 vagueness and uncertainty surrounding the procedures for determining refugee or asylum seeker status;75 and lack of appropriate guarantees against return,76 which may lead to arbitrary implementation.77 On many occasions, as an Article 13 matter, the Committee has reminded States of the need to enforce strictly a prohibition of deportation contrary to Articles 6 and 7, to avoid Covenant incompatibility.78 It has also recommended proper referral procedures and training for border officials to equip them to make accurate determinations of refugee status at border points.79 The Committee has, as usual, questioned the need for Article 13 reservations;80 it has recommended their withdrawal in whole or part;81 it has commented that no convincing reasons had been offered for particular reservations and suggested they may be obsolete;82 but has been particularly concerned where the reservation seriously affects the application of Article 13 in relation to decision-making procedures.83

C O N C L US I O N Article 13 is not, in terms, directed against arbitrary expulsion, although the phrases ‘in accordance with law’ and ‘compelling reasons of national security’

73 74 75 76 77 78 79 80 81 82 83

(‘general conduct and actions’ and by the ‘serious and evident interference’ of an alien); Denmark A/36/40 (1981) 88, 98 (‘activities of a hostile character’); Italy A/36/40 (1981) 120, 141 (‘offence against the personality of the State’); Iceland A/38/40 (1983) 109 (‘interest of the State’ and ‘other reasons’ making the presence of an alien undesirable). E.g., Korea (DPRK) CCPR/CO/72/PRK (2001) 21; Uzbekistan CCPR/CO/83/UZB (2005) 12. See also Venezuela CCPR/CO/71/VEN (2001) 15 (lack of national legislation establishing selection criteria for asylum seekers). E.g., Mauritius CCPR/C/MUS/CO/5 (2017) 37. On statelessness, see also Ghana CCPR/C/GHA/ CO/1 (2016) 33. E.g., Cameroon CCPR/C/CMR/CO/5 (2017) 35. See also South Africa CCPR/C/ZAF/CO/1 (2016) 34 (difficulties in accessing the procedure for determining refugee status). E.g., Barbados CCPR/C/BRB/CO/3 (2007) 10; Australia CCPR/C/AUS/CO/6 (2017) 33; Thailand CCPR/C/THA/CO/2 (2017) 28; Sudan CCPR/C/SDN/CO/5 (2018) 54. E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 36. E.g., Azerbaijan CCPR/C/AZE/CO/3 (2009) 9; HK SAR CCPR/C/CHN HKG/CO/3 (2013) 9; Canada CCPR/C/CAN/CO/6 (2015) 13; Cyprus CCPR/C/CYP/CO/4 (2015) 13; Russian Federation CCPR/C/RUS/CO/7) (2015) 15; Jordan CCPR/C/JOR/CO/5 (2017) 25. Kazakhstan CCPR/C/KAZ/CO/2 (2016) 43. E.g., UK (Hong Kong) A/34/40 (1979) 316; India A/39/40 (1984) 274. E.g., Finland CCPR A/41/40 (1985) 167; France CCPR/C/FRA/CO/4 (2008) 10; France CCPR/ C/FRA/CO/5 (2015) 5; Iceland A/38/40 (1983) 101, Mexico A/38/40 (1983) 72. E.g., Malta CCPR/C/79/Add.29 (1993) 10, 13. E.g., HK SAR CCPR/C/79/Add.117 (1999) 14.

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strongly militate against arbitrariness. Domestic provisions relied on for expulsion must have certain properties, including Covenant compatibility, for which the Committee’s jurisprudence under other Covenant provisions (Articles 6(1), 9(1), 12(3) and 27) may provide meaningful support. Arbitrariness in any ‘reasons of national security’ advanced for denying the rights to submit reasons against expulsion, and of case review (with representation), is likely to prevent those reasons being regarded as ‘compelling’. It remains to be seen whether the concept of ‘arbitrariness’ based on ‘inappropriateness, injustice, lack of predictability and due process of law’, which has migrated from Committee deliberations under Articles 6(1) and 9(1),84 to Article 17,85 and most recently Article 12(4),86 will permeate Article 13 considerations, which have as their focus procedural safeguards and prevention of arbitrary expulsion. In addition to the safeguards within Article 13, expulsion of aliens is constrained by numerous Covenant provisions, such as Article 2, 3 and 26 (prohibiting discriminatory use of expulsion powers), Articles 17 and 23 (protecting against family separation), and Articles 6 and 7 (where it would result in the real risk of irreparable harm).

84 General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/ C/GC/35 [12]; General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36 [12], 30 October 2018. See chapter, Article 9: Liberty and Security, section ‘Reasonableness, Necessity and Proportionality’. 85 Timur Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.2]. See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Inappropriateness, Injustice, Lack of Predictability and Due Process of Law’. 86 Deepan Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018 [9.4]. See chapter on Article 12: Freedom of Movement of the Person, section ‘Arbitrariness’.

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INTRODUCTION Page 371 ARTICLE 14(1) 373 ARTICLE 14(2): PRESUMPTION OF INNOCENCE FOR ANYONE CHARGED WITH A CRIMINAL OFFENCE 396 ARTICLE 14(3): CRIMINAL CHARGES: MINIMUM GUARANTEES (IN FULL EQUALITY) 399 ARTICLE 14(4): CRIMINAL PROCEDURE IN THE TRIAL OF JUVENILES: TAKE ACCOUNT OF THEIR AGE AND PROMOTE THEIR REHABILITATION 416 ARTICLE 14(5): REVIEW OF CONVICTION AND SENTENCE BY A HIGHER TRIBUNAL 418 ARTICLE 14(6): CRIMINAL CONVICTION: RIGHT TO COMPENSATION FOR MISCARRIAGE OF JUSTICE 422 ARTICLE 14(7): CRIMINAL PROSECUTION: NE BIS IN IDEM (DOUBLE JEOPARDY) 424 IMPLEMENTATION 426 CONCLUSION 427

Covenant Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 369

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2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Comparable Provisions in Other International Instruments European Convention: Article 6. American Convention on Human Rights: Article 8. African Charter on Human and Peoples’ Rights: Article 7(1).

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INTRODUCTION Outline Characteristics of Article 14 The succinct text of Articles 10 and 11(1) of the Universal Declaration was the basis for Article 14, the longest article in the Covenant because of its detailed particularisation of rules of procedural fairness for anyone subject to a criminal charge or criminal proceedings.1 At the heart of Article 14, and in common with the counterpart Declaration text, is the elemental requirement for ‘a fair and public hearing’ by an ‘independent and impartial tribunal’ in criminal and certain civil proceedings.2 Article 14 has attracted more declarations and reservations than any other provision, in large part because implementation requires its numerous constituent guarantees to be secured in domestic law. Some of the practical challenges posed by Article 14 are more systemically embedded. These include lack of proper resourcing, generating an unmanageable backlog of cases, and inadequate access to justice particularly in those States unable or unwilling to shoulder the cost of workable legal aid systems. Insufficient investment also leaves courts ill-equipped to meet the more specific demands, for example, of juvenile justice. Many countries are unable to achieve effective judicial independence from executive influence. There is a close connection between implementation of the detailed criminal provisions of Article 14 and the achievement of its primary fair trial objectives. Each component plays a significant role. For example, the lack of interpreter facilities (Article 14(3)(f)), or failure to provide legal assistance (Article 14(3)(d)), may each on its own altogether obstruct access to courts and tribunals under Article 14(1), and defeat the right to an effective remedy in Article 2(3). 1 Most of the literature addresses the application of Art. 14 in criminal proceedings. Clooney and Webb provide a detailed analysis of the componentry of the right to a fair trial in criminal proceedings canvassing broadly based sources of international law: Amal Clooney and Philippa Webb, The Right to a Fair Trial in International Law (Oxford University Press, 2019). David Weissbrodt, The Right to a Fair Trial (Springer, 2011), provides a detailed survey comprising specialist contributions addressing the implications of all facets of the fair trial principle in criminal proceedings. For a thorough analysis of Art. 6 of the European Convention for consistency, predictability, coherence and guidance, similarly in criminal proceedings, see Ryan Goss, Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights (Bloomsbury, 2016). European coverage is also provided by Sarah J Summers, Fair Trials: the European Criminal Procedural Tradition and the European Court of Human Rights (Bloomsbury, 2007). 2 David Weissbrodt examines the origins of the right to a fair trial in the Universal Declaration and the Covenant in The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights: Background (Springer, 2001). A shorter overview is offered by Beth Simmons, ‘Civil Rights in International Law: Compliance with Aspects of the International Bill of Rights’, (2009) 16 Ind. J. Global Legal Stud., p. 437, at p. 470. Richard Clayton and Hugh Tomlinson, Fair Trial Rights (Oxford University Press, 2010), combines European Convention jurisprudence with a survey of the common law principles and practice from the United Kingdom, Canada, New Zealand, South Africa and other jurisdictions.

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Even full compliance with Article 14, before and at trial, would be valueless if the resulting decision, such as an award of compensation, may not be enforced.3 In its application to criminal matters Article 14 offers overlapping guarantees, both general (Article 14(1)) and particular (Article 14(2)–(7)). When individualised findings are available (such as under Article 14(3)(a)–(g)) the Committee on the whole prefers to be specific, but often instead finds a violation of Article 14(1) where this is more convenient, whether because allegations are too numerous, or it is safer because the findings under a particular subparagraph are based merely on lack of a State response to an allegation. That both approaches are available also bears out the broad fair trial implications of failure to comply with a single element of Article 14. Other imbrication across Article 14 is self-evident.4 The right to be informed promptly of the nature and cause of a criminal charge (Article 14(3)(a)) supports both limbs of Article 14(3)(b) (to have adequate time and facilities for the preparation of the defence, and to communicate with chosen counsel), which are also important aspects of the principle of equality of arms. That principle itself is also served by the rights to defend oneself with the benefit of legal assistance (Article 14(3)(d)), to examine and crossexamine witnesses (Article 14(3)(e)), and the right to the free assistance of an interpreter (Article 14(3)(f)). Interaction between Article 14 and Other Covenant Provisions Certain aspects of Article 14 echo other Covenant rights. Equality before the courts and tribunals (Article 14(1)) is a species of the rights to equality before the law and equal protection of the law without discrimination (Article 26). Both provisions are capable of responding, for example, to differentiation in the value of the testimony of men and women which still survives in many countries, or disadvantage to women in the adjudication of matrimonial property (also raising issues under Article 3). Similarly, the right to have a conviction and sentence reviewed (Article 14(5)), and the right to compensation for miscarriage of justice (Article 14(6)), are both dimensions of the right to an effective remedy in Article 2(3). The content of Article 14 serves an important function in informing whether there has been a violation of other Covenant provisions in particular circumstances, including by decision-making processes under Article 13 concerning the expulsion

3 Sechremelis et al. v. Greece, CCPR/C/100/D/1507/2006/Rev.1, 25 October 2010 [10.4]. The grant of civil or criminal immunity may in practice simultaneously restrict an individual’s right to pursue remedies in the courts under both Arts 2(3) and 14. 4 For equality of arms as implicit in the guarantee of equality of all persons before the courts and tribunals, see Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [9.2].

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of aliens;5 and when restrictions are imposed on legal capacity, by virtue of Article 17 interference in the administration of medical treatment without consent of those with intellectual disability. Such restrictions must be accompanied by appropriate legal and procedural safeguards, ensuring free and effective legal representation in all proceedings, and prompt access to effective judicial review of decisions, for which Article 14 provides a useful analogue.6 Article 14 interfaces with other Covenant provisions in other ways. A sentence of death imposed at the conclusion of an unfair trial is a violation of Article 6. Violation of Article 14(3)(g) often occurs by admission into evidence of a confession elicited under torture or ill-treatment, contrary to Article 7. Unwarranted delay in bringing to trial a detainee may concurrently enliven Article 9(3) (rooted in the Article 14(2) right to be presumed innocent) and Article 14(3)(c), the right to be tried without undue delay. Prosecutorial partiality, and the laying of charges based on legislation susceptible to wide interpretation, are potentially incompatible with Article 14,7 and are often used to limit unduly freedom of expression (Article 19). Where a prison sentence following an unfair trial triggers loss of the rights to vote and stand for election, Articles 9 and 25 will be violated in addition to Article 14.8 Further instances of correlation between Article 14 and other Covenant provisions will be discussed as the chapter progresses. Chapter Outline This chapter follows the text of Article 14. The Committee’s jurisprudence across all aspects of Article 14 is well established as a result of the sheer volume of communications brought, leaving less work for Concluding Observations to fill gaps or to clarify detail, except in the area of domestic implementation, which is rarely the subject of OP1 communications.9

A RT I C L E 1 4 ( 1 ) Distinctions between the Right to Equality before the Courts and Tribunals, and to a Fair and Public Hearing The two main guarantees in Article 14(1) are of equality before the courts and tribunals (first sentence), and entitlement to a fair and public hearing (second

5 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.9]. 6 E.g., Lithuania CCPR/C/LTU/CO/4 (2018) 14. 7 E.g., Nasheed v. Maldives, CCPR/C/122/D/2270 & 2851/2013, 4 April 2018 [8.3] (failure to comply with the principle of legal certainty and predictability). 8 See chapter on Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service, section ‘Prisoners’. 9 See section ‘Implementation’, below.

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sentence). General Comment 32 describes them together as a key element of human rights protection serving a procedural means of safeguarding the rule of law.10 During its drafting, most Third Committee delegates saw the equality limb in particular as an important general principle of the rule of law.11 Equality before courts and tribunals guarantees equal access, equality of arms, and ensures non-discrimination between the parties to the proceedings.12 The right to a fair and public hearing ensures that no individual is deprived, in procedural terms, of their right to claim justice,13 administered by a ‘competent, independent and impartial tribunal established by law’. Equality before courts and tribunals applies to a broader range of adjudications than the right to a fair and public hearing (which is confined to ‘the determination of a criminal charge’ or of ‘rights and obligations in a suit at law’). It is triggered whenever domestic law entrusts a judicial body with a judicial task,14 including when deciding on the imposition of disciplinary measures against a public servant (which may not constitute a determination of rights and obligations in a suit at law),15 and extradition (which does not amount to the determination of a criminal charge even when decided by a court).16 Equality before the Courts and Tribunals: Applies to All Proceedings Equality before the courts and tribunals requires distinctions in access to them to be based on law and justified on objective and reasonable grounds.17 This is consistent with the test for determining violative discrimination under Article 26 (the Committee applies the ‘reasonable and objective’ criteria to both the equality before the law and equal protection of the law limbs of Article 26). However, the right to equality before the courts and tribunals is narrower than the protection available under Article 26 because it concerns the application of law by judicial or quasi-judicial determination, not the operation of law more generally. The relevant proceedings obviously need not relate to a Covenant right.18 10 General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 (GC 32) [2]. 11 Nowak, CCPR Commentary, p. 308. 12 GC 32 [8]. 13 GC 32 [9]. 14 GC 32 [7]. 15 Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [9.2]: ‘whenever a judicial body is entrusted with the task of deciding on the imposition of disciplinary measures, it must respect the guarantee of equality . . . before the courts . . . and the principles of impartiality, fairness and equality of arms implicit in this guarantee’. 16 Everett v. Spain, CCPR/C/81/D/961/2000, 9 July 2004 [6.4]: ‘particularly, in cases where . . . the judiciary is involved in deciding about extradition, it must respect the principles of impartiality, fairness and equality, as enshrined in [Art 14(1)]’; Griffiths v. Australia, CCPR/C/112/D/1973/ 2010, 21 October 2014 [6.5] (while Art.14(1) does not as such give persons subject to extradition access to a court or tribunal, whenever domestic law entrusts a judicial body with a judicial task, the first sentence of Art.14(1) guarantees in general terms the right to equality before courts and tribunals and thus the principles of impartiality, fairness and equality, as enshrined in that provision, must be respected). 17 GC 32 [9]. 18 Pons v. Spain, CCPR/C/55/D/454/1991, 30 June 1994 [9.3] (right to social security).

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All Persons By virtue of Article 2(1) the guarantee of equality before courts and tribunals benefits all individuals within a Contracting State’s territory and subject to its jurisdiction. Article 14(1) itself refers to ‘all persons’, which includes a nonresident alien,19 but has particular force in its application to those susceptible to discrimination by State authorities, the vulnerable, including those at risk of social exclusion,20 those with disabilities,21 and the geographically remote.22

Non-discrimination Violation of the right to equality before courts and tribunals is most conspicuous when it coincides with discrimination prohibited by Articles 2, 3 or 26, such as in Avellanal v. Peru when the right to represent matrimonial property before courts was confined to married men, contrary to Articles 3, 14(1) and 26;23 and in Vojnović v. Croatia when in proceedings to determine the protected tenancy rights of a family that fled their apartment after receiving death threats directed at them as Croatian Serbs, the court’s refusal to admit evidence that other Serbs living in the same apartment building had to flee in the same circumstances was arbitrary and in violation of Article 14(1), in conjunction with Article 2(1).24 Kavanagh v. Ireland illustrates how the Committee approached differential treatment which followed the exercise of the DPP’s discretion to refer certain serious offences committed against the State to special courts. The consequence for the author, who was charged with false imprisonment, robbery, demanding money with menaces and possession of a firearm as part of a highly organised bank robbery, was that he was deprived of the rights under domestic law to a jury trial and to examine witnesses at a preliminary stage. The Committee understood 19 Said v. Norway, CCPR/C/68/D/767/1997, 26 April 2000 [11.3]. 20 E.g., Uruguay CCPR/C/URY/CO/5 (2013) 22 (access to the justice system obstructed for the most vulnerable and those at risk of social exclusion). 21 E.g., Lithuania CCPR/C/LTU/CO/3 (2012) 14 (concern for legally incapacitated); Serbia CCPR/ C/SRB/CO/3 (2017) 16; Hungary CCPR/C/HUN/CO/6 (2018) 21, 22 (recommendation for prompt access to judicial review of decisions affecting those with mental, intellectual and psychosocial disabilities forcibly placed in medical institutions). 22 E.g., Guatemala CCPR/C/GTM/CO/3 (2012) 26 (inadequate geographical coverage of the judicial system); Pakistan CCPR/C/PAK/CO/1 (2017) 31 (the jurisdiction of highest courts did not apply in the Federally Administered Tribal Areas); Congo CCPR/C/COD/CO/4 (2017) 37 (uneven geographical coverage of the court system, in practice making justice inaccessible to some citizens); Gambia CCPR/C/GMB/CO/2 (2018) 37 (limited access to justice in rural areas). As to disadvantage relative to those who can pay, see Madagascar CCPR/C/MDG/CO/4 (2017) 33 (complainants can contribute to the operating costs of the investigative police in order to speed up an investigation, which undermines equal access to public services). 23 Avellanal v. Peru, Communication No. 202/1986, Supp. No. 40 (A/44/40) at 196 [10.2], [11]. 24 Vojnović v. Croatia, CCPR/C/95/D/1510/2006, 30 March 2009 [8.3]. For the distinctions between Arts 2 and 26, see chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, section ‘How the Key Equality and Non discrimination Provisions (Articles 2(1), 3 and 26) Differ from Each Other’.

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his claim based on equality before the courts and tribunals paralleled his Article 26 claim to equality before the law and to the equal protection of the law, and the reasoning provided to support its finding of violation of Article 26 is also instructive under Article 14. Neither protection was required by the Covenant, and the absence of either or both would not necessarily render a trial unfair, but it was sufficient for a finding of violation of Article 26 that the author was distinguished from others charged with similar offences in ordinary courts, and the State could not demonstrate that the decision was based upon reasonable and objective grounds.25 Failure by a domestic court to address grounds of appeal relating to an accused’s right to equality before the courts may itself ground a finding of violation on that limb of Article 14(1).26 Article 14 guarantees procedural equality but cannot be interpreted as guaranteeing equality of results or absence of error on the part of the competent tribunal.27

Equal Access A critical aspect of the equality mandated in Article 14(1) is equal access to the courts and tribunals. As the Committee observed in Bahamonde v. Equatorial Guinea, ‘the notion of equality before the courts and tribunals encompasses the very access to the courts’ when addressing the situation in which the authors’ attempts to have competent courts seize jurisdiction were systematically frustrated (in the context of allegations that the president effectively controlled the judiciary).28 Although Article 14(1) does not expressly require States parties to provide legal aid outside the context of the criminal trial, a failure to do so may result in findings under Article 14(1) on the basis of equal access. In the post-trial circumstance faced by the author in Henry v. Trinidad and Tobago measures to guarantee equal access should have included through the provision of legal aid given that he was in detention on death row, with no possibility to present a motion in person, on the constitutionality of his execution.29 25 Kavanagh v. Ireland, CCPR/C/71/D/819/1998, 4 April 2001 [10.2] [10.3]. On the availability of trial by jury, see also Cheban et al. v. Russian Federation, CCPR/C/72/D/790/1997, 24 July 2001 [7.2] (no violation of Art. 26 when the federal union permitted differences among the federal units in respect of jury trial); Marz v. Russian Federation, CCPR/C/97/D/1425/2005, 21 October 2009 [6.3] (no violation of Art. 14(1) in similar circumstances). 26 Mulai v. Guyana, CCPR/C/81/D/811/1998, 20 July 2004 [6.1], [6.2] (violation of Art. 14(1) because the appellate court did not address that part of the grounds of appeal relating to the right of the accused to equality before the courts after the jury foreman informed the police and chief justice of a jury nobbling incident but the defence was not made aware of it). 27 B.d.B. v. Netherlands, CCPR/C/35/D/273/1988, 30 March 1989 [6.3]. 28 Bahamonde v. Equatorial Guinea, CCPR/C/49/D/468/1991, 20 October 1993 [9.4]. 29 Henry v. Trinidad and Tobago, CCPR/C/64/D/752/1997, 3 February 1999 [7.5] [7.6]. For similar circumstances and conclusions, also demonstrating that the denial of equal access may result from failure to provide legal assistance under Art. 14(3)(d), see Currie v. Jamaica, CCPR/

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Members of an indigenous minority in Sweden were found to be denied their right to equal access to the courts in Äärelä and Näkkäläjärvi v. Finland when the rigid application of rules awarding costs to the winning party resulted in them paying a substantial sum, without the court applying its discretion in the light of the implications of the burden. It could have a deterrent effect on the ability of those alleging violation of Covenant rights to pursue a remedy.30

Equality of Arms Equality of arms, in conjunction with principles of impartiality and fairness, is implicit in the guarantee of equality before the courts and tribunals.31 A finding of violation resulted in Frank Robinson v. Jamaica from the refusal of a trial judge to order an adjournment to allow the author to have legal representation, when several adjournments had already been ordered to convenience the prosecution when its witnesses were unavailable or unready.32 Similarly in Dudko v. Australia, the author was in custody and not present or able to participate in an oral application for leave to appeal in a criminal matter in which a solicitor representing the DPP presented arguments and answered a question of fact put by the court. It is for the State Party to show that any procedural inequality was based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness to the author. There was no explanation why an unrepresented defendant in detention should be treated less favourably than an unrepresented defendant not in detention (given the possibility of appearance by video link).33 The extradition of the author in Weiss v. Austria, in breach of a stay, and his inability to appeal an adverse judgment of a court while the prosecutor could, and did appeal an earlier judgment of the same court, was in violation of his right to equality before the courts, taken together with the right to an effective and enforceable remedy under Article 2(3).34

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C/50/D/377/1989, 29 March 1994 [13.4]; Taylor v. Jamaica, CCPR/C/62/D/705/1996, 2 April 1998 [7.3]; Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.10]. Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.2] (violation of Art. 14(1), in conjunction with Art. 2). See also Lindon v. Australia, CCPR/C/64/D/646/1995, 25 November 1998 [6.4] (if administrative, prosecutorial or judicial authorities of a State Party laid such a cost burden on an individual that access to court de facto would be prevented, then this might give rise to issues under Art. 14(1)); Tyvanchuk et al. v. Belarus, CCPR/C/122/D/2201/ 2012, 26 March 2018 [7.4] (violation of Art. 14(1) in the failure to waive court fees when the power existed to do so). Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [9.2] (the principles of impartiality, fairness and equality of arms are implicit in the guarantee of equality of all persons before the courts and tribunals). Robinson v. Jamaica, CCPR/C/35/D/223/1987, 30 March 1989 [10.4]. Dudko v. Australia, CCPR/C/90/D/1347/2005, 23 July 2007 [7.3] [7.4]. Weiss v. Austria, CCPR/C/77/D/1086/2002, 3 April 2003 [9.6].

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The duty of the courts to ensure equality between the parties includes, even in civil proceedings, the ability to contest all the argument and evidence adduced by the other party. It was violated, for example, by inequality between the parties in the production of evidence for a hearing in Jansen-Gielen v. Netherlands because the court did not allow the author to append a psychological report to the case file two days before the hearing;35 and in Äärelä and Näkkäläjärvi v. Finland because the authors were not given opportunity to comment on a brief containing legal argument submitted by State authorities out of time, and were thereby precluded from responding to it, even though the court took account of it in reaching a substantive decision in favour of the authorities.36 In criminal proceedings the principle of equality of arms is exemplified by violation in the following circumstances: in Litvin v. Ukraine by the refusal in a rape and murder trial of a request to call and examine witnesses who gave alibi evidence in preliminary proceedings, and of motions for additional forensic examinations, and the failure to take into account exculpatory facts and evidence;37 in Dugin v. Russian Federation by the lack of opportunity to cross-examine the victim on his evidence (in spite of the considerable weight given by the prosecution to his statement), and (without giving reasons) the court’s refusal to allow the defendant to summon an expert and call additional witnesses;38 in Nazarov v. Uzbekistan by denying (without explanation) the author’s request for an expert to determine a matter which may have constituted crucial evidence;39 in Nenova et al. v. Libya by dismissing (without providing sufficient grounds) the expert testimony of two professors;40 and in Federation El Hagog Jumaa v. Libya by unequal access to relevant evidence.41 This principle of fairness and equality of arms may also be compromised by not progressing proceedings expeditiously.42 The principle of equality of arms implies that the parties to the proceedings must have adequate time and facilities for the preparation of their arguments and requires access to the documents necessary to prepare such arguments. However, the Committee has made a distinction between first instance and appeal procedures. In Perterer v. Austria the failure to transmit a trial transcript to the author before the end of the deadline for appealing the relevant decision was not

35 36 37 38 39 40 41 42

Jansen Gielen v. Netherlands, CCPR/C/71/D/846/1999, 3 April 2001 [8.2]. Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.4]. Litvin v. Ukraine, CCPR/C/102/D/1535/2006, 19 July 2011 [10.4] [10.5]. Dugin v. Russian Federation, CCPR/C/81/D/815/1998, 5 July 2004 [9.3]. Nazarov v. Uzbekistan, CCPR/C/81/D/911/2000, 6 July 2004 [6.3]. Nenova et al. v. Libya, CCPR/C/104/D/1880/2009, 20 March 2012 [7.9] [7.10]. Jumaa v. Libya, CCPR/C/104/D/1755/2008, 19 March 2012 [8.9] [8.10]. Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [10.7] (delay of fifty seven months in adjudicating a matter of minor complexity). See also (though with no explicit reference to equality of arms) Casanovas v. France, CCPR/C/51/D/441/1990, 19 July 1994 [7.2] [7.3] (whether the duration of dismissal proceedings violated the right to a fair hearing).

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a violation, the Committee observing that ‘adequate preparation of one’s defence cannot be equated with the adequate preparation of an appeal’, in circumstances where the author failed to demonstrate that the late transmittal of the transcript prevented him from raising the irregularities alleged.43 Failure to observe the principle of equality of arms may also result from not informing someone at risk of being sanctioned in administrative proceedings of the time and date of the hearing, with the consequence they cannot attend (Volchek v. Belarus),44 or by not notifying the defence of a hearing in which a criminal sentence is modified (Quliyev v. Azerbaijan).45 The rights in Article 14(3)(e) to examine and call witnesses, and in Article 14(3)(f) to provide interpreter assistance in criminal trials,46 support the principle of equality of arms. Article 27 requires provision of similar interpreter assistance for linguistic minorities (including in civil proceedings) when they cannot understand or speak the language used in court, though this does not extend to a right to use or speak their language of choice in court proceedings.47 In the reporting process concern for lack of equality of arms has arisen in the restricted access given to exculpatory or relevant evidence,48 particularly where it weighs importantly in any determination;49 in the inability of a suspect during investigation or accused at trial to obtain and challenge evidence,50 or to access documents on national security grounds;51 in plea-bargaining arrangements;52 and in the prosecution’s wide powers in the judicial process.53 43 Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [10.6]. 44 Volchek v. Belarus, CCPR/C/111/D/1991/2010, 24 July 2014 [7.7]; similarly Evrezov et al. v. Belarus, CCPR/C/112/D/1999/2010, 10 October 2014 [8.9]. Cf. Said v. Norway, CCPR/C/ 68/D/767/1997, 26 April 2000 [11.3] (no violation when the author could not attend but was represented by a lawyer and neither sought a postponement to allow the author to be present). 45 Quliyev v. Azerbaijan, CCPR/C/112/D/1972/2010, 16 October 2014 [9.3]. 46 Nenova et al. v. Libya, CCPR/C/104/D/1880/2009, 20 March 2012 [7.9]. 47 See chapter on Article 27: Ethnic, Religious and Linguistic Minorities, section ‘Linguistic Minorities’. 48 E.g., Japan CCPR/C/79/Add.102 (1998) 26 (no obligation on the prosecution to disclose, and no right to demand, evidence gathered in the course of the investigation other than that which the prosecution intends to produce at the trial); Spain CCPR/C/ESP/CO/5 (2009) 18 (concern at the sub judice rule enabling a judge in a criminal investigation to order a full or partial ban on access by the defence to information produced by an investigation). 49 E.g., Canada CCPR/C/CAN/CO/5 (2006) 13 (individuals should not be condemned on the basis of evidence to which they, or those representing them, do not have full access in anti terrorism legislation). 50 E.g., Tajikistan CCPR/CO/84/TJK (2005) 16 (an inequality of arms between the prosecutor and the suspect/accused or defence counsel existed in relation to obtaining and challenging evidence). 51 E.g., UK CCPR/C/GBR/CO/7 (2015) 22 (the use of closed material procedures was extended to civil proceedings involving sensitive material which could damage national security). 52 E.g., Georgia CCPR/C/GEO/CO/4 (2014) 15 (insufficient protection under the plea bargaining system, including against abuse and coercion, insufficient transparency of the negotiation process, and limited role of the court). 53 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 21; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 37 (concern that the prosecution retained wide powers in the judicial process which adversely affected the equality of arms).

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Right to ‘a Fair and Public Hearing’ by a ‘Competent, Independent and Impartial Tribunal Established by Law’ The right to a fair hearing applies only to the ‘determination of a criminal charge’ or of ‘rights and obligations in a suit at law’.

‘Determination of a Criminal Charge’ The determination of a criminal charge extends to the imposition of sanctions that, regardless of their qualification in domestic law, are penal in nature.54 A number of cases concerned the procedure in Jamaica for reclassifying certain offences as non-capital. Its purpose was principally to enable a single judge to make a prompt decision in favour of a defendant who had committed a capital offence, and thereby remove quickly any uncertainty about their risk of being executed. The question arose as to whether this entailed the determination of a criminal charge, when it resulted in a non-parole period of detention of a substantial term. The Committee decided that it did, because when setting this the judge exercised discretionary power separate from the decision on pardon.55 If instead the single judge found that the offence was of a capital nature, the defendant would be notified and granted the right to appeal to a three-judge panel, which would address the matter in a public hearing to which all appropriate procedural safeguards applied.56 Though not decided on the question of ‘determination of a criminal charge’ Kennedy v. Trinidad and Tobago is of interest. The author claimed his right under Article 6(4) (to seek pardon or commutation of the death sentence) was violated because he was denied the procedural guarantees of Article 14 in not being heard in his request for a pardon nor informed about the status of deliberations on that request. The Committee found there was no violation, because Article 6(4) does not prescribe a particular procedure for the modalities of the exercise of the prerogative of mercy.57 (This is also in keeping with a wish to encourage States not to impose the death penalty.) Extradition, expulsion and deportation proceedings do not concern the ‘determination of a criminal charge’ since the claimant has not been charged or

54 Paul Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [9.2]. 55 Gallimore v. Jamaica, CCPR/C/66/D/680/1996, 16 September 1999 [7.2]; Everton Bailey v. Jamaica, CCPR/C/66/D/709/1996, 17 September 1999 [7.5]. 56 Morgan and Williams v. Jamaica, CCPR/C/64/D/720/1996, 25 November 1998 [7.1] (no viola tion when the authors were not represented nor entitled to make any submissions); Levy v. Jamaica, CCPR/C/64/D/719/1996, 25 November 1998 [7.1]. 57 Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.4]. See also Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [7.7] (the commutation process is not one attracting the guarantees of Art. 14).

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convicted of the relevant crime in the State Party. Deportation or extradition is also not by way of sanction imposed as a result of a criminal proceeding.58 To prevent avoidance of fair trial obligations merely by a domestic device of classification of proceedings, the Committee has stated clearly that the concept of a ‘criminal charge’ under Article 14(1) bears an autonomous meaning, independent of the categorisations employed by the national legal systems, and has to be understood in terms of the Covenant. It may extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity.59 In E.V. v. Belarus, focusing on the ‘purpose and character’ of sanctions imposed for the administrative offence of participating in a mass event, the Committee observed that sanctions had the aim of repressing the conduct through penalties, serving also as a deterrent to others, analogous to the general goal of the criminal law. The offence in question was therefore criminal in nature.60 In the determination of a criminal charge the question of fairness may attach to the charge itself, for example, when the legislative basis for it is formulated in a broad and vague fashion that is susceptible to wide interpretation, and does not comply with the principle of legal certainty and predictability.61

‘Suit at Law’ The term ‘suit at law’ is formulated in the Covenant’s text differently in various languages, each equally authentic, and the travaux do not resolve the discrepancy between them. Consistently with those variants the Committee takes the view that a qualifying ‘suit at law’ is based on the nature of the right in question rather than on the status of one of the parties (governmental, parastatal or autonomous statutory entity), or the particular forum for adjudication.62 As 58 Everett v. Spain, CCPR/C/81/D/961/2000, 9 July 2004 [6.4] (even when decided by a court the consideration of an extradition request does not amount to the determination of a criminal charge); P.K. v. Canada, CCPR/C/89/D/1234/2003; 20 March 2007 [7.4] (refugee determination proceedings did not constitute determination of a ‘criminal charge’); Kaur v. Canada, CCPR/C/ 94/D/1455/2006, 30 October 2008 [7.4] (refugee determination proceedings do not constitute determination of a ‘criminal charge’); Tarlue v. Canada, CCPR/C/95/D/1551/2007, 27 March 2009 [7.8] (deportation proceedings following a negative asylum determination do not constitute the ‘determination of a criminal charge’); Griffiths v. Australia, CCPR/C/112/D/ 1973/2010, 21 October 2014 [6.5] (even when decided by a court, the consideration of an extradition request does not amount to the determination of a criminal charge; but whenever domestic law entrusts a judicial body with a judicial task equality before the courts, and thus the principles of impartiality, fairness and equality, must be respected). The scope for challenge to extradition is examined in detail by Harrington, ‘The Absent Dialogue’, p. 82. 59 Osiyuk v. Belarus, CCPR/C/96/D/1311/2004, 30 July 2009 [7.3]. 60 E.V. v. Belarus, CCPR/C/112/D/1989/2010, 30 October 2014 [6.4] [6.6]. 61 Nasheed v. Maldives, CCPR/C/122/D/2270 & 2851/2013, 4 April 2018 [8.3]. 62 Y.L. v. Canada, Communication No. 112/1981, Supp. No. 40 (A/41/40) at 145, 8 April 1986 [9.1] [9.2].

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General Comment 32 points out, the concept of a ‘suit at law’ encompasses judicial procedures aimed at determining rights and obligations in the private law sphere, in areas of contract, property and torts, as well as equivalent notions in the area of administrative law, and certain other procedures, where justified on a case-by-case basis in the light of the nature of the right in question.63 This makes allowance for differences across jurisdictions, including the fact, observed in Y.L. v. Canada, that in common law systems there is no inherent difference between public law and private law. Each communication must therefore be examined in the light of its particular features.64 There is no ‘suit at law’ on which to base a denial of the right to a fair hearing where there is no underlying legal entitlement. Such an entitlement was present in claims concerning removal from public employment,65 the determination of pension entitlements on dismissal from the armed services,66 disputes related to the right to property,67 or the exploitation of land on which a cultural minority is dependent;68 but not in a number of cases which concerned promotion to public service positions, or judicial or professorial appointments.69 An Article 14 claim based on a ‘suit at law’ is also not available if the matter has already been settled.70 There is no determination of rights and obligations in a suit at law where the individual concerned is confronted with measures taken against them in their capacity as someone subordinated to a high degree of administrative or parliamentary control, such as in the impeachment proceedings in Paksas v. Lithuania. Neither did those particular proceedings constitute the determination of criminal charges.71 Proceedings relating to the expulsion of aliens involve neither ‘the determination of any criminal charge’ (as previously mentioned) nor ‘rights and obligations in a suit at

63 GC 32 [16]. 64 Y.L. v. Canada, Communication No. 112/1981, Supp. No. 40 (A/41/40) at 145, 8 April 1986 [9.2]. 65 Casanovas v. France, CCPR/C/51/D/441/1990, [5.2]; Vargas Machuca v. Peru, CCPR/C/75/D/ 906/2000, 22 July 2002 [7.3]. 66 Y.L. v. Canada, Communication No. 112/1981, Supp. No. 40 (A/41/40) at 145, 8 April 1986 [9.3] [9.4]. 67 Czernin v. Czech Republic, CCPR/C/83/D/823/1998, 29 March 2005 [6.7]. 68 Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.2] [7.4]. 69 Kolanowski v. Poland, CCPR/C/78/D/837/1998, 6 August 2003 [6.4] (contested promotion within the Polish police); Kazantzis v. Cyprus, CCPR/C/78/D/972/2001, 7 August 2003 [6.5] (application for employment in the judiciary); Guido Jacobs v. Belgium, CCPR/C/81/D/943/ 2000, 7 July 2004 [3.11], [8.7] (non election as a judge under a code requiring a particular gender and nationality mix in judicial appointments); Fernández v. Spain, CCPR/C/85/D/1396/2005, 28 October 2005 [2.2], [3.3], [6.3] (judicial appointment dismissed because not supported by the minimum number of endorsements); Dimitrov v. Bulgaria, CCPR/C/85/D/1030/2001, 28 October 2005 [8.3] (nothing to show that the author had any right to have the title of professor conferred on him and no obligation to endorse his candidature). 70 Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.11]. 71 Paksas v. Lithuania, CCPR/C/110/D/2155/2012, 25 March 2014 [7.7] [7.8].

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law’.72 They are instead governed by the terms of Article 13,73 which in turn is interpreted in the light of Article 14.74

Fair Hearing In its early decision in Morael v. France the Committee acknowledged that Article 14 does not explain what is meant by a ‘fair hearing’, but it added that the term ‘should be interpreted as requiring a number of conditions, such as equality of arms, respect for the principle of adversary proceedings, preclusion of ex officio reformatio in pejus [ex officio worsening an earlier verdict], and expeditious procedure’. The facts of each case should accordingly be tested against those criteria.75 More recently in de Jorge Asensi v. Spain, and with the benefit of its later jurisprudence and General Comment 32, it restated those illustrative conditions in terms of equality of arms and absence of arbitrariness, manifest error or denial of justice.76 ‘Fairness’ entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive.77 This element was not satisfied in Gridin v. Russian Federation because the trial court failed to control the hostile atmosphere and pressure created by the public in the court room, which made it impossible for defence counsel to crossexamine the witnesses properly and present his defence.78 A hearing may also not be fair, in circumstances disclosed in the Committee’s review of country reports, if the jury trial system does not enable the accused and the public to understand the verdict pronounced by the jury,79 or if criminal courts

72 P.K. v. Canada, CCPR/C/89/D/1234/2003; 20 March 2007 [7.5] (proceedings relating to an alien’s expulsion, governed by Art. 13, do not also fall within the ambit of a determination of ‘rights and obligations in a suit at law’); similarly, Zundel v. Canada, CCPR/C/89/D/1341/2005, 20 March 2007 [6.8]; A.C. et al. v. Netherlands, CCPR/C/91/D/1494/2006, 22 July 2008 [8.4]. 73 Article 13 offers some of the protection afforded by Art. 14(1), but not the right of appeal: X v. Denmark, CCPR/C/112/D/2186/2012, 22 October 2014 [6.3] (the objection was that decisions of the Refugee Board were the only ones that become final without a possibility of being appealed); A and B v. Denmark, CCPR/C/117/D/2291/2013, 13 July 2016 [7.3] (unable to appeal the negative decision of the Refugee Appeals Board to a judicial body); A.M.M. v. Denmark, CCPR/C/117/D/2415/2014, 14 July 2016 [7.6]; J.D. v. Denmark, CCPR/C/118/D/2204/2012, 26 October 2016 [10.5]; M.A. v. Denmark, CCPR/C/119/D/2240/2013, 17 March 2017 [6.4]. 74 Ahani v. Canada, CCPR/C/80/D/1051/2002, 29 March 2004 [10.9] (as Art. 13 incorporates notions of due process also reflected in Art. 14, it would be inappropriate in terms of the scheme of the Covenant to apply the broader and general provisions of Art. 14 directly); Everett v. Spain, CCPR/C/81/D/961/2000, 9 July 2004 [6.4] (particularly in cases where, as in the current one, the judiciary is involved in deciding about extradition, it must respect the principles of impartiality, fairness and equality, as enshrined in Art. 14(1), and also reflected in Art. 13); similarly, Griffiths v. Australia, CCPR/C/112/D/1973/2010, 21 October 2014 [6.5]. 75 Morael v. France, Communication No. 207/1986, Supp. No. 40 (A/44/40) at 210, 28 July 1989 [9.3]. 76 Asensi v. Spain, CCPR/C/92/D/1413/2005, 25 March 2008 [8.2], citing Morael and GC 32 [26]. 77 GC 32 [25]. 78 Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 20 July 2000 [8.2]. 79 Georgia CCPR/C/GEO/CO/4 (2014) 14.

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may reach no decision at the end of the trial but may instead remit the case to the prosecutor for further enquiries.80

‘Manifestly Arbitrary or a Denial of Justice’, ‘Biased and Arbitrary’ The test commonly applied to determine whether a trial met the requirements of fairness is whether the procedure applied or the evaluation undertaken was ‘manifestly arbitrary or otherwise amounted to a denial of justice’.81 More recently, the Committee has added, ‘or the court failed in its duty of independence and impartiality’.82 Generally, the procedural practice applied by domestic courts is a matter for the courts (including appellate courts) to determine in the interests of justice, and therefore not for the Committee to review. This principle has been applied to the evaluation of evidence against an accused;83 the evaluation of facts and evidence by the court (even when bias is alleged in such evaluation);84 the lawfulness and credibility of an identification;85 the interpretation of domestic legislation by national courts;86 and the judge’s instructions to the jury.87 In Ashurov v. Tajikistan the court was shown to act in a biased and arbitrary manner when the presiding judge asked leading questions; gave instructions to modify the trial’s transcript in an untruthful way; sought to exclude the author’s Tajik-speaking lawyer from participating (the author was Russian and had little mastery of Tajik); failed properly to examine the defendant’s torture claim; and denied (without reasons) requests for sufficient time to study the case file with an interpreter, to instruct investigative bodies to translate the indictment into Tajik and to call witnesses on his behalf.88 In Rouse v. Philippines the court’s choice of admissible evidence, as well as its evaluation of that evidence on charges that the defendant had sex with a minor, were ‘clearly arbitrary’ because a private complainant admitted on affidavit that he had been part of a set-up organised by police 80 Kyrgyzstan CCPR/CO/69/KGZ (2000) 16. 81 Exemplified by Simms v. Jamaica, CCPR/C/53/D/541/1993, 3 April 1995 [6.2]; Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.3]. 82 Allakulov v. Uzbekistan, CCPR/C/120/D/2430/2014, 19 July 2017 [6.3]. 83 Sahadeo v. Guyana, CCPR/C/73/D/728/1996, 1 November 2001 [6.3] (claim that the conviction of the author was not based on sufficient evidence). 84 Sharifova et al. v. Tajikistan, CCPR/C/92/D/1209 & 1231/2003 & 1241/2004, 1 April 2008 [6.5]; Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, 17 March 2009 [6.3]; Cridge v. Canada, CCPR/C/95/D/1529/2006, 27 March 2009 [6.5]. 85 Piandiong et al. v. Philippines, CCPR/C/70/D/869/1999, 19 October 2000 [7.2]. 86 Murcia v. Spain, CCPR/C/92/D/1528/2006, 1 April 2008 [3.3], [4.3]. 87 Teesdale v. Trinidad and Tobago, CCPR/C/74/D/677/1996, 1 April 2002 [5.4]; Simms v. Jamaica, CCPR/C/53/D/541/1993, 3 April 1995 [6.2]; Gallimore v. Jamaica, CCPR/C/66/ D/680/1996, 16 September 1999 [6.3] (judge’s instructions on how to interpret identification evidence); Reece v. Jamaica, CCPR/C/78/D/796/1998, 14 July 2003 [73]. For an unsuccessful review of the judge’s instructions after admissibility stage, see Pinto v. Trinidad and Tobago, CCPR/C/39/D/232/1987, 20 July 1990 [12.4]. 88 Ashurov v. Tajikistan, CCPR/C/89/D/1348/2005, 20 March 2007 [2.7] [2.11], [6.6] (violation of Art. 14(1), (3)(a)(b) and (e)).

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officers yet the affidavit was not received into evidence. The author was convicted on the basis of accounts given out of court by the alleged victim, and dubious circumstantial evidence.89 The onus is generally on authors to show that a particular practice has given rise to unfairness in the proceedings.90 However, the burden of proof does not rest with the author alone when the author and the State have unequal access to evidence. Frequently the relevant information resides with the State alone, especially when a confession is made under duress. Due weight is then given to the author’s allegations.91 In spite of asymmetrical access to relevant information, in many cases the author is able to demonstrate that the domestic court acted in a biased and arbitrary manner in the way it handled the assertion of forced confession. In Kurbanov v. Tajikistan the author did so by pointing to the court’s unreasoned rejection of properly and clearly documented evidence of her son’s torture. The trial court relied on a denial that the police were involved in any wrongdoing; it asserted that the author ‘did not present to the court any unquestionable evidence that he was beaten by police officers’; it did not take into account the fact that the police were cautioned for their unlawful acts; and it dismissed the significance of an order confirming sanctions against them by noting that the signature on the copy of the order was illegible. The appellate court similarly failed to address these claims. The Committee criticised the courts for contravening a principle of special importance to the right against self-incrimination in Article 14(3)(g), discussed below, for ‘in effect plac[ing] the burden of proof on the author, when the burden of proving that the confession was made without duress is on the prosecution’.92 The ‘denial of justice’ is the logical basis for assessing domestic decisions in instances of failure to enforce court awards. The General Comment phraseology, ‘clearly arbitrary or amounted to a manifest error or denial of justice’, is typically deployed without isolating this particular aspect. In practice the denial of justice is often also arbitrary. In Bonilla Lerma v. Colombia the refusal of various domestic courts to enforce the payment of damages to which the author was entitled under a court decision was the result of execution of his award being referred to a court that did not have jurisdiction to enforce it, and in the remedial steps he then took he was said to have renounced his claim.93 In Czernin v. Czech Republic the Committee reviewed a number of decisions by authorities concerning the 89 Rouse v. Philippines, CCPR/C/84/D/1089/2002, 25 July 2005 [7.2]. 90 Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.3]. Proof was greatly facilitated in Krasnov v. Kyrgyzstan, CCPR/C/101/D/1402/2005, 29 March 2011 [8.8] by the State’s own investigations revealing ‘numerous and contradictory court decisions’ in the matter. 91 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Burden of Proof of Violation’. 92 Kurbonov v. Tajikistan, CCPR/C/86/D/1208/2003, 16 March 2006 [6.3]. 93 Lerma v. Colombia, CCPR/C/102/D/1611/2007, 26 July 2011 [10.2] [10.3].

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restoration of property seized during the Communist era, relying on the principle that ‘in the pursuit of a claim under domestic law, the individual must have access to effective remedies, which implies that the administrative authorities must act in conformity with the binding decisions of national courts’. The inaction of the authorities and the excessive delays in implementing relevant court decisions violated Article 14(1), in conjunction with Article 2(3) (the right to an effective remedy).94 In Allakulov v. Uzbekistan the Committee found a violation of Article 14(1), read together with Article 2(3), in answer to a claim based on denial of justice, when the prosecutor, who was not a party to any relevant proceedings, could request a court to quash decisions ordering the retraction of defamatory remarks which persisted against the author, relating to allegations of fraud after the author had been acquitted, and it was not open to him to challenge such a request.95

Lack of Expedition The right to be tried without undue delay on a criminal charge is the subject of Article 14(3)(c). The fair hearing requirement under Article 14(1), that the procedure before the national tribunals must be conducted expeditiously, applies more broadly, including to civil matters. It relates to all stages of the proceedings, including the time until any final appeal decision. Delays must be assessed in the light of the circumstances of each case, taking into account, among other things, its complexity, the conduct of the parties, the manner in which the case was dealt with by the administrative and judicial authorities,96 and any detrimental effects that the delay may have had on the legal position of the complainant.97 Article 14(1) has been violated by undue delays in the following range of proceedings: seeking compensation for illegal detention (Mukunto v. Zambia);98 clarifying citizenship status (Gonzalez v. Guyana);99 determining 94 Czernin v. Czech Republic, CCPR/C/83/D/823/1998, 29 March 2005 [2.6], [7.4] [7.5]. 95 Allakulov v. Uzbekistan, CCPR/C/120/D/2430/2014, 19 July 2017 [5.4], [7.4] [7.5] (the action ‘cannot be considered as being consistent with the right to a fair hearing by an independent and impartial tribunal’). 96 Bolívar v. Venezuela, CCPR/C/112/D/2085/2011, 16 October 2014 [7.3] (proceedings unduly delayed); Burgoa v. Bolivia, CCPR/C/122/D/2628/2015, 28 March 2018 [11.8] (postponement of scheduled hearings because they were not duly communicated to the relevant department, the case file was not transmitted to that department, and the supervisory court postponed its ruling to await a separate decision of another court, contrary to constitutional jurisprudence). See also Italy CCPR/C/ITA/CO/6 (2017) 34 (excessive length of court proceedings). 97 Vojnović v. Croatia, CCPR/C/95/D/1510/2006, 30 March 2009 [8.4] (the overall length in the proceedings for the determination of the author’s tenancy (almost seven years) was unreasonable in the light of the negative effects of delaying the family’s return to Croatia, and the absence of an explanation justifying the delay). 98 Mukunto v. Zambia, CCPR/C/66/D/768/1997, 2 August 1999 [6.4] (claim for compensation for unlawful detention in 1982 still not determined by 1999). 99 Gonzalez v. Guyana, CCPR/C/98/D/1246/2004 25 March 2010 [14.2] (review of the constitu tionality of the ministerial decision (to register the author’s Cuban husband as a citizen) took

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child access (E.B. v. New Zealand);100 contesting suspension of a public servant for incompatible private business activities (Lederbauer v. Austria),101 and suspension of a police officer on accusations of having insulted a superior (Muñoz Hermoza v. Peru);102 and when pursuing payment of social benefits (Bolívar v. Venezuela).103 In her lengthy Dissenting Opinion in Lederbauer Ms Ruth Wedgwood reviewed the negotiating history of the Covenant and commented that it offers little support to the view that there is any strict time limit on an overall administrative process, or that any stage other than the appeal to a court is covered within the ambit of Article 14(1). She also reviewed the Committee’s Article 14 decisions in administrative law settings to caution against the Committee sitting as a fourth instance body in reviewing innumerable matters of administrative process, given its limited capacity and its overall vocation.104

Public Hearing The requirement that the hearing be ‘public’ applies both to civil and criminal proceedings,105 though it is more commonly emphasised that all trials in criminal matters must in principle be conducted orally and publicly to ensure the transparency of proceedings, an important safeguard for the interest of the individual and of society at large.106 The requirement applies to the trial, not to pre-trial decisions

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twenty eight months; subsequent failure to issue ruling in writing further delayed the proceed ings for more than two years). E.B. v. New Zealand, CCPR/C/89/D/1368/2005, 16 March 2007 [9.2] (three years and four months to resolve application for child access, within which it took twenty months for police to decide not to prosecute allegations of abuse). Lederbauer v. Austria, CCPR/C/90/D/1454/2006, 13 July 2007 [8.2] (no procedural action whatsoever in over seven and a half years). Hermoza v. Peru, Communication No. 203/1986, Supp. No. 40 (A/44/40) at 200, 4 November 1988 [11.3] (administrative review was kept pending for seven years). Bolívar v. Venezuela, CCPR/C/112/D/2085/2011, 16 October 2014 [7.2] [7.3] (thirteen years without a ruling). Individual Opinion of Ms Ruth Wedgwood (dissenting) in Lederbauer. On due process con cerns with administrative bodies, see Austria CCPR/C/79/Add.103 (1998) 12 (the nature and functions of autonomous administrative tribunals continued to raise ‘due process’ concerns); Benin CCPR/CO/82/BEN 1 (2004) 19 (conciliation tribunals were useful but (among other criticisms) the system of judicial confirmation in the courts did not afford all Art. 14 guarantees). For its application to an employment related dispute, see Van Meurs v. Netherlands, CCPR/C/ 39/D/215/1986, 11 July 1990 [6.1] [6.2] (if labour disputes are argued in oral hearing before a court, they fall within the requirement in Art. 14(1) that suits at law be held in public; that is a duty upon the State that is not dependent on any request, by the interested party, that the hearing be held in public). E.g., Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.11]; Saidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018 [9.3] (closed court hearings were disproportionate, even though there may be circumstances where it would be ‘strictly neces sary’ to close parts of a court proceeding in order to protect the private life of an underage victim); Khadzhiyev and Muradova v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018

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made by prosecutors and public authorities, such as Kavanagh v. Ireland in the decision to convene a Special Criminal Court.107 Under Article 14(1) courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society; when the interest of the private lives of the parties so requires; or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice.108 Courts must make information on the time and venue of the oral hearings available to the public and must provide adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account such matters as potential public interest in the case, duration of the oral hearing and the time the formal request for publicity has been made.109 The Committee commented in Van Meurs v. Netherlands that the failure of the court to make large court rooms available does not constitute a violation of the right to a public hearing, if in fact no interested member of the public is barred from attending an oral hearing.110 In Marinich v. Belarus part of the Committee’s Article 14(1) finding lay in the uncontested failure to take measures to accommodate the interested public in view of the role of the author as a public figure. Although court hearings were declared open to the public, representatives of political parties and NGOs were effectively barred from the court room. The court building was surrounded by police who prevented people from even approaching it. The hearings were held in a small room which could seat only twelve people.111 In many other cases the hearing was not open to the public at all.112 Even if the public is excluded from the trial, the judgment (including essential findings, evidence and legal reasoning) must be made public, except where the interest of juveniles otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.113

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[7.9] (friends and relatives of the author, as well as members of the public, or embassies were not allowed to be present). Kavanagh v. Ireland, CCPR/C/71/D/819/1998, 4 April 2001 [10.4]. GC 32 [28], [29]. See also UK CCPR/C/GBR/CO/6 (2008) 18 (concern that those whose cases were certified by the DPP for Northern Ireland were tried in the absence of a jury). Van Meurs v. Netherlands, CCPR/C/39/D/215/1986, 11 July 1990 [6.2]; Marinich v. Belarus, CCPR/C/99/D/1502/2006, 16 July 2010 [10.5]. Van Meurs v. Netherlands, CCPR/C/39/D/215/1986, 11 July 1990 [6.2]. Marinich v. Belarus, CCPR/C/99/D/1502/2006, 16 July 2010 [2.16], [10.5]. See, e.g., Shikhmuradova v. Turkmenistan, CCPR/C/112/D/2069/2011, 17 October 2014 [6.6] (court hearing was not open to public, and sentencing followed a separate and closed hearing); Mechani v. Algeria, CCPR/C/107/D/1807/2008, 22 March 2013 [8.8]. For some relevant Concluding Observations, see Guinea A/43/40 (1988) 253 (concern over the use of in camera procedures); Kyrgyzstan CCPR/CO/69/KGZ (2000) 15 and Syria CCPR/CO/71/SYR (2001) 15 (concern that proceedings may be held in camera in circumstances not authorised by Art. 14); Albania CCPR/C/ALB/CO/2 (2013) 17 (hearings often not public). GC 32 [29]. See also Poland CCPR/C/POL/CO/7 (2016) 7 (concern at the prime minister’s refusal to publish the Tribunal’s judgments of a certain period in 2016); Pakistan CCPR/C/PAK/

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Competent, Independent and Impartial Tribunal Established by Law

Competence Of the three essential properties of the tribunal charged with superintending a fair trial (competence, independence and impartiality), independence and impartiality are the most frequently the subject of Committee rulings. Although some claims are made specifically on the basis of lack of competence, and may result in decisions which may be taken to refer to lack of competence,114 such decisions tend not to be explicit.115 Competence is, however, raised more clearly in Concluding Observations.116 The trial of civilians in military or special courts has the potential to raise serious problems as far as the equitable, impartial and independent administration of justice is concerned.117 Although the Covenant does not prohibit the trial of civilians in military courts, such trials should be very exceptional and take place under conditions which genuinely afford the full guarantees in Article 14. It is for the State to demonstrate, with regard to the specific class of individuals at issue, that regular civilian courts are unable to conduct the trial; that other alternative forms of special or highsecurity civilian courts are inadequate to the task; and that recourse to military courts ensures the full protection of the rights of the accused.118 The State’s failure to demonstrate the particular need for reliance on a military court generally means that the Committee need not examine whether the military court, as a matter of fact, afforded the full Article 14 guarantees before it concludes that the trial and any sentence of that court

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116 117

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CO/1 (2017) 23 (written judgments explaining the reasons for conviction were not made public). Shikhmuradova v. Turkmenistan, CCPR/C/112/D/2069/2011, 17 October 2014 [6.6] (due weight given to the author’s allegations, which included that the People’s Council, a political body led by the president and including members of the parliament and cabinet ministers, cannot be considered as a competent, independent and impartial tribunal). E.g., Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [7.6] (claim that death sentence was pronounced by an ‘incompetent tribunal’ resulted in an Art. 14(1) finding in the absence of justification for trying a civilian before a military court). The same focus on issues of independence and impartiality rather than competence is reflected in the mandate of the Special Rapporteur on the Independence of Judges and Lawyers, established to examine among other things the link between the weakening of safeguards for the judiciary and lawyers (Commission on Human Rights Resolution 1994/41 (1994)). For reports of lack of judicial competence, see, e.g., El Salvador CCPR/CO/78/SLV (2003) 10; Viet Nam CCPR/CO/75/VNM (2002) 9; Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 19. GC 32 [22]. Examples of irregularity include Kulov v. Kyrgyzstan, CCPR/C/99/D/1369/2005, 26 July 2010 [8.6]; El Abani v. Libya, CCPR/C/99/D/1640/2007, 26 July 2010 [7.8]. Different rationales for disallowing military jurisdiction over civilians (particularly quality grounds) are canvassed by Dan Stigall in ‘An Unnecessary Convenience: the Assertion of the Uniform Code of Military Justice (UCMJ) over Civilians and the Implications of International Human Rights Law’, (2009) 17 Cardozo J. Int. & Comp. L., p. 59. Benhadj v. Algeria, CCPR/C/90/D/1173/2003, 20 July 2007 [8.8]; El Abani v. Libya, CCPR/C/ 99/D/1640/2007, 26 July 2010 [7.8].

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discloses a violation.119 The instances are extensive of military courts with jurisdiction over civilians,120 and as a separate matter the lack of suitable safeguards.121

Independence The right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception.122 The ‘tribunal’ contemplated in Article 14(1) is one that is established by law, independent of the executive and legislative branches of government, or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature.123 There would be obvious partiality, for example, if (as alleged in Mika Miha v. Equatorial Guinea) the president directly controls the judiciary.124 As the Committee put it in Bahamonde v. Equatorial Guinea, ‘a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant’.125 A qualifying tribunal need not formally be designated as a ‘court’. However, given the nature of administrative authorities, an important aspect of independence is that the matter is not decided by those which are ‘subject to directives’.126 The Committee issued a reminder in Cedeño v. Venezuela of the need for States to take specific measures to guarantee the independence of the judiciary, to protect 119 Madani v. Algeria, CCPR/C/89/D/1172/2003, 28 March 2007 [8.7]; Benhadj v. Algeria, CCPR/ C/90/D/1173/2003, 20 July 2007 [8.8]; Akwanga v. Cameroon, CCPR/C/101/D/1813/2008, 22 March 2011 [7.5]. 120 E.g., Algeria A/47/40 (1992) 284; Slovakia CCPR/C/79/Add.79 (1997) 20; Cameroon CCPR/ C/79/Add.116 (1999) 21; Serbia and Montenegro CCPR/CO/81/SEMO (2004) 20; Tajikistan CCPR/CO/84/TJK (2005) 18; Sudan CCPR/C/SDN/CO/4 (2014) 19; Rwanda CCPR/C/RWA/ CO/4 (2016) 33; Congo CCPR/C/COD/CO/4 (2017) 37; Pakistan CCPR/C/PAK/CO/1 (2017) 23; Sudan CCPR/C/SDN/CO/5 (2018) 39. 121 E.g., Peru CCPR/C/79/Add.67 (1996) 12 (members of the military courts were active duty officers, most without any legal training and no provision for sentences to be reviewed); Peru CCPR/CO/70/PER (2000) 12 (treason trials without Art. 14 guarantees); Uzbekistan CCPR/ CO/71/UZB (2001) 15 (military courts’ jurisdiction covering civil and criminal cases in exceptional cases, as determined by the executive); Egypt CCPR/CO/76/EGY (2002) 16(b) (no guarantees of independence and their decisions were not subject to appeal before a higher court); Congo CCPR/C/COD/CO/3 (2006) 21 (absence of fair trial guarantees); Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 20 (military personnel and civilians were jointly accused); Tajikistan CCPR/C/TJK/CO/2 (2013) 19 (military personnel and civilians were jointly accused); Thailand CCPR/C/THA/CO/2 (2017) 31 (no right of appeal); Lebanon CCPR/C/ LBN/CO/3 (2018) 43 (the broad jurisdiction of military courts extended to civilians, including children). 122 Del Rio v. Peru, CCPR/C/46/D/263/1987, 28 October 1992 [5.2]. 123 GC 32 [18]. 124 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990 (1994), 16 October 1992 [6.7]. 125 Bahamonde v. Equatorial Guinea, CCPR/C/49/D/468/1991, 20 October 1993 [9.4]. 126 Nowak, CCPR Commentary, p. 319.

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judges from any form of political influence, and to establish clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and for disciplinary sanctions against them. The author’s uncontested claim was that provisional judges were installed who were not secure in their positions, they could be removed at will without any predefined procedure, and that those who did not follow instructions from the executive branch were subject to reprisals. The judge who ordered the release of the author was arrested without a warrant in retaliation for doing so, and the president referred to the judge in the media the following day as a ‘bandit’.127 Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.128 The chapter on Article 25 examines a number of cases in which the dismissal of a judge constituted an attack on the independence of the judiciary, in violation of Article 25, read in conjunction with Article 14(1).129 Lack of judicial independence often goes hand-in-hand with secrecy of proceedings.130 Where the lack of independence is not obvious the author may be required to show how they were personally affected.131 Among the most commonly occurring factors which compromise judicial independence, as evidenced in Concluding Observations, is exposure to executive interference and intervention, including in the appointment, termination and disciplining of members of the judiciary, and the composition and accountability of courts.132 The situation is often exacerbated by lack of security of tenure, 127 Cedeño v. Venezuela, CCPR/C/106/D/1940/2010, 29 October 2012 [7.2] [7.3]. 128 GC 32 [20]. 129 See chapter on Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service, section ‘Dismissal of a Judge as an Attack on the Independence of the Judiciary’. 130 E.g., Al Rabassi v. Libya, CCPR/C/111/D/1860/2009, 18 July 2014 [2.7], [7.6] (the People’s Court, was created to try political offences outside the ordinary judicial system; it was not independent from the executive, and its hearing was held in private session which not even family members could attend); also Il Khwildy v. Libya, CCPR/C/106/D/1804/2008, 1 November 2012 [7.9] (hearings were held in secret and even close relatives could not attend). 131 Bandajevsky v. Belarus, CCPR/C/86/D/1100/2002, 28 March 2006 [10.8] (the State did not respond to the allegation that courts were not independent because judges were nominated by the president, but no violation as no relevant information was provided by the author as to how he was personally affected). 132 E.g., Zambia CCPR/C/79/Add.62 (1996) 16; Slovakia CCPR/C/79/Add.79 (1997) 18; Romania CCPR/C/79/Add.111 (1999) 4; Congo CCPR/C/79/Add.118 (2000) 14; Peru CCPR/CO/70/ PER (2000) 10; Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 7; Sri Lanka CCPR CCPR/CO/79/LKA (2003) 16; Serbia and Montenegro CCPR/CO/81/SEMO (2004) 19; Madagascar CCPR/C/MDG/CO/3 (2007) 26; Tunisia CCPR/C/TUN/CO/5 (2008) 17; Jordan CCPR/C/JOR/CO/4 (2010) 12; Iran CCPR/C/IRN/CO/3 (2011) 22; Kazakhstan CCPR/C/KAZ/ CO/1 (2011) 21; Burundi CPR/C/BDI/CO/2 (2014) 19; Mauritania CCPR/C/MRT/CO/1 (2013) 20; Ukraine CCPR/C/UKR/CO/7 (2013) 17; Azerbaijan CCPR/C/AZE/CO/4 (2016) 26; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 37; Kuwait CCPR/C/KWT/CO/3 (2016) 30; Poland CCPR/C/POL/CO/7 (2016) 33; Rwanda CCPR/C/RWA/CO/4 (2016) 33; Cameroon CCPR/C/

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through probationary, regularly reviewable, initial or short-term appointments,133 combined with the threat of disciplinary measures on dubious grounds, such as controversial interpretation of the law.134 Disciplinary proceedings against judges sometimes lack due process safeguards.135 Judicial appointments and dismissals should be made according to objective criteria of competence and independence.136 Independence is obviously undermined by threats, harassment and intimidation, without effective protection and security measures in place,137 but simple under-remuneration is also capable of exposing judges to risks of bribery and corruption.138 There are persistent allegations of corruption within the judiciary across many countries,139 with negative impact on the full enjoyment of broader Covenant rights. A truly independent judiciary is a firm guarantee of the rights of individuals and nothing should be done to impair that independence.140 The remedial

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CMR/CO/5 (2017) 37; Dominican Republic CCPR/C/DOM/CO/6 (2017) 27; Madagascar CCPR/C/MDG/CO/4 (2017) 45; Algeria CCPR/C/DZA/CO/4 (2018) 39; Hungary CCPR/C/ HUN/CO/6 (2018) 11; Lebanon CCPR/C/LBN/CO/3 (2018) 41. E.g., Peru CCPR/C/79/Add.67 (1996) 14 (seven years); Lithuania CCPR/C/79/Add.87 (1997) 16 (review after five years); Kyrgyzstan CCPR/CO/69/KGZ (2000) 15 (re evaluation every seven years); Syria CCPR/CO/71/SYR (2001) 15 (four years); Uzbekistan CCPR/CO/71/UZB (2001) 14 (five years); Azerbaijan CCPR CCPR/CO/73/AZE (2001) 14; Georgia CCPR/CO/74/ GEO (2002) 12; Moldova CCPR/CO/75/MDA (2002) 12; Viet Nam CCPR/CO/75/VNM (2002) 10 (four years); Moldova CCPR/C/MDA/CO/2 (2009) 24 (five years); Kuwait CCPR/ C/KWT/CO/2 (2011) 26; Uzbekistan CCPR/C/UZB/CO/4 (2015) 21; Moldova CCPR/C/ MDA/CO/3 (2016) 29 (five years, and may become permanent only after that (Art. 14); Algeria CCPR/C/DZA/CO/4 (2018) 39 (tenured only after serving ten years); Guatemala CCPR/C/GTM/CO/4 (2018) 30 (five years); Serbia CCPR/C/SRB/CO/3 (2017) 34. E.g., Uzbekistan CCPR/CO/71/UZB (2001) 14 (‘incompetent rulings’); Viet Nam CCPR/CO/ 75/VNM (2002) 10 (‘errors’); Ecuador CCPR/C/ECU/CO/6 (2016) 25 (‘inexcusable error’); Kazakhstan CCPR/C/KAZ/CO/2 (2016) 37 (sanctions for controversial interpretation of the law). See also HK SAR CCPR/C/79/Add.117 (1999) 10 (serious concern that a request by the executive for a judicial re interpretation could be used to undermine the right to a fair trial); China (Macao) CCPR/C/CHN MAC/CO/1 (2013) 6 (similar concern that the power of inter pretation is vested in the Standing Committee of the National People’s Congress). E.g., Honduras CCPR/C/HND/CO/2 (2017) 34. E.g., Paraguay CCPR/C/PRY/CO/2 (2006) 17; Montenegro CCPR/C/MNE/CO/1 (2014) 15; Ukraine CCPR/C/UKR/CO/7 (2013) 17. See also Honduras CCPR/C/HND/CO/1 (2006) 16. E.g., Argentina CCPR/C/79/Add.46 (1995) 12; Brazil CCPR/C/79/Add.66 (1996) 11; Honduras CCPR/C/HND/CO/2 (2017) 34; Pakistan CCPR/C/PAK/CO/1 (2017) 33. E.g., Cape Verde CCPR/C/CPV/CO/1 (2012) 15. See also Georgia CCPR/CO/74/GEO (2002) 12 (concern that delays in the payment of salaries affects the independence of the judiciary). E.g., Brazil CCPR/C/BRA/CO/2 (2005) 17; Central African Republic CCPR/C/CAF/CO/2 (2006) 16; Chad CCPR/C/TCD/CO/1 (2009) 26; Moldova CCPR/C/MDA/CO/2 (2009) 23; Rwanda CCPR/C/RWA/CO/3 (2009) 17; Bulgaria CCPR/C/BGR/CO/3 (2011) 20; Mongolia CCPR/C/MNG/CO/5 (2011) 17; Armenia CCPR/C/ARM/CO/2 (2012) 22; Azerbaijan CCPR/ C/AZE/CO/3 (2009) 12; Angola CCPR/C/AGO/CO/1 (2013) 20; Côte d’Ivoire CCPR/C/CIV/ CO/1 (2015) 20; Burkina Faso CCPR/C/BFA/CO/1 (2016) 31; Cameroon CCPR/C/CMR/CO/5 (2017) 9, 37; Moldova CCPR/C/MDA/CO/3 (2016) 29; Mongolia CCPR/C/MNG/CO/6 (2017) 31; Romania CCPR/C/ROU/CO/5 (2017) 7; Turkmenistan CCPR/C/TKM/CO/2 (2017) 30. E.g., Guyana A/37/40 (1982) 259. The concepts of independence and impartiality are discussed in a comparison of European and UN approaches by Roger Gamble and Noel Dias,

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recommendation is typically that the State concerned promptly and thoroughly investigate all incidents of suspected corruption and, if established, respond with penal, not just disciplinary, sanctions,141 important though disciplinary measures are. Among the appropriate standards suggested are the Basic Principles on the Independence of the Judiciary.142 Human Rights Council Resolution 23/6 on Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers has also been recommended as a guide.143

Impartiality The requirement of judicial impartiality has two aspects. The first is subjective, and must be presumed until there is evidence to the contrary, that judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them,144 nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.145 In Larrañaga v. Philippines the incompatibility with Article 14(1) was that the trial judge and two judges in appellate proceedings were involved in the evaluation of the preliminary charges against the author. It was such as to allow them to form an opinion on the case prior to the trial and appeal proceedings.146 The second is objective, that the tribunal must also appear, to a reasonable observer, to be impartial. The standpoint of those claiming that there is a reason to doubt impartiality is significant but not decisive. What is decisive is whether the fear can be objectively justified, as it was in Lagunas Castedo v. Spain when the reporting judge in the judicial review of a process in which the author was not appointed to an academic position was an associate lecturer at the university to which she had applied.147 By contrast in Jenny v. Austria remarks made by the judge raised concerns in the author about his impartiality (the judge expressed doubts over whether the

141 142 143

144 145

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‘Independence, Impartiality and Scrutiny: the Essence of Fair Trial Protection’, (2007) 19 Sri Lanka J. Int. L., p. 271. E.g., Georgia CCPR/CO/74/GEO (2002) 12; Yemen CCPR/C/YEM/CO/5 (2012) 17. E.g., Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 18. Independence and Impartiality of the Judiciary, Jurors and Assessors, and the Independence of Lawyers, 19 June 2013, A/HRC/RES/23/6 referred to, e.g., at El Salvador CCPR/C/SLV/CO/7 (2018) 36 (criticising the process of selecting and appointing judges). The Basic Principles on the Independence of the Judiciary endorsed by General Assembly in 1985 GA Res 40/32 of 29 November 1985 and 40/146 of 13 December 1985 offered a source of early guidance. Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [10.2]. Karttunen v. Finland, CCPR/C/46/D/387/1989, 23 October 1992 [7.2]: ‘“impartiality” . . . implies that judges . . . must not act in ways that promote the interests of one of the parties’. For an example of manifest partiality, see Nasheed v. Maldives, CCPR/C/122/D/2270 & 2851/ 2013, 4 April 2018 [8.3] (on a charge of ordering the military to abduct a serving judge two of the three judges presiding over the case were not only close friends of the abducted judge and present at his arrest, but submitted witness statements on his behalf to the police). Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.9]. Castedo v. Spain, CCPR/C/94/D/1122/2002, 20 October 2008 [9.8].

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author in civil proceedings had sued the right parties and asked why he had not sued a third party) but were not such as to objectively justify the author’s fears.148 Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be fair or impartial.149 In Peterer v. Austria the Committee found a violation because one member of a civil adjudicating body resumed his chairmanship of it after a challenge against him by the author in the same set of proceedings, which raised doubts about the impartial character of the body, and a temporary substitute chairman did not recuse himself even though the author had made criminal allegations against him (albeit unsuccessfully).150 Impartiality may be evident in various Article 14 irregularities, such as (in Khostikoev v. Tajikistan) not allowing the author’s lawyer to study the case file prior to the trial; preventing his lawyer from participating in the initial stage of the trial; failure to address statutory limitation periods that applied in favour of the author; and denial of the right to adduce relevant evidence. The most telling allegation was that the presiding judge made oral remarks to the effect that if the author brought a letter from the president of the Republic he would ‘obtain gain’ in his case.151 It was successfully alleged in Marinich v. Belarus (in support of lack of independence and bias) that the judges were acting under instructions from the authorities, and that during recesses KGB officers and the judge held consultations without witnesses.152 In a trial by jury, the need to evaluate facts and evidence independently and impartially also applies to the jury. It is important therefore that all the jurors be placed in a position in which they may assess the facts and the evidence in an objective manner, so as to be able to return a just verdict.153 There is no right, as such, to trial by jury under Article 14, either in civil or criminal proceedings, ‘rather the touchstone is that all judicial proceedings, with or without a jury, comport with the guarantees of fair trial’.154 148 Jenny v. Austria, CCPR/C/93/D/1437/2005, 9 July 2008 [9.3] [9.6]. 149 Karttunen v. Finland, CCPR/C/46/D/387/1989, 23 October 1992 [7.2] [7.3]. 150 Perterer v. Austria, CCPR/C/81/D/1015/2001, 20 July 2004 [2.2], [2.3], [10.2] [10.4]. For an effective factual rebuttal of claimed bias, see Lederbauer v. Austria, CCPR/C/90/D/1454/2006, 13 July 2007 [7.7]. 151 Khostikoev v. Tajikistan, CCPR/C/97/D/1519/2006, 22 October 2009 [7.2]. See also Saidov v. Tajikistan, CCPR/C/81/D/964/2001, 8 July 2004 [6.7] (the judge conducted the trial in a biased manner and refused to consider the revocation of the confessions); cf. Dranichnikov v. Australia, CCPR/C/88/D/1291/2004, 20 October 2006 [7.2] (substantial delay in considering a refugee claim was caused by the totality of the proceedings, not just by the tribunal). 152 Marinich v. Belarus, CCPR/C/99/D/1502/2006, 16 July 2010 [2.16], [10.5]. 153 Mulai v. Guyana, CCPR/C/81/D/811/1998, 20 July 2004 [6.1], [6.2]. 154 Wilson v. Australia, CCPR/C/80/D/1239/2004, 1 April 2004 [4.4]; Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, 17 March 2009 [6.4]. On jury irregularity, see Ricketts v. Jamaica,

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Article 14 does not necessarily prohibit the creation of criminal courts with special jurisdiction if that is permitted under domestic legislation (i.e., if they are ‘established by law’) and those courts operate in conformity with all Article 14 guarantees. Other elements are needed to prove partiality.155 Courts based on customary law cannot hand down binding judgments unless proceedings before those courts are limited to minor civil and criminal matters; proceedings meet the basic requirements of fair trial and other relevant Covenant guarantees (not just those under Article 14); their judgments are validated by State courts in the light of those guarantees; and are capable of challenge by the parties against those criteria.156 The same principle applies also to religious courts, such as Sharia courts in Ethiopia which were capable of reaching binding decisions which could not be appealed against in substance.157 Article 14 requirements were also not met in Botswana because customary courts forbade legal representation,158 and in Rwanda because the gacaca system failed to secure the impartiality of judges and protection of the rights of the accused.159 In Australia criminal law existed alongside Aboriginal customary law, and rendered criminal certain customary penalties, but there remained the risk of double jeopardy (Article 14(7)).160 The proceedings of special tribunals of ‘faceless judges’, used to preserve their anonymity, for example, in terrorist matters,161 suffer from irregularity not only because the identity and status of the judges are not made known to the accused, and cannot be challenged,162 but often also because of the coincidence with other procedural irregularities.163 The Committee in Polay Campos v. Peru described as

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156 157 158 160

161 162 163

CCPR/C/74/D/667/1995, 4 April 2002 [7.2] (there was no violation when the jury foreman announced that the verdict was accepted by all jurors when four did not accept it, as the irregularity was not raised before the trial judge or on appeal). Manzano v. Colombia, CCPR/C/98/D/1616/2007, 19 March 2010 [6.5]. See also Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002, 6 November 2003 [7.4] (a parole board acting in a judicial fashion when determining the lawfulness of continued detention, and subject to judicial review, was sufficiently independent and impartial). GC 32 [24]; Rwanda CCPR/C/RWA/CO/3 (2009) 17. Ethiopia CCPR/C/ETH/CO/1(2011) 22. See also Iran CCPR/C/IRN/CO/3 (2011) 22 (judges used Sharia law and fatwas to reach a verdict in contravention of Art.14). Botswana CCPR/C/BWA/CO/1 (2008) 21. 159 Rwanda CCPR/C/RWA/CO/3(2009) 17. Australia A/38/40 (1983) 148, 169. For Committee questioning on the operation of customary law, see also New Zealand (Cook Islands) A/40/40 (1985) 441 (was recourse to customary law encouraged); Zambia A/43/40 (1988) 132 (traditional courts had limited powers relating to matters coming under customary law such as divorce and inheritance); Cameroon A/44/40 (1989) 468 (the relationship of customary courts with the courts of modern law); Swaziland CCPR/C/SWZ/CO/1 (2017) 38 (the traditional justice system did not meet fair trial standards). E.g., Casafranca v. Peru, CCPR/C/78/D/981/2001, 22 July 2003 [7.3]; Arredondo v. Peru, CCPR/C/69/D/688/1996, 14 August 2000 [10.5]. Carranza v. Peru, CCPR/C/85/D/1126/2002, 28 October 2005 [7.5]. Gutiérrez Vivanco v. Peru, CCPR/C/74/D/678/1996, 26 March 2002 [7.1] (trial was held in private, the author was unable to summon as witnesses police officers who arrested and interrogated him, or question other witnesses, because the law did not allow this; lawyer of

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follows the issues posed by tribunals comprising faceless judges, impartialty prominent among them: [S]uch trials by special tribunals composed of anonymous judges are incompatible with Article 14 of the Covenant. It cannot be held against the author that she furnished little information about her husband’s trial: in fact, the very nature of the system of trials by ‘faceless judges’ in a remote prison is predicated on the exclusion of the public from the proceedings. In this situation, the defendants do not know who the judges trying them are and unacceptable impediments are created to their preparation of their defence and communication with their lawyers. Moreover, this system fails to guarantee a cardinal aspect of a fair trial within the meaning of article 14 of the Covenant: that the tribunal must be, and be seen to be, independent and impartial. In a system of trial by ‘faceless judges’, neither the independence nor the impartiality of the judges is guaranteed, since the tribunal, being established ad hoc, may comprise serving members of the armed forces. In the Committee’s opinion, such a system also fails to safeguard the presumption of innocence, which is guaranteed by article 14, paragraph 2. In the circumstances of the case, the Committee concludes that paragraphs 1, 2 and 3 (b) and (d) of article 14 of the Covenant were violated.164

Established by Law According to the terms of Article 14 the relevant tribunal must be ‘established by law’. The composition of the court was successfully challenged as unlawful in Bandajevsky v. Belarus because, pursuant to a Supreme Council decision, people’s jurors (assessors) in military courts were required to be in active military service. In the hearing against the author the court was improperly constituted because only the presiding judge was a member of the military but not the jurors.165

A RT I C L E 1 4 ( 2 ) : PR E S U M P T I O N O F I N N O C E NC E F O R ANYONE CHARGED WITH A CRIMINAL OFFENCE The presumption of innocence imposes on the prosecution the burden of proving any criminal charge; it guarantees that no guilt can be presumed until the charge choice was restricted; and the government prosecutor was obliged by law to bring charges); Guerra de la Espriella v. Colombia, CCPR/C/98/D/1623/2007, 18 March 2010 [9.2] (exclusion of the public, the accused and their lawyer); Mechani v. Algeria, CCPR/C/107/D/1807/2008, 22 March 2013 [8.8] (victim sentenced to life imprisonment after a closed trial, by anonymous judges, without ever being heard, as he had been a victim of enforced disappearance since his arrest). See also the other cases and circumstances cited in GC 32 [23]. 164 Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997 [8.8], citing A/51/40 (1996) [350], [363]. See also Colombia CCPR/C/79/Add.76 (1997) 21 (the Committee emphasising that a system which provides for faceless judges and anonymous witnesses does not comply with Art. 14, particularly Art. 14(3)(b) and (e)). 165 Bandajevsky v. Belarus, CCPR/C/86/D/1100/2002, 28 March 2006 [10.10].

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has been proved beyond reasonable doubt; it ensures that the accused has the benefit of doubt; and it requires that the accused is treated in accordance with this principle.166 A number of incidents usually combine in the conduct of a trial to demonstrate that an accused did not benefit from the presumption of innocence. In Larrañaga v. Philippines these included not permitting a key alibi defence on charges of kidnapping and raping two women, the trial judge putting a number of leading questions to the prosecution (suggesting the author was not presumed innocent), and not treating cautiously incriminating evidence provided by an accomplice charged with the same crime (when the accomplice was found to lie about his previous criminal convictions, was granted immunity from prosecution, and eventually admitted to raping one of the victims).167 In Sobhraj v. Nepal the Committee found a violation of Article 14(2) because, on murder charges, key evidence against the author consisted merely of photocopies of hotel registration cards to establish his presence in the vicinity at the time of the murder. The author’s expert evidence was that the photocopies were practically impossible to read and were obviously forged. Despite orders for the prosecution to produce originals and its failure to do so, the court did not dismiss the case. It was for the prosecution to dispel such doubts once raised.168 Although the denial of bail is not a priori contrary to Article 14(2), an excessive period of pre-trial detention in Cagas et al. v. Philippines, of more than nine years, manifestly was.169 Defendants should normally not be shackled or caged during their trial, or otherwise presented to the court in a manner indicating that they may be dangerous criminals.170 The media too should avoid news coverage undermining the 166 GC 32 [30]; often cited, e.g., Ashurov v. Tajikistan, CCPR/C/89/D/1348/2005, 20 March 2007 [6.7]; Zhuk v. Belarus, CCPR/C/109/D/1910/2009, 30 October 2013 [8.4]; Kozulin v. Belarus, CCPR/C/112/D/1773/2008, 21 October 2014 [9.8]. For instances of reversal of proof consid ered in country reports, see Mauritius A/44/40 (1989) 519, 520 (the burden of proof lay with the accused under the Official Secrets Act); Sri Lanka CCPR/C/LKA/CO/5 (2014) 11 (reversal of the burden of proof when detainees alleged that they had made confessions as a result of torture or ill treatment); Sweden CCPR/C/SWE/CO/6 (2009) 21 and Sweden CCPR/C/SWE/CO/7 (2016) 38 (de facto discrimination against the Sami in legal disputes, since the burden of proof for land ownership was placed wholly on Sami claimants). 167 Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.4]. On the treatment of accomplice evidence, see also Arutyuniantz v. Uzbekistan, CCPR/C/83/D/971/2001, 30 March 2005 [6.3], [6.5]. 168 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [3.2], [7.3]. See also J.O. v. France, CCPR/C/101/D/1620/2007/Rev.2, 23 March 2011 [9.5] [9.6] (on a charge of collecting unem ployment benefits while engaged in undeclared gainful employment the limited opportunity for defence available to the author resulted in a disproportionate burden of proof on the author, in violation of Art. 14(2)). 169 Cagas et al. v. Philippines, CCPR/C/73/D/788/1997, 23 October 2001 [7.3]. 170 Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108 & 1121/2002, 27 March 2007 [7.4] (the authors were placed in a metal cage and were handcuffed; a high ranked official publicly stated at the beginning of the trial that their handcuffs could not be removed because they were

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presumption of innocence, for example, by publishing photographs of the accused behind metal bars in the courtroom.171 All public authorities have a duty to refrain from pre-judging the outcome of a trial, which is often breached when officials make public statements portraying the author’s guilt, including by announcing that they are sure that the person charged is the murderer (Gridin v. Russian Federation) or a traitor (Khadzhiyev and Muradova v. Turkmenistan);172 by characterising them as a ‘bandit’ or fugitive (Cedeño v. Venezuela); by investigators forcing the admission of guilt on national television (Khalilova v. Tajikistan), or broadcasting episodes of interrogation (Marinich v. Belarus).173 The Committee established in Rameka et al. v. New Zealand (amid strong dissent) that preventive detention for protective purposes avoids offending the all dangerous criminals and could escape); Zinsou v. Benin, CCPR/C/111/D/2055/2011, 18 July 2014 [7.3] (the author was required to appear at public hearing handcuffed and wearing a jacket indicating his place of detention); Kozulin v. Belarus, CCPR/C/112/D/1773/2008, 21 October 2014 [9.8] (the victim was placed in a cage during the trial). 171 GC 32 [30]. Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 20 July 2000 [3.5], [8.3] (radio stations and newspapers announced that the author was the feared ‘lift boy’ murderer); Saidov v. Tajikistan, CCPR/C/81/D/964/2001, 8 July 2004 [6.6] (extensive adverse pre trial coverage by State directed media designated the author and his co charged as criminals); Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.4] (public statements made by senior officials portraying the author as guilty were given very extensive media coverage); Engo v. Cameroon, CCPR/C/96/D/1397/2005, 22 July 2009 [3.6], [7.6] (public accusations of arms dealing in the press as part of a State media propaganda campaign); Kovaleva et al. v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012 [3.5], [11.4] (one news agency presented the preliminary investigation as fait accompli; the author was kept in a metal cage throughout the court proceedings and the photographs of him behind metal bars in the court room were published); Zhuk v. Belarus, CCPR/C/109/D/1910/2009, 30 October 2013 [8.4] (mass media made materials of the preliminary investigation available to the public at large before the consideration of the author’s case; photographs of him behind metal bars in the courtroom were published in the local media); Grishkovtsov v. Belarus, CCPR/C/113/D/2013/ 2010 [8.4] (the author was shackled and kept in a metal cage during the court hearings; photographs of him behind metal bars in the courtroom were published in the media). 172 Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 20 July 2000 [3.5], [8.3] (the head of the police announced that he was sure that the author was the murderer, and this was broad casted on television); Khadzhiyev and Muradova v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018 [7.10] (the author and several of her colleagues were pronounced by then President Niyazov only a day after her arrest as traitors who should be condemned). See also Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.8]. 173 Khalilova v. Tajikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.4] (the author’s son was forced to admit guilt on at least two occasions during the investigation on national television); Marinich v. Belarus, CCPR/C/99/D/1502/2006, 16 July 2010 [10.6] (episodes of the interroga tion were broadcast on TV accompanied with false and degrading comments about the author suggesting that he was guilty); Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.5] (police media announcements that the author was culpable); Cedeño v. Venezuela, CCPR/ C/106/D/1940/2010, 29 October 2012 [7.3] (the president called the author a ‘bandit’ and accused him of having ‘fled’ on radio and TV); Zhuk v. Belarus, CCPR/C/109/D/1910/2009, 30 October 2013 [8.4] (several State officials made public statements about the accused’s guilt before his conviction); Kozulin v. Belarus, CCPR/C/112/D/1773/2008, 21 October 2014 [9.8] (the Minister of Interior designated the author as a culprit on a public television station immediately after his arrest, and the Procurator General’s Office issued a similar statement).

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presumption of innocence, provided all necessary safeguards are available and in fact enjoyed (including those in Articles 9 and 10), because no charge is laid to attract the application of Article 14(2).174 The presumption of innocence does not apply in civil matters. It was unsuccessfully asserted in Morael v. France in response to the operation of bankruptcy legislation which raised a ‘presumption of responsibility’ on the part of company managers in the absence of proof of their diligence. It did not relate to a criminal charge.175 The presumption has also been found inapplicable to civil proceedings for compensation.176

A RT I C L E 1 4 ( 3 ) : C R I M I N A L C H A R G E S : MI N I M U M G U A R A N T E E S ( I N FU L L EQ U A L I T Y ) The stipulations in Article 14(3) constitute minimum guarantees. Their observance is not always sufficient to ensure the fairness of a hearing required by Article 14(1).177 In some cases of multiple Article 14(3) irregularity the Committee decides to conclude that ‘taken as a whole’ (or similar terminology) they amount to a violation of Article 14(1).178 In others it makes individual findings under each applicable Article 14(3) provision, or selected provisions, without a separate Article 14(1) finding. Article 14(3)(a): Promptly be Informed of the Charge against the Accused Article 14(3)(a) expresses the accused’s right to be informed promptly of the nature and cause of any charge against them, in a language which they understand. 174 Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002, 6 November 2003 [7.4]. See Individual Opinion of Mr Rajsoomer Lallah, whose analysis concluded that only part of the sentence was left to the trial court, with the remainder in the hands of an administrative body, without the due process guarantees of Art. 14, including Art. 14(2), because the anticipatory assessment involved could not conceivably meet the essential burden of proof required. Mr Prafullachandra Natwarlal Bhagwati, Ms Christine Chanet, Mr Glèlè Ahanhanzo and Mr Hipólito Solari Yrigoyen also dissented (in part) because to rely on a prediction of dangerous ness is tantamount to replacing presumption of innocence by presumption of guilt. 175 Morael v. France, Communication No. 207/1986, Supp. No. 40 (A/44/40) at 210, 28 July 1989 [9.5]. 176 W.J.H. v. Netherlands, CCPR/C/45/D/408/1990, 22 July 1992 [6.2]; W.B.E. v. Netherlands, CCPR/C/46/D/432/1990, 23 October 1992 [6.6]. 177 General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984 [5]. 178 Gunan v. Kyrgyzstan, CCPR/C/102/D/1545/2007, 25 July 2011 [6.4]; Zhuk v. Belarus, CCPR/ C/109/D/1910/2009, 30 October 2013 [8.6]. See also Carranza v. Peru, CCPR/C/85/D/1126/ 2002 CCPR/C/85/D/1126/2002, 28 October 2005 [7.5]; Guerra de la Espriella v. Colombia, CCPR/C/98/D/1623/2007, 18 March 2010 [9.3].

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It is related to both components of Article 14(3)(b) (to have adequate time and facilities for the preparation of the defence, and to communicate with chosen counsel) which would be pointless without knowing the charge that has to be answered.179 The Committee found all such elements were violated in Sobhraj v. Nepal, because the author lacked access to an interpreter from the time of arrest and a lawyer at the initial phase of the procedure.180 The requirements of Article 14(3)(a) are met by stating the charge either orally, if later confirmed in writing, or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based.181 It should occur as soon as the charge is first made by a competent authority.182 In principle Article 14(3)(a) does not apply to those remanded in custody without charge pending the result of police investigations,183 who primarily benefit from the right in Article 9(2) to be informed of the reasons for arrest, at the time, and to be informed promptly of any charges when laid.184 However, both Article 14(3)(a) and Article 9(2) were violated in Khoroshenko v. Russian Federation, because the author was not informed of some charges until twentyfive days after his arrest and he learnt of the balance of the charges only at the end of the pre-trial investigation,185 and in Medjnoune v. Algeria in circumstances of incommunicado detention.186 Article 14(3)(b): Adequate Time and Facilities for Preparation of Defence and to Communicate with Counsel Article 14(3)(b) has two discrete elements, both concerned with the principle of equality of arms: adequate time and facilities for the preparation of the defence; and the right to communicate with counsel of one’s own choosing. Askarov v. Kyrgyzstan 179 Salikh v. Uzbekistan, CCPR/C/95/D/1382/2005, 30 March 2009 [9.4]. For extensive delay, see Engo v. Cameroon, CCPR/C/96/D/1397/2005, 22 July 2009 [7.7] (the author waited several months to be informed of the charges against him and to be given access to the case file); and on the effect of delay in presenting the charges to a detainee, see Kurbanov v. Tajikistan, CCPR/C/ 79/D/1096/2002, 6 November 2003 [7.3]. 180 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [7.2] (violation of Art. 14(3)(a), (b) and (d)). 181 GC 32 [31]. For practical context in which the requirements were not met, see, e.g., Czechoslovakia CCPR A/41/40 (1986) 339 (accused had no knowledge of Czech and not always promptly informed of the charges in a language they understood); Estonia CCPR/C/ EST/CO/3 (2010) 12 (concern that mentally disabled or their legal guardians were often denied the right to be sufficiently informed about criminal proceedings and charges, the right to a fair hearing and the right to adequate and effective legal assistance). 182 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [5.4]. 183 Khachatrian v. Armenia, CCPR/C/85/D/1056/2002, 28 October 2005 [6.4]. 184 Kelly v. Jamaica, CCPR/C/41/D/253/1987 at 60, 17 October 1989 [5.8] (violation of Art. 14(3)(a) because the author was not apprised in any detail of the reasons for his arrest for several weeks following his apprehension and was not informed about the facts of the crime in connection with which he was detained or about the identity of the victim). 185 Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.2], [9.6]. 186 Medjnoune v. Algeria, CCPR/C/87/D/1297/2004, 14 July 2006 [8.6].

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demonstrates the range of allegations which may support an Article 14(3)(b) finding. The author was charged with offences concerning an incident of crowd disorder (allegedly at the author’s instigation) at which a police officer died. The police and prosecutor refused to allow the author to meet with his lawyer in private (the police terminated one of the only private meetings they had after ten minutes, and throughout a two-month investigation they had less than two hours together to discuss the case), and withheld information necessary to prepare for his defence; relatives of the deceased police officer physically attacked the author’s lawyer at the police station and at the prosecutor’s office, without protective intervention, creating a general sense of fear that was incompatible with the proper execution of a defence lawyer’s functions; and the author’s lawyer was notified late of the hearings, preventing him from attending when the court heard sixteen prosecution witnesses.187 Article 14(3)(b) is particularly important at pre-trial stages, and the accused is most vulnerable to the harmful consequences of its denial when in pre-trial detention.188 It also applies to appeal proceedings.189 Closely related is the right to defend oneself through legal assistance in Article 14(3)(d).190

Adequate Time and Facilities ‘Adequate time’ for the preparation of the defence is assessed in individual circumstances.191 It applies both to trial and appeal.192 The Committee has made findings under both Article 14(3)(b) and (d) in a number of cases when the judge refused an adjournment because defence lawyers were recently appointed to act.193 187 Askarov v. Kyrgyzstan, CCPR/C/116/D/2231/2012, 31 March 2016 [8.7]. For another example of failure to notify of a public hearing (leaving only 24 hours to prepare), see Spisso v. Venezuela, CCPR/C/119/D/2481/2014, 17 March 2017 [7.10]. 188 Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016 [9.5] (violation of Art. 14(3)(b) when a 16 year old asked investigators to arrange for his mother to be present to help him choose a lawyer but was informed that no visits were allowed). 189 Graham and Morrison v. Jamaica, CCPR/C/56/D/461/1991, 25 March 1996 [10.5]. 190 For examples of dual findings under Art. 14(3)(b) and (d), see Engo v. Cameroon, CCPR/C/96/ D/1397/2005, 22 July 2009 [7.8]; Pustovalov v. Russian Federation, CCPR/C/98/D/1232/2003, 23 March 2010 [8.4]; Zhuk v. Belarus, CCPR/C/109/D/1910/2009, 30 October 2013 [8.5]. 191 Collins v. Jamaica, CCPR/C/47/D/356/1989, 25 March 1993 [8.1] (convicted prisoner under sentence of death); Shikhmuradova v. Turkmenistan, CCPR/C/112/D/2069/2011, 17 October 2014 [6.6] (sentence of twenty five years’ imprisonment following a trial held only four days after arrest); Paraguay CCPR/C/PRY/CO/3 (2013) 24 (concern at the procedures followed to impeach former president, particularly the time allowed for the preparation and presentation of a defence); France CCPR/C/FRA/CO/5 (2015) 10 (concern at the possibility of trying suspects in immediate hearings of terrorist matters). For a review of the ‘adequate time’ requirements under Art. 14(3)(b), see Roger Gamble and Noel Dias, ‘International Fair Trial Protections in Criminal Trials’, (2008) 20 Sri Lanka J. Int. L., p. 25. 192 Little v. Jamaica, CCPR/C/43/D/283/1988, 1 November 1991 [8.4]. 193 Philip v. Trinidad and Tobago, CCPR/C/64/D/594/1992, 20 October 1998 [7.2] (counsel requested the court to allow him an adjournment or to withdraw because he had been assigned the case on Friday for a trial the following Monday and was not experienced in such cases); Chan v. Guyana, CCPR/C/85/D/913/2000, 31 October 2005 [6.3] (legal aid counsel was absent on the first day of the trial and requested an adjournment); Larrañaga v. Philippines, CCPR/C/

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Wherever there is a risk of a capital sentence adequate time is an imperative.194 In Little v. Jamaica the Article 14(3)(b) failure led also to a violation of Article 14(3)(e), since the author was unable to obtain the testimony of a witness on his behalf under the same conditions as testimony of witnesses against him.195 An aspect of adequate ‘time and facilities’ is the ability to consult with a lawyer in private196 and confidentially.197 The term ‘adequate facilities’ requires access to documents and other evidence, including materials that the prosecution plans to tender or that are exculpatory.198 It also includes the opportunity to make copies of the case file materials and sufficient time for review of documents.199 However, an accused who does not understand the language used in court does not have the right to be given translations of all relevant documents, provided they are made available to defence counsel.200 The requirement for interpretive facilities is specifically covered in Article 14(3)(f), but if denied may also violate Article14(3)(b).201 Adequate facilities may include consular facilities when needed.202

Communication with Counsel All detainees should have immediate access to a lawyer from the outset of detention. The right to communicate with counsel can be of acute

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87/D/1421/2005, 24 July 2006 [7.5] (counsel was appointed the day before a trial resumed, and was unprepared to defend his client). Little v. Jamaica, CCPR/C/43/D/283/1988, 1 November 1991 [8.4] (the accused on trial for a capital offence had only 10 minutes at the end of each trial day to consult with counsel and was unable to review the prosecution’s witness statements); Reid v. Jamaica, CCPR/C/51/D/355/ 1989, 8 July 1994 [14.2] (the accused only met legal aid attorney 10 minutes before the start of the trial); Teesdale v. Trinidad and Tobago, CCPR/C/74/D/677/1996, 1 April 2002 [9.5] (counsel was not assigned until the day of the trial). Little v. Jamaica, CCPR/C/43/D/283/1988, 1 November 1991 [8.4]. Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 20 July 2000 [8.5]; Il Khwildy v. Libya, CCPR/C/106/D/1804/2008, 1 November 2012 [3.5], [7.9]. Siragev v. Uzbekistan, CCPR/C/85/D/907/2000, 1 November 2005 [6.3]; Kovaleva et al. v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012 [11.5]; Suriname CCPR/C/SUR/CO/ 3 (2015) 33 (communication between defence lawyers and inmates); Poland CCPR/C/POL/CO/ 7 (2016) 33 (insufficient respect for the confidentiality of communication between counsel and clients). GC 32 [33]. See also El Abani v. Libya, CCPR/C/99/D/1640/2007, 26 July 2010 [7.8] (the accused was never given access to his criminal case file); Litvin v. Ukraine CCPR/C/102/D/ 1535/2006, 19 July 2011 [10.5] (court failed to take into account exculpatory facts and evidence). Zhirnov v. Russian Federation, CCPR/C/109/D/1795/2008, 28 October 2013 [10.2] [10.5]. No violation in the circumstances of Harward v. Norway, CCPR/C/51/D/451/1991, 15 July 1994 [9.5] (the author was represented by a Norwegian lawyer of his choice, who had access to the entire file, and the lawyer had the assistance of an interpreter). Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [7.2]. Pakistan CCPR/C/PAK/CO/1 (2017) 17 (insufficient consular and legal services made available to large number of migrant workers executed overseas). Note the obligation to inform detained foreign nationals of their right pursuant to the Vienna Convention on Consular Relations, 24 April 1963, Art. 36(1)(b), 500 UNTS 95.

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importance at early stages following a criminal charge, and on this basis gave rise to violation, for example, in Gridin v. Russian Federation (the author did not have a lawyer available to him for the first five days after he was arrested in spite of repeated requests, during which time he was interrogated);203 Krasnov v. Kyrgyzstan (the author was subjected to psychological pressure and crucial evidence was seized from him when he had no legal support);204 Chikunova v. Uzbekistan (a lawyer was only allowed to act two months after being appointed, once the preliminary investigation had ended);205 and Sannikov v. Belarus (confidential access to a lawyer was prevented during the investigative stages, and the lawyer first appointed was disbarred after he publicly raised concerns about the author’s ‘horrendous’ condition and the government’s mistreatment of him).206 In some cases lack of access to counsel among numerous other Article 14 irregularities forms part of a broader Article 14(1) finding without separate reference to Article 14(3)(b).207 The accused must have legal assistance at all stages of the proceedings, a point that is axiomatic in cases involving capital punishment,208 including pre-trial investigation,209 any preliminary hearing,210 during the trial and relevant appeals.

203 Gridin v. Russian Federation, CCPR/C/69/D/770/1997, 20 July 2000 [8.5]. See also Al Rabassi v. Libya, CCPR/C/111/D/1860/2009, 18 July 2014 [7.6] (not able to avail himself of the assistance of a lawyer). 204 Krasnov v. Kyrgyzstan, CCPR/C/101/D/1402/2005, 29 March 2011 [8.6]. See also Lyashkevich v. Uzbekistan, CCPR/C/98/D/1552/2007, 23 March 2010 [9.4] (lawyer the author had hired privately was prevented from defending her son on the day when important investigation acts were conducted); Saidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018 [9.5] (lawyers could not meet with the author confidentially for four months during the pre trial investigation). 205 Chikunova v. Uzbekistan, CCPR/C/89/D/1043/2002, 16 March 2007 [7.4]. 206 Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.7]. 207 Mechani v. Algeria, CCPR/C/107/D/1807/2008, 22 March 2013 [8.8] (sentenced after an unfair trial held in the absence of his family and without his lawyer being able to speak on his behalf, as his lawyer had never been able to see her client). 208 Robinson v. Jamaica, CCPR/C/35/D/223/1987, 30 March 1989 [10.3] (Art. 14(3)(d)); Aliev v. Ukraine, CCPR/C/78/D/781/1997, 7 August 2003 [7.3] (Art. 14(3)(d)); Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108 & 1121/2002, 27 March 2007 [7.5] (Art. 14(3)(b) and (d)). All stages is an element emphasised in the Basic Principles on the Role of Lawyers, 7 September 1990, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August 7 September 1990, referred to by the Committee, e.g,. at Libya CCPR/C/79/Add.101 (1998) 14 (with recommendation that measures be taken to ensure full compliance with those principles). 209 Aliboeva v. Tajikistan, CCPR/C/85/D/985/2001, Views 18 October 2005 [6.4] (author’s hus band was not represented until after his indictment, in a period when he was subjected to beatings and torture, during the preliminary investigation); Ruzmetov v. Uzbekistan, CCPR/C/ 86/D/915/2000, 30 March 2006 [7.4] (author’s son denied access to a lawyer of choosing during the pre trial investigation and the trial). 210 Levy v. Jamaica, CCPR/C/64/D/719/1996, 25 November 1998 [7.2] (violation of Art. 14(3)(d) because no legal assistance in a preliminary hearing held prior to the trial for a capital crime).

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Article 14(3)(b) violation occurs most conspicuously in circumstances of incommunicado detention,211 and prolonged pre-trial detention.212 In certain countries access to a lawyer is granted only if the period of police remand is protracted (and even then is limited);213 or only arises when an arrest is registered (rather than from the moment of arrest).214 As to the quality of counsel, the State cannot be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice.215 It is not for the Committee to question counsel’s professional judgement except in such circumstances.216 Article 14(3)(c): Trial without Delay The right of the accused to be tried without undue delay covers all stages of proceedings, including the time between formal charges being laid and commencement of trial at first instance, and the conduct of appeal proceedings against conviction or sentence.217 It also covers the time taken to deliver a final 211 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Incommunicado Detention’; and as a sample of Concluding Observation, Israel CCPR/ CO/78/ISR (2003) 13 (prolonged detention without any access to a lawyer or other persons in the outside world); Spain CCPR/C/ESP/CO/6 (2015) 17 (court authorised incommunicado detention). 212 E.g., Lebanon CCPR/C/LBN/CO/3 (2018) 31 (prolonged pre trial detention without access to counsel). 213 E.g., Morocco CCPR/C/MAR/CO/6 (2016) 25, 26 (unduly prolonged periods of police custody; access to a lawyer permitted only in cases in which the period of police custody is prolonged and for a maximum of 30 minutes). 214 Tajikistan CCPR/CO/84/TJK (2005) 11 (reports of detainees’ access to a lawyer being obstructed, particularly in the period immediately following arrest); Albania CCPR/C/ALB/ CO/2 (2013) 17 (access to a lawyer after arrest is often hindered); Poland CCPR/C/POL/CO/7 (2016) 33 (difficulties accessing legal assistance during arrest); Thailand CCPR/C/THA/CO/2 (2017) 25 (arbitrary detention (without charge) of hundreds for ‘attitude adjustments’ without access to a lawyer). 215 Hussain v. Mauritius, CCPR/C/77/D/980/2001, 18 March 2002 [6.3] (inadmissible when counsel with the opportunity to cross examine a witness and to ask for an adjournment did not do so); Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [5.6] (neither the author nor his new counsel requested an adjournment; if counsel felt that they were not properly prepared, it was incumbent on them to request adjournment). 216 Gallimore v. Jamaica, CCPR/C/66/D/680/1996, 16 September 1999 [6.2] (there was no reason to believe that counsel was not using other than his professional judgement in spite of the author’s claim that he met with his counsel only for a short time before the trial, that counsel failed to follow his instructions in visiting the scene of the crime and did not call a defence witness); J.O. v. France, CCPR/C/101/D/1620/2007/Rev.2, 23 March 2011 [9.4] (no violation when a factual error in the summons was amended four months before the substantive hearing; if the author was not given an appropriate defence, the responsibility rests with counsel, who did not use the time available to prepare). 217 Lubuto v. Zambia, CCPR/C/55/D/390/1990/Rev.1, 31 October 1995 [7.3] (eight years between the author’s arrest and the final decision dismissing his appeal); Rouse v. Philippines, CCPR/C/ 84/D/1089/2002, 25 July 2005 [7.4] (judgment delivered over forty one months after the appeal was lodged; delay of thirty two months between the last appeal brief and judgment; altogether

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decision.218 Exceptional reasons, or specific grounds, must be shown to justify delays.219 The reasonableness of any delay has to take into account the complexity of the case, the conduct of the accused and the manner in which the matter was dealt with by the administrative and judicial authorities.220 The fact that an accused decides to appeal a decision cannot be held against them.221 In the case of juveniles, failure to bring them speedily for adjudication may simultaneously violate Articles 10(2)(b) and 14(3)(c).222 Article 14(3)(c) is designed to avoid keeping anyone charged with a criminal offence too long in a state of uncertainty about their fate and, if they are held in detention, to ensure that any deprivation of liberty does not last longer than necessary in the circumstances of the specific case; it is also to serve the broader interests of justice because delay may seriously affect the fairness of the trial, particularly in ensuring the reliability of witness recollection, and preserving relevant evidence.223 Excessive periods of pre-trial detention may result in concurrent violation of Articles 14(3)(c) and 9(3), since Article 9(3) requires that those remanded in custody be tried as expeditiously ‘as possible’.224 However, matters must not be

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a delay of six and a half years between arrest and judgment); Taright et al. v. Algeria, CCPR/C/ 86/D/1085/2002, 15 March 2006 [8.5] (judgment seven years and three months after the charges were brought). Cf. Kelly v. Jamaica, CCPR/C/41/D/253/1987 at 60, 17 October 1989 [5.11] (no violation in eighteen months between arrest and the opening of the trial). Rogerson v. Australia, CCPR/C/74/D/802/1998, View of 3 April 2002 [9.3] (delay of almost two years to deliver the final decision). Muñoz v. Spain, CCPR/C/79/D/1006/2001, 30 October 2003 [7.1] (violation as the matter involved a flagrant offence, the evidence required little police investigation and the low level of complexity of the proceedings did not justify the delay). Note the Individual Opinion of Mr Nisuke Ando, Mr Maxwell Yalden, Ms Ruth Wedgwood and Mr Roman Wieruszewski, arguing that a speedy trial claim is not measured by the gap in time between the date of a criminal incident and its judgment at trial. The ability of a State to take some time to consider whether to bring charges will often benefit defendants. In a case that arises out of the posting of political graffiti, a State might reflect on whether or not to proffer charges. See also Andela v. Cameroon, CCPR/C/121/D/2764/2016, 8 November 2017 [7.4] [7.5] (specific grounds must justify any delay (long delay between the indictment and first hearing inadequately explained by informa tion about the complexity of the case)). Krasnov v. Kyrgyzstan, CCPR/C/101/D/1402/2005, 29 March 2011 [8.7]; Cedeño v. Venezuela, CCPR/C/106/D/1940/2010, 29 October 2012 [7.7]. Article 14(5). Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016 [9.4] (delay of more than one year between arrest and adjudication concurrent violation of Arts 10(2)(b) and 14(3)(c)). GC 32 [35]; Lumanog and Santos v. Philippines, CCPR/C/92/D/1466/2006, 20 March 2008 [8.4] (continuous detention; conviction pending for review for five years before being trans ferred to an appellate court, followed by three years without being heard). See also Cagas et al. v. Philippines, CCPR/C/73/D/788/1997, 23 October 2001 [7.4] (Arts 14(3)(c) and 9(3) violated when the author’s claim contesting detention not heard for more than four years, and by the time of the Committee’s decision in excess of nine years, which would seriously affect the fairness of the trial); Casafranca v. Peru, CCPR/C/78/D/981/2001, 22 July 2003 [7.3] (delay of twelve years after the original events and ten years after the first trial). See chapter on Article 9: Liberty and Security, sections ‘Article 9(3): Judicial Control of Detention’, ‘Trial within a Reasonable Time’. Note also Barroso v. Panama, CCPR/C/54/D/ 473/1991, 19 July 1995 [8.5] and Sextus v. Trinidad and Tobago, CCPR/C/72/D/818/1998,

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so expedited as to impinge on the accused’s right under Article 14(3)(b) to have adequate time and facilities to prepare for their defence. ‘Without undue delay’ refers not only to the length of proceedings, but also their number. In Sobhraj v. Nepal new hearings were scheduled, in addition to those which were previously either postponed or cancelled, at the last minute without reason.225 States are obliged to organise their system of administration of justice in such a manner as to ensure an effective and expeditious disposal of cases.226 A recurring country response to allegations under Article 14(3)(c), and a matter to be addressed by way of implementation, is lack of personnel (judges, judicial officers and lawyers) and financial resources to address a backlog of cases.227 Article 14(3)(d): Trial in the Accused’s Presence, Right to Defence, with Legal Assistance (Either of Choice or if Required) Without Cost if of Insufficient Means

Trial in the Accused’s Presence The right to be tried in one’s presence on a criminal charge, and to defend oneself through legal assistance of one’s choosing, are both explicit in Article 14(3)(d), but are also elements reflected more broadly within the right to a fair trial under Article 14(1). In Maleki v. Italy the State relied on a reservation under Article 14(3)(d) to preclude examination of a claim based on the author’s in absentia trial, but this did not prevent a finding under Article 14(1) in the failure to summon the author in a timely manner and inform him of the proceedings (it was assumed he had been informed by his counsel). In order for a State to comply with the requirements of a fair trial when trying a person in absentia it must show that it had taken at least those steps.228 Legal representation is no substitute for personal attendance by the accused. Article 14(3)(d) was violated in Tyan v. Kazakhstan, even though the author was represented by four lawyers at his appeal, because his request to be present in the

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16 July 2001 [7.2] (in cases involving serious charges, and where the accused is denied bail, they must be tried in as expeditious a manner as possible); Cagas et al. v. Philippines, CCPR/C/ 73/D/788/1997, 23 October 2001 [7.4] (the period of pre trial detention constituted an unrea sonable delay); Sahadeo v. Guyana, CCPR/C/73/D/728/1996, 1 November 2001 [9.2] (deten tion awaiting trial in violation of Arts 9(3) and 14(3)(c)); GC 32 [35]; General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/C/GC/35 [37]. Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [7.4] (the high number of postpone ments and cancellations of court hearings could not be justified). Lumanog and Santos v. Philippines, CCPR/C/92/D/1466/2006, 20 March 2008 [8.5] (failure to take into consideration the delay caused by a change in criminal procedure, where the review of a criminal conviction was pending for many years). Namibia CCPR/CO/81/NAM (2004) 17; Poland CCPR/C/POL/CO/6 (2010) 19; Philippines CCPR/C/PHL/CO/4 (2012) 20; Belize CCPR/C/BLZ/CO/1 (2013) 20; Malawi CCPR/C/MWI/ CO/1 (2014) 18; Suriname CCPR/C/SUR/CO/3 (2015) 39. Maleki v. Italy, CCPR/C/66/D/699/1996, 27 July 1999 [9.2] [9.5].

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court in person was denied. A crucial factor was that under the appeal proceedings in question the court examined the case as to the facts and the law and made a new assessment of the issue of guilt or innocence.229 It was sufficient for Article 14(3)(d) purposes in Dorofeev v. Russian Federation that the accused was allowed to participate in the hearing only through a video conference, while the court made a similar new assessment, in spite of his asking on three occasions that he attend in person.230 In absentia proceedings are permissible in some circumstances in the interests of the proper administration of justice, such as when the accused declines to exercise the right to be present after the necessary steps already touched on in Maleki have been taken to inform them about the proceedings, allowing sufficient advance notice. The consequence of insufficient notification is likely to be that the accused will not be given adequate time and facilities to prepare their defence (Article 14(3)(b)), they will not be able to defend themselves through legal assistance of their own choosing (Article 14(3)(d)), and will not have the opportunity to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf (Article 14(3)(e)). The Committee found a violation of Article 14(3)(a), (b), (d) and (e) in Mbenge v. Zaire since there was no indication of the steps actually taken to transmit relevant summonses to the author, whose address was in Belgium and known to the judicial authorities, and for one of his trials the summons was issued only three days before the beginning of the hearing.231 In order to guarantee the minimum rights in Article 14(3), especially those in Article 14(3)(d) and (e), in all criminal proceedings there is a right to an oral hearing. In Rodríguez Orejuela v. Colombia the right to a fair trial was violated when the proceedings against the author were conducted only in writing, excluding any hearing, either oral or public, and culminating in his conviction and sentencing.232 229 Tyan v. Kazakhstan, CCPR/C/119/D/2125/2011, 16 March 2017 [9.3]. See also Bailey v. Jamaica, CCPR/C/66/D/709/1996, 17 September 1999 [7.5] (violation of Art. 14(1) and (3)(d) as the accused was not given the opportunity to make any contribution to the procedure before the single judge for the reclassification of an offence as non capital which resulted in a non parole period of detention of fifteen years); Said v. Norway, CCPR/C/68/D/767/1997, 26 April 2000 [11.3] (no violation of Art. 14(1) when the author could not attend a hearing he had initiated about visiting rights to his child because he was not allowed to enter the country; he was represented by a lawyer and neither of them sought a postponement to allow him to be present); Aliev v. Ukraine, CCPR/C/78/D/781/1997, 7 August 2003 [7.2], [7.3] (findings made under Art. 14(1) and (3)(d) because the author had no legal representation in the early stages of investigations, and his case was heard in his and his counsel’s absence). 230 Dorofeev v. Russian Federation, CCPR/C/111/D/2041/2011, 11 July 2014 [10.6]. 231 Mbenge v. Zaire, CCPR/C/18/D/16/1977, 25 March 1983 [14.1], [14.2]. 232 Orejuela v. Colombia, CCPR/C/75/D/848/1999, 23 July 2002 [7.3]. For examples of failure to observe the requirement to be tried in one’s presence, see Finland CCPR/C/79/Add.91 (1998) 15 (concern that, after due notice, a person charged with certain offences may be tried in absentia, if their presence was not necessary; and may be sentenced with no possibility for

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Defence in Person or Through Legal Assistance of Choice, and Assigned Legal Assistance The right to access to legal assistance has already been introduced in the above discussion on Article 14(3)(b).233 In the reporting process the Committee has emphasised that the right to legal counsel should be accorded in a variety of legal proceedings,234 including those occurring pre-trial,235 involving state secrets,236 or terrorist offences.237 It has raised concerns about access to a public defender, when assigned at the final stages of criminal proceedings238 or not available at all.239 Impeded access to legal representation may also take the form of the prohibitive cost of legal fees,240 or the intimidation of lawyers in their professional activities, and subjecting them to travel bans.241 However, the most common Committee complaint at a generalised

233 234 235 236 237

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retrial after thirty days); Tajikistan CCPR/CO/84/TJK (2005) 19 (reports of several in absentia convictions); Croatia CCPR/C/HRV/CO/2 (2009) 11 (war crimes trials held in absentia); Mauritius CCPR/C/MUS/CO/5 (2017) 39 (children often tried in the absence of their legal representatives or guardians). See section ‘Communication with Counsel’, above. E.g., Moldova CCPR/C/MDA/CO/2 (2009) 22 (the right to legal counsel not accorded as a matter of course in legal proceedings). E.g., Netherlands CCPR/CO/72/NET (2001) 12; Romania CCPR/C/ROU/CO/5 (2017) 39 (reports of practical difficulties in obtaining effective legal assistance and representation during pretrial proceedings). E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 20 and Kazakhstan CCPR/C/KAZ/CO/2 (2016) 39 (in cases involving State secrets lawyers were required to seek State clearance before representing their clients). E.g., Spain A/51/40 (1996) 178 (those accused of acts of terrorism or suspected of collaborating with them may not choose their lawyer). The minimum fair trial rights which have to be provided to every accused are considered by Evelyne Schmid, ‘The Right to a Fair Trial in Times of Terrorism: a Method to Identity the Non Derogable Aspects of Article 14 of the International Covenant on Civil and Political Rights’, (2009) 1 Goettingen J. Int. L., p. 29. In a similar context, see also Ana Bostan, ‘The Right to a Fair Trial: Balancing Safety and Civil Liberties’, (2004) 12 Cardozo J. Int. & Comp. L., p. 1; Clémentine Olivier, ‘Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’, (2004) LJIL 17(2), p. 405; Kai Ambos and Annika Poschadel, ‘Terrorists and Fair Trial: the Right to a Fair Trial for Alleged Terrorists Detained in Guantanamo Bay’, (2013) 9 Utrecht L. Rev., p. 109. E.g., Benin CCPR/CO/82/BEN (2004) 20 (a lawyer was appointed only during the final questioning before the actual hearing); Togo CCPR/C/TGO/CO/4 (2011) 19 (public defender not assigned until the final stages of criminal proceedings). E.g., Argentina CCPR/C/ARG/CO/4 (2010) 20 (concern that the Office of the Public Defender does not have the necessary means to provide adequate legal assistance in every case); Ethiopia CCPR/C/ETH/CO/1 (2011) 20 (free legal aid was frequently provided by NGOs given the lack of capacity of the Public Defender Office, until restrictions were imposed on them); Honduras CCPR/C/HND/CO/2 (2017) 32 (regret that the number of public defenders in courts and police stations still insufficient). E.g., Angola CCPR/C/AGO/CO/1 (2013) 20 (those living in rural areas particularly disadvan taged in accessing justice). See also Tyvanchuk et al. v. Belarus, CCPR/C/122/D/2201/2012, 26 March 2018 [7.4] (excessive court fees denial of access to a court). E.g., Djibouti CCPR/C/DJI/CO/1 (2013) 17 (harassment of defence lawyers); Iraq CCPR/C/ IRQ/CO/5 (2015) 35 (judges, lawyers and court officials intimidated, threatened and subjected

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level concerns deficiencies in legal aid systems, including the insufficient availability and quality of legal aid services, and lack of public information about how to access legal aid.242 The requirements of fair trial and of representation require that the author be informed if counsel does not intend to put arguments to the Court, so that the author may have an opportunity to seek alternative representation. That way the issues raised may be ventilated on appeal.243 The accused must be informed of their Article 14(3)(d) right if they do not have legal assistance.244 They may choose legal representation; or, alternatively, may elect not to be represented, subject to the proviso that if required in the interests of justice in a particular trial legal assistance must be assigned to them, even against their wishes.

Assigned Free Legal Assistance where Required in the Interests of Justice As the Committee explained in Correia de Matos v. Portugal, there is the risk that if a lawyer is imposed against the wishes of the accused, and the accused has to accept an unwanted counsel whom they do not trust, they may no longer be able to defend themself effectively.245 In spite of the importance of the relationship of trust between accused and lawyer, the interests of justice may require a lawyer to

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to physical attacks); Azerbaijan CCPR/C/AZE/CO/4 (2016) 30 (human rights defenders and lawyers allegedly subjected to travel bans in retaliation for engaging in their professional activities); Morocco CCPR/C/MAR/CO/6 (2016) 33 (lawyers and judges the target of threats and intimidation); Kazakhstan CCPR/C/KAZ/CO/2 (2016) 37 (reports of lawyers subjected to threats, attacks and intimidation). See also Bolivia CCPR/C/BOL/CO/3 (2013) 22 (reports of widespread political interference and corruption in the judicial system; also that the criteria used for the appointment of judges excluded lawyers who defended anyone convicted of offences against national unity). E.g., Czech Republic CCPR/CO/72/CZE (2001) 21; Georgia CCPR/CO/74/GEO (2002) 11; Poland CCPR/CO/82/POL (2004) 14; Kenya CCPR/CO/83/KEN (2005) 21; Botswana CCPR/ C/BWA/CO/1 (2008) 20; San Marino CCPR/C/SMR/CO/2 (2008) 12; Grenada CCPR/C/GRD/ CO/1 (2009) 20; Jamaica CCPR/C/JAM/CO/3 (2011) 24; Albania CCPR/C/ALB/CO/2 (2013) 17; Haiti CCPR/C/HTI/CO/1 (2014) 16; Mauritania CCPR/C/MRT/CO/1 (2013) 20; Montenegro CCPR/C/MNE/CO/1 (2014) 16; Nepal CCPR/C/NPL/CO/2 (2014) 16; Croatia CCPR/C/HRV/CO/3 (2015) 18; Greece CCPR/C/GRC/CO/2 (2015) 23; UK CCPR/C/GBR/ CO/7 (2015) 22; Azerbaijan CCPR/C/AZE/CO/4 (2016) 24; Ghana CCPR/C/GHA/CO/1 (2016) 41; Jamaica CCPR/C/JAM/CO/4 (2016) 41; Slovenia CCPR/C/SVN/CO/3 (2016) 27; Italy CCPR/C/ITA/CO/6 (2017) 34; Swaziland CCPR/C/SWZ/CO/1 (2017) 40; Gambia CCPR/ C/GMB/CO/2 (2018) 37; Norway CCPR/C/NOR/CO/7 (2018) 28. Boodlal v. Trinidad and Tobago, CCPR/C/73/D/928/2000, 25 October 2001 [4.10]. Saidov v. Tajikistan, CCPR/C/81/D/964/2001, 8 July 2004 [6.8] (not informed of the right to be represented by a lawyer upon arrest). Correia de Matos v. Portugal, CCPR/C/86/D/1123/2002, 28 March 2006 [7.3]; of relevance in Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.6] (counsel was assigned to the author when his previous counsel was found guilty of contempt and jailed; the author did not wish court appointed counsel to represent him and requested an adjournment to hire a new counsel, but the court did not accede to this request). Note also Portugal CCPR/C/PRT/CO/4 (2012) 14 (concern at lack of the right to defend oneself in person in criminal proceedings, due to obligatory representation by a lawyer, in contravention of Art. 14(3)(d)).

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be assigned against the wishes of the accused, where justified by the complexity of a criminal matter;246 because a person substantially and persistently obstructs the proper conduct of trial; the individual faces a grave charge, but is unable to act in their own interests; or where necessary to protect vulnerable witnesses from further distress if the accused were to question them. Any restriction of the accused’s wish to defend themself must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice.247 The gravity of the offence is an important factor, so that on a trespassing charge where the penalty is a fine the interests of justice may not require the assignment of legal assistance,248 but obviously cases involving capital punishment would.249 While Article 14(3)(d) does not entitle an accused to choose counsel who is assigned free of charge,250 steps must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice.251 This includes consulting with, and informing, the accused if the lawyer intends to withdraw an appeal or to argue that the appeal has no merit.252 In some circumstances the accused may object to the court-appointed lawyer, particularly on a capital charge, since legal assistance must be provided in ways that adequately and effectively ensure justice.253 Failure in representation through privately retained lawyers has been found non-attributable to the State.254 However, disruption of the functions of chosen counsel was an Article 14(3)(d) violation when counsel was prevented from 246 Arias v. Spain, CCPR/C/102/D/1531/2006, 26 July 2011 [9.2] [9.3]. 247 Correia de Matos v. Portugal, CCPR/C/86/D/1123/2002, 28 March 2006 [7.4]. 248 Lindon v. Australia, CCPR/C/64/D/646/1995, 25 November 1998 [6.5]. See also Z.P. v. Canada, CCPR/C/41/D/341/1988, 11 April 1991 [5.4] (inadmissible claim based on a refusal of legal aid for an appeal after requested, since the interests of justice did not justify it). On the connection between legal aid, legal representation and the right to a fair trial in the Australian context, see Asher Flynn, Jacqueline Hodgson, Jude McCulloch and Bronwyn Naylor, ‘Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial’, (2016) 40(1) Melb. U.L. Rev., p. 207. 249 Aliev v. Ukraine, CCPR/C/78/D/781/1997, 7 August 2003 [7.3]; Saidov v. Tajikistan, CCPR/C/ 81/D/964/2001, 8 July 2004 [6.8]. 250 Little v. Jamaica, CCPR/C/43/D/283/1988, 1 November 1991 [8.4]; Teesdale v. Trinidad and Tobago, CCPR/C/74/D/677/1996, 1 April 2002 [9.6]; Larrañaga v. Philippines, CCPR/C/87/D/ 1421/2005, 24 July 2006 [7.2]. 251 Saidov v. Tajikistan, CCPR/C/81/D/964/2001, 8 July 2004 [6.8]. 252 Kelly v. Jamaica, CCPR/C/41/D/253/1987 at 60, 17 October 1989 [5.10]; Collins v. Jamaica, CCPR/C/47/D/356/1989, 25 March 1993 [8.2]. In both cases the question was whether counsel had a right to abandon the appeal without prior consultation with the author. Counsel opined that there was no merit in the appeal, leaving the author without legal representation. 253 Pinto v. Trinidad and Tobago, CCPR/C/39/D/232/1987, 20 July 1990 [12.5] (the author did not wish his court appointed attorney to represent him beyond the first instance proceedings because he felt he was inadequately represented by him before (the author never saw or approved the grounds of appeal, and he never had an opportunity to consult with his counsel on the preparation of the appeal). The court should have accepted the author’s arrangements for another attorney to represent him for purposes of the appeal, even if this would have entailed an adjournment). 254 H.C. v. Jamaica, CCPR/C/45/D/383/1989, 28 July 1992 [6.3].

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seeing the accused confidentially, and was permitted to examine official records only shortly before the relevant hearing.255 Article 14(3)(e): Examination of Prosecution Witnesses and Compulsion of Witnesses As an application of the principle of equality of arms, Article 14(3)(e) guarantees to the accused the same legal power to compel the attendance of witnesses relevant for the defence, and to examine or cross-examine any witnesses, as is available to the prosecution.256 Article 14(3)(e) does not provide an unlimited right to require the attendance of any witness requested by the accused or counsel, but only those relevant for the defence, combined with proper opportunity to question and challenge witnesses against them at some stage of the proceedings. Within such limits, and subject to the obligatory limitations on the use of evidence obtained in violation of Article 7, it is primarily for domestic law to determine the admissibility of evidence and how national courts assess such evidence.257 Claims concerning denial of the opportunity to examine or cross-examine particular witnesses by their nature often depend on an evaluation of facts and evidence in a particular case, which is the responsibility of the domestic appellate court rather than the Committee (unless it can be ascertained that this evaluation was clearly arbitrary or amounted to a denial of justice).258 On occasion it may be 255 Arutyunyan v. Uzbekistan, CCPR/C/80/D/917/2000, 29 March 2004 [6.3]. 256 Found to be violated, e.g., in Litvin v. Ukraine, CCPR/C/102/D/1535/2006, 19 July 2011 [10.4] (the court ignored the victim’s request to call and examine witnesses that had testified during the preliminary investigation and confirmed his alibi); Askarov v. Kyrgyzstan, CCPR/C/116/D/ 2231/2012, 31 March 2016 [8.6] (violation even though records of the court hearings contained no mention of counsel’s request to call any additional witnesses). Kweku Vanderpuye posits a normative analytical standard of admissibility with respect to the ‘right to examine’ under Art. 67(1)(e) of the Rome Statute (and surveys the equivalent right in the Covenant) in ‘Traditions in Conflict: the Internationalization of Confrontation’, (2010) 43 Cornell Int. L.J., p. 513. 257 Khuseynova and Butaeva v. Tajikistan, CCPR/C/94/D/1263 1264/2004, 20 October 2008 [8.3] (most of the witnesses and the forensic expert requested but denied could have provided information relevant to one of the alleged victim’s claim of being forced to confess under torture); Idiev v. Tajikistan, CCPR/C/95/D/1276/2004, 31 March 2009 [9.6] (violation because all the individuals sought and rejected by the court could have provided information relevant to the claim of being forced to confess under torture during the pre trial investigation); Osiyuk v. Belarus, CCPR/C/96/D/1311/2004, 30 July 2009 [8.3] (neither the author himself nor any witnesses on his behalf were ever heard at trial); Saidov v. Tajikistan, CCPR/C/122/D/2680/ 2015, 4 April 2018 [9.6] (the defence was unable to call more than eleven witnesses, and was not allowed to study the findings of the government forensic expert witness or challenge the expert’s findings); cf. Sedljar and Lavrov v. Estonia, CCPR/C/101/D/1532/2006, 29 March 2011 [7.3] (insufficient to support claims that the refusal to hear some experts and witnesses was arbitrary or resulted in denial of justice). 258 Khachatrian v. Armenia, CCPR/C/85/D/1056/2002, 28 October 2005 [6.5] (no violation when requests were resisted for the author’s daughter, and her partner, to be examined, because minors may only be examined if they are able to provide significant information in relation to the case, and evidence showed that neither were at the scene of the incident).

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clear that the opportunity to examine or cross-examine particular witnesses was immaterial. In Jessop v. New Zealand the author’s contention that there was a breach of Article 14(3)(e) because she was unable to interrogate the victim (who was 89 years old at the time of trial and could not attend) was met by the fact that the author was convicted on her own confession and without the victim’s statement having been read to the jury.259 Article 14(3)(e) may be used when the domestic court frustrates efforts to confirm innocence260 (including by proving that statements relied on by the prosecution were yielded under torture)261 or to refute prosecution evidence.262 It may be relied on even if prosecution witnesses do not respond to a subpoena, if considerable weight is given to their out of court statements.263 It was violated in Larrañaga v. Philippines on two separate grounds: first, the cross-examination of the main prosecution witness was repeatedly cut short and prematurely terminated; and, secondly, defence witnesses were not heard because of time constraints and because it was said that their evidence was irrelevant and immaterial, while at the same time the number of witnesses for the prosecution was not similarly restricted.264 A court should not hear evidence during a preliminary hearing without allowing the accused an opportunity to ensure the presence of their lawyer. In circumstances of such failure the Committee has found a violation of Article 14(3)(d),265 in others of Article 14(3)(d) and (e).266

259 Jessop v. New Zealand, CCPR/C/101/D/1758/2008, 29 March 2011 [8.6]. 260 Khoroshenko v. Russian Federation, CCPR/C/101/D/1304/2004, 29 March 2011 [9.9] (no violation when the court only accepted and evaluated evidence that supported the prosecution’s version of the events because neither the accused nor his attorney made requests to question witnesses either prior to or during the trial). 261 Khomidov v. Tajikistan, CCPR/C/81/D/1117/2002, 29 July 2004 [6.5] (the court denied the request to admit evidence that injuries were sustained as a result of the torture to make the victim confess guilt). 262 Koreba v. Belarus, CCPR/C/100/D/1390/2005, 25 October 2010 [7.5] (the accused was not given the opportunity to question one of the two main witnesses of the prosecution, an under cover agent, for no evident reason); Ruzmetov v. Uzbekistan, CCPR/C/86/D/915/2000, 30 March 2006 [2.5], [7.5] (the trial of the author’s sons was largely held in camera, and none of the witnesses, not even prosecution witnesses, were present in the court room despite numerous requests to this effect by all co defendants). 263 Dugin v. Russian Federation, CCPR/C/81/D/815/1998, 5 July 2004 [9.3]; Rouse v. Philippines, CCPR/C/84/D/1089/2002, 25 July 2005 [7.5]. 264 Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.7]. 265 Brown v. Jamaica, CCPR/C/65/D/775/1997, 11 May 1999 [6.6] (violation of Art. 14(3)(d) because the magistrate, aware of the absence of the author’s defence counsel, should not have proceeded with the deposition of the witnesses without allowing the author an opportunity to ensure the presence of his counsel). 266 Hendricks v. Guyana, CCPR/C/75/D/838/1998, 25 October 2002 [6.4] (violation of Art. 14(3)(d) and (e) when the author’s lawyer was absent on one day and as a consequence was denied the right to cross examine one witness).

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Article 14(3)(e) is of importance to resist the use of anonymous witnesses,267 the conduct of secret investigations,268 witness intimidation,269 the terms on which hearsay evidence may be admitted,270 and, more generally, the unjustified refusal to hear witnesses or to consider evidence.271 Article 14(3)(f): Interpretive Assistance The right to the free assistance of an interpreter for the accused who cannot understand or speak the language used in court applies to all stages of oral proceedings.272 In Guesdon v. France and Cadoret and Bihan v. France the Committee treated it as implicit in the right to a fair trial to allow the accused ‘to express himself in the language in which he normally expressed himself’. It too is an aspect of the principle of equality of arms in criminal proceedings. The Committee did not criticise, as such, the use of one official court language, nor did it consider it necessary to make the services of an interpreter available to someone whose mother tongue differed from the official court language, if the individuals concerned were capable of expressing themselves adequately in the official language. Only if the accused or defence witnesses have difficulties in understanding, or in expressing themselves in the court language (which was not the case in those particular cases) must the services of an interpreter be made available.273 By contrast, the author in Sobhraj v. Nepal could not read, understand or write Nepali, nor could he understand the issues raised during the hearings at first instance. 267 E.g., Netherlands CCPR/CO/72/NET 12 (2001) 12 (grave concern at the scope afforded to the use of anonymous witnesses in criminal procedure, in the preliminary examination, prior to the trial, without the accused, counsel or the prosecutor present; while not excluding the use of anonymous witnesses in appropriate instances, the Committee considered that this practice was too broad and raised difficulties under Art. 14); New Zealand CCPR/C/NZL/CO/5 (2010) 13 (courts may receive or hear classified security information against groups or individuals designated as terrorist entities in their absence). 268 E.g., El Salvador A/39/40 (1984) 78 (law provided a secret investigation procedure that was ‘absolutely contrary’ to the Covenant in that it denied the right of the accused to examine witnesses against them). 269 E.g., Guatemala CCPR/C/GTM/CO/3 (2012) 25 (intimidation, threats and attacks suffered by witnesses during proceedings related to past cases or to organised crime); Argentina CCPR/C/ ARG/CO/5 (2016) 25 (concern at weakening of the National Programme for the Protection of Witnesses and Defendants). 270 E.g., Portugal A/36/40 (1981) 305 (questioning whether hearsay evidence was admissible in criminal proceedings in as much as Art. 14(3)(e) required that an accused party be given the right to cross examine witnesses against them). 271 E.g., Morocco CCPR/C/MAR/CO/6 (2016) 33 (refusals to hear witnesses or to consider evidence). 272 GC 32 [40]. See, e.g., Bozbey v. Turkmenistan, CCPR/C/100/D/1530/2006, 27 October 2010 [7.2] (failure to provide the author with an interpreter when he could not understand and speak the language used in court). 273 Guesdon v. France, CCPR/C/39/D/219/1986, 25 July 1990 [10.2]; Cadoret and Bihan v. France, CCPR/C/41/D/323/1988, 11 April 1991 [5.6] [5.7].

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He was therefore unable to prepare his defence, call his witnesses or confront the prosecution witnesses, when not given the free assistance of an interpreter during the court’s proceedings (or when the judgment was handed down).274 Inadequate facilities for interpretation during court proceedings has been identified by the Committee as an issue for corrective implementation in a number of countries.275 Article 14(3)(g): Rights against Self-incrimination The Article14(3)(g) requirement that no one shall ‘be compelled to testify against himself or confess guilt’ must be understood in terms of the absence of any direct or indirect physical or psychological coercion by the investigating authorities on the accused with a view to obtaining a confession of guilt.276 It is implicit in this principle that the prosecution must prove that any confession was made without duress.277 A fortiori it is unacceptable to treat an accused person in a manner contrary to Article 7 in order to extract a confession. Exploitation of withdrawal symptoms for drug users to elicit forced confessions or coerce them into cooperating with the police, for example, raises issues under both Articles 7 and 14.278 The threshold of such coercion was self-evidently passed in numerous Article 14(3)(g) claims.279 They are frequently defended by the State (with little success) on grounds that allegations of torture were not raised sufficiently early. For example, 274 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [7.2] (violation of Art. 14(3)(e) and (f); also of Art. 14(3)(a), (b) and (d)). For an exploration of the scope of language rights as fundamental human rights, see Fernand de Varennes, Language, Minorities and Human Rights (Martinus Nijhoff, 1996). 275 E.g., Switzerland CCPR/C/79/Add.70 (1996) 16 (Art. 14(3)(f) was not reflected in criminal legislation of all the cantons); Macedonia CCPR/C/MKD/CO/2 (2008) 17 (lack of court translators and interpreters for Albanian, Romani, Turkish and other minority languages); Moldova CCPR/C/MDA/CO/2 (2009) 23 (shortage of interpreters); Guatemala CCPR/C/ GTM/CO/3 (2012) 26 (lack of interpreters to meet the needs of indigenous persons); China (Macao) CCPR/C/CHN MAC/CO/1 (2013) 14 (reported difficulties non Portuguese speakers may face due to inadequate interpretation during court proceedings). 276 Berry v. Jamaica, CCPR/C/50/D/330/1988, 4 July 1994 [11.7]; Singarasa v. Sri Lanka, CCPR/C/81/ D/1033/2001, 21 July 2004 [7.4]; Ismailov v. Uzbekistan, CCPR/C/101/D/1769/2008, 25 March 2011 [7.6]; Zhuk v. Belarus, CCPR/C/109/D/1910/2009, 30 October 2013 [8.2]; Maksimovich Polskikh v. Russian Federation, CCPR/C/116/D/2099/2011, 11 March 2016 [9.5]. 277 Singarasa v. Sri Lanka, CCPR/C/81/D/1033/2001, 21 July 2004 [7.4] (the author was forced to sign a confession and subsequently had to assume the burden of proof that it was extracted under duress and was not voluntary (proof even to a ‘low threshold’ was not acceptable to the Committee)); Deolall v. Guyana, CCPR/C/82/D/912/2000, 1 November 2004 [5.1] (the court should have instructed the jurors that they would need to be convinced that the prosecution had managed to prove that the confession was voluntary). 278 Russian Federation CCPR/C/RUS/CO/7) (2015) 16 (physical and mental pain and suffering associated with withdrawal symptoms may amount to torture or ill treatment). 279 Khalilova v. Tajikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.2] [7.3] (in order to put additional pressure on the accused in his presence his father was beaten and tortured, as a consequence of which his father died); Koreba v. Belarus, CCPR/C/100/D/1390/2005, 25 October 2010 [2.6], [7.3] (a confession written by a police officer was signed while the accused

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findings of violation were made in Abduali Kurbanov v. Tajikistan (even though the State maintained that torture allegations were not made during the investigation, nor in court) because the Committee accepted that marks of torture were brought to the attention of the authorities on several occasions;280 in Kurbanov and Kurbanov v. Tajikistan (even though the allegation was first raised at trial), because of the unreasoned rejection of evidence of torture by the court;281 and in Pustovalov v. Russian Federation because the author’s allegations of torture made in court were ignored.282 It is often sufficient for authors to present a detailed description of the mistreatment suffered (in Karimov and Nursatov v. Tajikistan the perpetrators were also identified).283 However, the claim that a confession of guilt in criminal proceedings was extracted under torture failed in Lyashkevich v. Uzbekistan because detailed information on the nature of the alleged torture was not provided, and there was no explanation why a complaint was not made about it before trial.284 Bare State assertions to the effect that there was no medical evidence of torture, that defendants or lawyers did not request a medical examination, or that investigations revealed no misconduct, carry little weight.285 Complaints alleging violation of any element of Article 7 must be investigated promptly, thoroughly and impartially by competent authorities. This derives from the obligation on States in Article 2(3) to ensure an effective remedy for violation.286 Under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment any statement made as a result of torture is not to be admitted as evidence, except against a person accused of torture as evidence that the statement was made.287 The rationale is that ‘it is important for the prevention of violations of article 7 that the law must exclude . . . admissibility’.288

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was under the influence of alcohol, in the absence of a lawyer); Zhuk v. Belarus, CCPR/C/109/D/ 1910/2009, 30 October 2013 [8.2] (physical and psychological pressure used to elicit a confession which served as a basis for conviction); Tyan v. Kazakhstan, CCPR/C/119/D/2125/2011, 16 March 2017 [9.4] (the trial court did not consider the way the four confessions were obtained, while under police control in detention, and that the author retracted the confessions once he talked to his lawyers). Kurbanov v. Tajikistan, CCPR/C/79/D/1096/2002, 6 November 2003 [5.3], [7.5]. Kurbanov and Kurbanov v. Tajikistan, CCPR/C/86/D/1208/2003, 16 March 2006 [6.3] (viola tion of Art. 7 (and Art. 14(1) when the court did not take into account that policemen were cautioned afterwards for their unlawful acts; the courts placed the burden of proof on the author, whereas the general principle is that the burden of proof that the confession was made without duress is on the prosecution). Pustovalov v. Russian Federation, CCPR/C/98/D/1232/2003, 23 March 2010 [8.2]. Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108 & 1121/2002, 27 March 2007 [7.2]. Lyashkevich v. Uzbekistan, CCPR/C/98/D/1552/2007, 23 March 2010 [9.2]. E.g., Bazarov v. Uzbekistan, CCPR/C/87/D/959/2000, 14 July 2006 [8.3]; Karimov and Nursatov v. Tajikistan, CCPR/C/89/D/1108 & 1121/2002, 27 March 2007 [7.2]. See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Duty to Investigate’. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS vol. 1465, p. 85, Art. 15. Sahadeo v. Guyana, CCPR/C/73/D/728/1996, 1 November 2001 [9.3]. For instances of Committee concern about such evidence being admitted into evidence, see, e.g., Uzbekistan

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A sentence of death rendered following an unfair trial, for example, by use of a confession extracted by torture, amounts also to a violation of Article 6.289

A RT I C L E 1 4 ( 4 ) : CR I M I N A L P R O C E D U R E I N T H E TR I A L O F J U V E N I L E S : TA K E A C C O U N T O F T H E I R A G E A N D P R O M OTE THE IR R E H A B IL ITAT I O N Article 14(4) is aimed at ensuring that criminal procedure in the case of juveniles takes account of their age and the promotion of their rehabilitation.290 It extends beyond the principle that juveniles enjoy at least the same guarantees and protection as those which benefit adults under Article 14, since juveniles need special protection.291 It supplements other provisions specifically related to the treatment of children, namely, Article 6(5) (preventing the death penalty for crimes committed by those under 18); Articles 10(2)(b) and 10(3) (pre-and post-trial segregation of juveniles and adults, speedy adjudication for juveniles, and penal treatment of juveniles appropriate to their age and legal status); Article 14(1) (judgments not to be made public when required in the interests of juveniles, or in guardianship proceedings);292 and Article 24, which importantly requires measures of protection to be taken as required for minors by virtue of their status. The Committee has challenged domestic provisions which permit children to be tried in ordinary criminal courts; and it has addressed such issues as the minimum age of criminal responsibility.293 Criminal responsibility at 10 years of age is too young, particularly where it may result in detention.294

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CCPR/CO/71/UZB (2001) 8 (judges refused to take into account any evidence with regard to the accused’s treatment by law enforcement officials); Yemen CCPR/C/YEM/CO/5 (2012) 19; Morocco CCPR/C/MAR/CO/6 (2016) 23; Algeria CCPR/C/DZA/CO/4 (2018) 31 (exclusion left to the discretion of the judges). See, e.g., Siragev v. Uzbekistan, CCPR/C/85/D/907/2000, 1 November 2005 [6.4] (beaten in detention and subjected to torture, by investigators, to confess guilt). For examples of the alleged denial of procedural rights of children, see Czech Republic CCPR/ C/CZE/CO/3 (2013) 20 (children under 15 were not criminally responsible, were subject to standard pre trial criminal proceedings when suspected of an unlawful act, without the required legal assistance or the possibility of accessing their file); Israel CCPR/C/ISR/CO/4 (2014) 19 (concern that Palestinian children were exposed to arbitrary arrest and detention and often did not enjoy full procedural rights); Pakistan CCPR/C/PAK/CO/1 (2017) 23 (allegations that courts convicted at least 274 civilians, including children, in secret proceedings and sentenced 161 civilians to death). GC 32 [42]. A synopsis of child specific fair trial guarantees is provided by Livio Zilli, ‘Children’s Right to a Fair Trial under International Law’, (2002) 5 TCLR, p. 224. See chapter on Article 24: Protection Required for children, sections ‘Article 24(1): Every Child Shall Have the Right to Such Measures of Protection as are Required by His Status as a Minor’, ‘Juvenile Justice (Article 14(4))’. E.g., Zambia CCPR/C/79/Add.62 (1996) 19 (8 years); Suriname CCPR/CO/80/SUR (2004) 17 (10 years); UK CCPR/C/GBR/CO/6 (2008) 20 (10 years (8 in Scotland) for anti social

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Appropriate measures for the treatment of young offenders in a manner commensurate with their age, as well as their specific needs and vulnerabilities, include: abbreviated time in pre-trial detention; educational and psychological support while in detention; limited use of solitary confinement; separation from adults in detention (as required by Article 10);295 and ensuring that they are not tried as adults,296 or with adults.297 The Committee has urged the establishment of specialised courts or other appropriate judicial framework,298 and training in relevant international standards to all professionals involved in the juvenile justice system.299 Relevant standards include the Economic and Social Council (ECOSOC), Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime.300 General Comment 32 is valuable in supplementing the General Comment on Article 24, which was relatively confined in its commentary on juvenile justice (published in 1989).301 The CRC has also made a significant contribution in this area: recommending that juveniles should not be kept in custody if at all possible;302 that strict legal provisions should ensure that the legality of pre-trial detention is reviewed regularly, preferably every two weeks; and urging States to introduce legal provisions to ensure that a final decision on charges is made within six months of being presented.303 In keeping with the rehabilitation and restorative objectives promoted by the CRC, and in the same spirit as Article 10(3), General Comment 32 recommends that, whenever appropriate, alternatives to criminal proceedings should be

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behaviour orders); Malawi CCPR/C/MWI/CO/1 (2014) 18 (10 years); Nepal CCPR/C/NPL/ CO/2 (2014) 17 (10 years); Australia CCPR/C/AUS/CO/6 (2017) 43 (10 years in some states). E.g., Moldova CCPR/C/MDA/CO/3 (2016) 39 (no time limit established for the pre trial detention of children; education and psychological support in detention remain inadequate; solitary confinement may be used for several days as a disciplinary measure; and children convicted of crimes were sometimes held in adult detention facilities); Poland CCPR/C/POL/ CO/7 (2016) 35 (temporary isolation rooms as a form of disciplinary sanction or for diagnostic purposes on arrival; and pre trial detention exceeded three months). E.g., Belgium CCPR/C/BEL/CO/5 (2010) 23 (minors between the ages of 16 and 18 may be tried as adults); USA CCPR/C/USA/CO/4 (2014) 23 (many states exclude 16 and 17 year olds from juvenile court jurisdictions so that they continue to be tried in adult courts and incarcerated in adult institutions). E.g., Zambia CCPR/C/79/Add.62 (1996) 19 (children charged jointly with adults and tried in the ordinary criminal courts appeared to be incompatible with Arts 14(4) and 24). E.g., Nepal CCPR/C/NPL/CO/2 (2014) 17; Cyprus CCPR/C/CYP/CO/4 (2015) 20; Mongolia CCPR/C/MNG/CO/6 (2017) 34; Swaziland CCPR/C/SWZ/CO/1 (2017) 46. E.g., Georgia CCPR/C/GEO/CO/4 (2014) 16. ECOSOC, Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, 22 July 2005, E/RES/2005/20, recommended, e.g., at Armenia CCPR/C/ARM/CO/2 (2012) 23 and Czech Republic CCPR/C/CZE/CO/3 (2013) 20. CCPR General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989 [4]. CRC, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10 (CRC GC 10) [80] (the duration of pre trial detention of juveniles should also be limited by law and be subject to regular review). CRC GC 10 [83].

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considered, such as mediation, counselling, community service or educational programmes.304 Unimpeded access by a juvenile’s parent, legal guardian or legal representative may play an important role in protecting a child’s rights throughout criminal proceedings. In Berezhnoy v. Russian Federation the failure to adopt any special measures to protect a minor was in violation of Article 14(4), read in conjunction with Article 24(1), as his mother was only appointed as his legal representative two months after his arrest.305 Adverse Article 14(4) findings are comparatively rare, though they did result in Sharifova, Safarov and Burkhonov v. Tajikistan, following the arrest of two juveniles who were not given access to a defence lawyer,306 and in Koreba v. Belarus after a 17-year-old was kept for eleven days in a temporary detention unit with adults, some of whom had committed serious crimes, and he was interrogated in the absence of his lawyer, legal representative or a social worker.307 Such circumstances illustrate the importance of what the Committee had already stressed in General Comment 32 that juveniles should ‘in particular, be informed directly of the charges against them and, if appropriate, through their parents or legal guardians, be provided with appropriate assistance in the preparation and presentation of their defence’. It also notes that in criminal proceedings juveniles should ‘be tried as soon as possible in a hearing in the presence of legal counsel, other appropriate assistance and their parents or legal guardians, unless it is considered not to be in the best interests of the child, in particular taking into account their age or situation’.308 The issue of delay must be assessed against the overall circumstances of the case, including the age of the accused.309

A RT I C L E 1 4 ( 5 ) : R E V I E W OF C O N V I C T I O N AN D S E N T E N C E B Y A H I G H E R TR I B U N A L Article 14(5) provides for the right of appeal for those convicted or sentenced for a crime310 through review by a higher tribunal. The imposition of an award of 304 GC 32 [44]. See also CRC GC 10 [10], [23]. 305 Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016 [9.7]. 306 Sharifova et al. v. Tajikistan, CCPR/C/92/D/1209 & 1231/2003 & 1241/2004, 1 April 2008 [6.6]. 307 Koreba v. Belarus, CCPR/C/100/D/1390/2005, 25 October 2010 [7.4]. 308 GC 32 [42]. 309 E.g., Jessop v. New Zealand, CCPR/C/101/D/1758/2008, 29 March 2011 [8.2], [8.5] (delay in determining the author’s appeal was partly attributable to the author’s counsel and did not violate Art. 14(3)(c), (4) or (5)). 310 Andela v. Cameroon, CCPR/C/121/D/2764/2016, 8 November 2017 [6.14] (the relevant tribu nal did not recognise the principle of a second hearing, but the claim was inadmissible because the alleged victim had not yet been tried); cf. the Committee’s interpretation of Art. 14(5) to cover pre trial detention in Kulov v. Kyrgyzstan, CCPR/C/99/D/1369/2005, 26 July 2010 [8.8].

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compensatory damages does not qualify as it is civil in nature.311 The different language versions of the text indicate that Article 14(5) is not confined to the most serious offences.312 ‘According to law’ does not mean that the very existence of a right to review is left to the discretion of the States Parties.313 Such a review must be guaranteed, even if Article 14(5) does not require States to provide domestically for several instances of appeal. The words ‘according to law’ mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them.314 In Raphael Henry v. Jamaica the author exercised a right to appeal to ‘a higher tribunal’ by review by the Jamaican Court of Appeal, but Article 14(5) also included his right to appeal to the Privy Council.315 While the modalities of an appeal may differ across States, Article 14(5) imposes an obligation to ‘substantially review’ the conviction and sentence,316 both on the basis of sufficiency of the evidence and of the law.317 A procedure that allows review only as a matter of discretion does not suffice.318 Where national law is not in conformity with Article 14(5), appropriate amendments should be adopted, by virtue of the obligations of implementation in Article 2(2).319 Among the most common grounds of violation is the failure to provide a written judgment on which to base an appeal.320 A convicted person is entitled to have, 311 Aráez et al. v. Spain, CCPR/C/85/D/1323/2004, 28 October 2005 [4.3]. 312 GC 32 [45]. 313 Terrón v. Spain, CCPR/C/82/D/1073/2002, 5 November 2004 [7.4] (although legislation provided in certain circumstances for the trial of an individual, because of his position, by a higher court than would normally be the case, this alone cannot impair the defendant’s right to review of his conviction and sentence by a court); similarly, Capellades v. Spain, CCPR/C/87/ D/1211/2003, 11 July 2006 [7]; Serena and Rodríguez v. Spain, CCPR/C/92/D/1351 & 1352/ 2005, 25 March 2008 [9.3]. See also Bandajevsky v. Belarus, CCPR/C/86/D/1100/2002, 28 March 2006 [10.13] (supervisory review was an extraordinary means of appeal, dependent on the discretionary power of judge or prosecutor). 314 Reid v. Jamaica, CCPR/C/51/D/355/1989, 8 July 1994 [14.4]. 315 Henry v. Jamaica, CCPR/C/43/D/230/l987 1 November 1991) [8.4] (the author’s right under Art. 14(5) was violated by the failure of the Court of Appeal to issue a written judgment). 316 Reid v. Jamaica, CCPR/C/51/D/355/1989, 8 July 1994 [14.3]. 317 Domukovsky et al. v. Georgia, CCPR/C/62/D/623, 624, 626 & 627/1995, 6 April 1998 [18.11] (review procedure fell short of requirements of Art. 14(5) when the law provided only for judicial review without a hearing and on matters of law only); Saidov v. Tajikistan, CCPR/C/81/ D/964/2001, 8 July 2004 [6.5] (review of judgments of the Military Chamber took place only on questions of law); Kovaleva et al. v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012 [11.6] (review only applied to already executory decisions, as an extraordinary means of appeal, dependent on the discretionary power of judge or prosecutor, limited to issues of law only); Wade v. Sénégal, CCPR/C/124/D/2783/2016, 22 October 2018 [12.4] (review on points of law alone, not evidence and facts). 318 Gelazauskas v. Lithuania, CCPR/C/77/D/836/1998, 17 March 2003 [7.1] [7.3] (a ‘supervisory protest’ was an extraordinary right at the discretion of the authority); Saidov v. Tajikistan, CCPR/C/81/D/964/2001, 8 July 2004 [6.5] (review of judgments of the Military Chamber was at the discretion of a limited number of high level judicial officers). 319 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [7.5]. 320 Henry v. Jamaica, CCPR/C/43/D/230/l987 1 November 1991) [8.4] (the non availability of the written judgment denied the author the possibility of effectively appealing to the Privy Council

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within reasonable time, access to a written judgment, duly reasoned, for all instances of appeal.321 Article 14(5) has been violated by the absence of any possibility to appeal,322 including where a decision was ‘final’323 or where prosecution at first instance was by the country’s highest judicial body;324 implemenation of a death penalty several days after sentence;325 oral dismissal of an application for leave to appeal, without reasons, rendering the court functus officio;326 the fresh imposition of a sentence on appeal without further review;327 review limited to the formal or legal aspects of a conviction, without any consideration whatsoever of the facts,328 or an examination only of whether the findings of the trial court amounted to arbitrariness or denial of justice;329

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because it routinely dismissed petitions which were not accompanied by the written judgment); Reid v. Jamaica, CCPR/C/51/D/355/1989, 8 July 1994 [14.3] (because the Court of Appeal did not produce a written judgment the author was prevented from effectively petitioning for special leave to appeal); Aboushanif v. Norway, CCPR/C/93/D/1542/2007, 17 July 2008 [7.2] (lack of a duly reasoned judgment, even if in brief form); Khadzhiyev and Muradova v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018 [7.11] (the lawyer, and family members, never received the written judgment of the court, which made further appeals all but impossible). There was a violation of Art. 14(5) for failure by the Court of Appeal to provide a written judgment five and nine years, respectively, after dismissing the appeals in Little v. Jamaica, CCPR/C/43/D/283/1988, 1 November 1991 [8.5] and Francis v. Jamaica, CCPR/C/47/D/320/ 1988, 24 March 1993 [12.2]. Henry v. Jamaica, CCPR/C/43/D/230/l987, 1 November 1991) [8.4]. For examples of adequate review of the conviction and sentence, see Bryhn v. Norway, CCPR/C/67/D/789/1997, 2 November 1999 [7.2]; Cuartero v. Spain, CCPR/C/84/D/1399/2005, 25 July 2005 [4.4]; Amador and Amador v. Spain, CCPR/C/88/D/1181/2003, 31 October 2006 [9.2]; T.L.N. v. Norway, CCPR/C/111/D/1942/2010, 16 July 2014 [9.3]. Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.8] (the Supreme Court found the author guilty of rape and homicide after he had been acquitted of the same crime at first instance; as a result, he had no possibility of having the death sentence reviewed by a higher tribunal according to law); I.D.M. v. Colombia, CCPR/C/123/D/2414/2014, 25 July 2018 [10.4] (no remedy available to seek a review of conviction and sentence until Colombia amended the Constitution to guarantee the right to a second hearing for those with parliamentary immunity). Khalilova v. Tajikistan, CCPR/C/83/D/973/2001, 30 March 2005 [7.5] (sentence of death declared to be final and not subject to any further appeal). See also Bruges v. Colombia, CCPR/C/104/D/1641/2007, 23 March 2012 [7.3]. Spisso v. Venezuela, CCPR/C/119/D/2481/2014, 17 March 2017 [7.11] (criminal prosecution by the country’s highest judicial body). Mansaraj et al. v. Sierra Leone, CCPR/C/72/D/841/1998 (2001), 16 July 2001 [5.6]. Reid v. Jamaica, CCPR/C/51/D/355/1989, 8 July 1994 [14.3]. Conde v. Spain, CCPR/C/88/D/1325/2004, 31 October 2006 [7.2] (the conviction of the accused by an appeal court on counts of which he had been cleared by the trial court, and the subsequent imposition of a heavier penalty, could not be reviewed by a higher court); Valera v. Spain, CCPR/C/84/D/1095/2002, 22 July 2005 [7]; Sánchez and Clares v. Spain, CCPR/C/ 88/D/1332/2004, 31 October 2006 [7.2] (although a person acquitted at first instance may be convicted on appeal, this alone cannot impair the right to review of the conviction and sentence by a higher court). Sevostyanov v. Russian Federation, CCPR/C/109/D/1856/2008, 1 November 2013 [7.3] (did not take into account a written statement of someone admitting he laid the blame for the victim’s death on the author, because he had been pressured by the investigator, and he identified the actual killer). Fernández v. Spain, CCPR/C/83/D/1104/2002, 29 March 2005 [7].

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failure to notify the author of the ruling at first instance;330 denial of access to the remedies that would allow an appeal;331 and excessive delay,332 of particular importance in death penalty cases.333 Review of a conviction on the basis of new evidence is by definition something other than a review of an existing conviction, as an existing conviction is based on evidence that existed at the time it was handed down.334 In appellate proceedings guarantees of a fair trial are to be observed fully, including the availability of adequate facilities for the preparation of the defence,335 refraining from proceeding in the absence of the accused or their lawyer,336 and guaranteeing impartiality and the presumption of innocence.337 A ‘factual retrial’ or ‘hearing de novo’ are not necessary for the purposes of Article 14(5). The appellate court need not re-hear the testimony of witnesses, but may rely on the first instance interpretation of the evidence provided.338 However, in some instances the defendant is entitled to oral proceedings before the appellant court, for example, in Karttunen v. Finland when irregularities in the lower court (by the presence of a particular judge) meant that an oral hearing would enable the court on appeal to proceed with a re-evaluation of all the evidence submitted by

330 J.O. v. France, CCPR/C/101/D/1620/2007/Rev.2, 23 March 2011 [9.7]. 331 S.Y. v. Netherlands, CCPR/C/123/D/2392/2014, 17 July 2018 [9.5] (the author did not have access to the remedies that would have allowed her to appeal against the Court of Appeal decision not to grant leave to appeal). 332 Pratt and Morgan v. Jamaica, Communications Nos 210/1986 and 225/1987, Supp. No. 40 (A/ 44/40) at 222, 6 April 1989 [13.3] [13.5] (violation of both provisions when a delay of forty five months between the dismissal of the appeal and the written judgment was attributable to a State oversight); Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.5] (more than ten years between trial and the date of the dismissal of the petition for special leave to appeal). Cf. Martin v. Jamaica, CCPR/C/47/D/317/1988, 24 March 1993 [12.4] (delay was primarily attributable to the author, who did not file his petition to the Privy Council until after a warrant for his execution had been issued, six and a half years after the Court of Appeal’s judgment). 333 Siewpersaud et al. v. Trinidad and Tobago, CCPR/C/81/D/938/2000, 29 July 2004 [3.2], [6.2] (delay of four years and ten months between conviction and dismissal of the appeal); Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.6] (violation of Art. 14(3)(c) and (5) because six years after conviction the only reply was that the failure to hear the author’s appeal was due to failure to have the record of proceedings typed; it was still not heard eight years after); Kamoyo v. Zambia, CCPR/C/104/D/1859/2009, 23 March 2012 [6.3] (thirteen years after conviction, the author was still waiting for his appeal to be considered). 334 Ratiani v. Georgia, CCPR/C/84/D/975/2001, 21 July 2005 [11.3]. 335 Mennen v. Netherlands, CCPR/C/99/D/1797/2008, 27 July 2010 [8.2] [8.4] and Timmer v. Netherlands, CCPR/C/111/D/2097/2011, 24 July 2014 [7.3] (the absence, among the materi als available, of a reasoned judgment, trial transcript or even a list of the evidence used, did not constitute adequate facilities for the preparation of the author’s defence). 336 Kulov v. Kyrgyzstan, CCPR/C/99/D/1369/2005, 26 July 2010 [8.8] (appeal against pre trial detention). 337 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 27 July 2010 [7.5]. 338 Rolando v. Philippines, CCPR/C/82/D/1110/2002, 3 November 2004 [4.5]; Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.8].

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the parties, to determine whether a procedural flaw at first instance had affected the verdict.339 Failure to preserve evidential material until the completion of the appeal procedure only constitutes a violation of Article 14(5) in situations where the evidence in question is indispensable to perform such a review.340 Article 14(5) is not violated where the domestic legal system provides an avenue for appeal to specified courts and the author insists on being heard in another court.341 The review process was called into question in Chisanga v. Zambia. The author was handed two verdicts on appeal, one commuting his death sentence and a subsequent one upholding his death penalty. This violated his right to an effective remedy in relation to his right to appeal, under Article 14(5) taken together with Article 2.342 In reviewing State reports the Committee has identified numerous instances where the right of review of court decisions was absent or compromised, including as the result of delay, and as a lack of suitable provision in domestic law.343

A RT I C L E 1 4 ( 6) : C R I M I N A L C O N V I C T I O N : R I G H T TO C O M P E N S AT I O N F O R M I S C A R R I A G E O F J U S T I C E Article 14(6) provides that compensation shall be paid, according to law, to those who have been convicted of a criminal offence by a final decision and 339 Karttunen v. Finland, CCPR/C/46/D/387/1989, 23 October 1992 [7.3]. See also Larrañaga v. Philippines, CCPR/C/87/D/1421/2005, 24 July 2006 [7.8] (the appeal court found the author guilty of offences for which he had been acquitted at first instance; according to national law, the court should have used its power to conduct hearings to examine the facts and the law, and make a full assessment of the author’s guilt or innocence, to ensure a fair trial). 340 Robinson v. Jamaica, CCPR/C/68/D/731/1996, 13 April 2000 [10.7] [10.8] (failure to preserve the original confession statement not a violation). 341 Estevill v. Spain, CCPR/C/77/D/1004/2001, 25 March 2003 [6.2] (the author, a former judge with a great deal of experience, repeatedly insisted that he be tried directly by the Supreme Court). 342 Chisanga v. Zambia, CCPR/C/85/D/1132/2002, 18 October 2005 [7.2]. 343 E.g., Spain A/51/40 (1996) 185 (no right of appeal against certain decisions); Lebanon CCPR/ C/79/Add.78 (1997) 9 (Justice Council decisions not subject to appeal); Iraq CCPR/C/79/ Add.84 (1997) 15 (concern that special courts, which may impose the death penalty, did not provide for the right of appeal); Syria CCPR/CO/71/SYR (2001) 16 and Syria CCPR/CO/84/ SYR (2005) 10 (decisions of the State Security Court not subject to appeal); Iceland CCPR/CO/ 83/ISL (2005) 14 (only exceptional appeal possible against conviction or sentence for minor offences); Libya CCPR/C/LBY/CO/4 (2007) 22 (reluctance to review decisions of the People’s Court decisions following its abolition); Spain CCPR/C/ESP/CO/5 (2009) 17 (reforms failed to ensure conformity with Art. 14(5)); Ethiopia CCPR/C/ETH/CO/1 (2011) 21, 22 (statute totally precluded the possibility of appealing a conviction based on a guilty plea; Sharia courts could take binding decisions which could be appealed in matters such as marriage, divorce, guardian ship of minors and inheritance); Albania CCPR/C/ALB/CO/2 (2013) 17 (undue delay in delivering court decisions); Argentina CCPR/C/ARG/CO/5 (2016) 31 (right of review not uniformly applied); Pakistan CCPR/C/PAK/CO/1 (2017) 23 (written judgments explaining the reasons for conviction not made public).

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have suffered punishment as a consequence of that conviction, if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. Article 14(6) does not apply where non-disclosure of the newly discovered fact is wholly or partly attributable to the accused. The burden of proof of this is on the State.344 The issue in Muhonen v. Finland was whether the author, who received an ethical conviction for being a conscientious objector to military service and began serving his eleven-month prison sentence, had been ‘pardoned’ within Article 14(6), when he requested and received a presidential pardon. The Committee found he had not, since he was not pardoned because it was established that his conviction rested on a miscarriage of justice; instead, it was motivated by considerations of equity.345 A conviction by one court, which is overturned on appeal, is not a ‘final decision’ for the purposes of Article 14(6). For example, in Uebergang v. Australia a conviction in the Brisbane District Court was not a final decision, when it was overturned by the Queensland Court of Appeal.346 Nor is a conviction a final decision if it is subject to appeal. The claim in Irving v. Australia was inadmissible because the author’s conviction by a Queensland court was not a ‘final decision’ while it was subject to appeal (even though leave to appeal was required). The High Court of Australia quashed the author’s conviction on the ground that his trial had been unfair, but this too fell outside Article 14(6) as it was not on the ground of ‘a new, or newly discovered fact [which] show[ed] conclusively that there had been a miscarriage of justice’.347 The failure to implement Article 14(6) may strengthen claims of violation of Article 2(3). In Dumont v. Canada the author was sentenced to a term of fifty-two months’ imprisonment. After thirty-four months he was acquitted in view of new evidence, because his conviction was primarily based on the victim’s statements and she later expressed uncertainty as to the identity of her assailant. There was a violation of Article 2(3), read in conjunction with Article 14(6), because there was no procedure for launching a new investigation to review the case and identify the real perpetrator, and civil proceedings had been pending for nine years, depriving the author of an effective remedy to enable him to establish his innocence.348

344 GC 32 [53]. 345 Muhonen v. Finland, Communication No. 89/1981, CCPR/C/OP/2 8 April 1985 [11.2]. 346 Uebergang v. Australia, CCPR/C/71/D/963/2001, 22 March 2001 [4.3]. 347 Irving v. Australia, CCPR/C/74/D/880/1999, 1 April 2002 [8.4]. 348 Dumont v. Canada, CCPR/C/98/D/1467/2006, 16 March 2010 [23.5] [23.6].

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The Committee has raised Article 14(6) with States when testing the necessity for a reservation,349 when identifying a failure in implementation,350 and as part of a package of measures to respond to the mistreatment of journalists, human rights activists and those detained under prison sentences imposed by martial law courts after unfair trials.351 It also expressed doubt that ex gratia payments would be sufficient if not enforceable.352

A RT I C L E 1 4 ( 7 ) : C R I M I N A L P R O S E C U T I O N : N E B I S I N ID E M ( D O U B L E J E O PAR D Y ) Article 14(7) has been of particular value to conscientious objectors to military service in preventing multiple sanctions for not obeying renewed orders to serve in the military. Abdullayev v. Turkmenistan concerned a Jehovah’s Witness who was convicted and punished twice, the second sentence attracting greater severity than the first. Domestic law allowed repeated call-up for military service and only provided exemption after two criminal sentences had been served. In finding that this violated Article 14(7), the Committee recalled from General Comment 32 that repeated punishment of conscientious objectors for not obeying a renewed order to serve in the military may amount to punishment for the same crime, if ‘based on the same constant resolve grounded in reasons of conscience’.353 It made a similar finding in Nurjanov v. Turkmenistan, in spite of the State’s assertion that the two criminal offences were committed at different points in time and comprised separate corpus delicti.354 Article 14(7) was not found to be violated in Jijón v. Ecuador. The author’s son was charged with participating in a bank robbery which ended in a shoot-out. He was convicted, and after serving his prison sentence instead of being released he was reindicted, on a charge of illegal possession of firearms, for what the author 349 E.g., Australia A/43/40 (1988) 442 and Australia CCPR/C/AUS/CO/5 (2009) 9 (Australia understood Art. 14(6) to require statutory compensation in cases of miscarriage of justice, when compensation was often awarded on a non statutory basis); Malta CCPR/C/79/Add.29 (1993) 10 (no convincing reasons offered for the reservation to Art. 14(6)); Belize CCPR/C/ BLZ/CO/1 (2013) 8 (reservation maintained arguing ‘problems with implementation’ while accepting the principle of compensation for wrongful imprisonment). 350 E.g., Mauritius A/33/40 (1978) 484 (noting the absence of legal provision for compensation of persons unjustly sentenced); Canada A/40/40 (1985) 206 (by not providing compensation in cases of miscarriage of justice, Canada was failing to comply with Art. 14(6)); Zaire CCPR A/ 42/40 (1987) 268 (no provision had been made for compensating the victims of wrongful imprisonment). 351 E.g., Kyrgyzstan CCPR/CO/69/KGZ (2000) 20; Kuwait CCPR/CO/69/KWT (2000) 10. 352 UK A/33/40 (1978) 201. 353 Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015 [7.5]; GC 32 [55]. 354 Nurjanov v. Turkmenistan, CCPR/C/117/D/2225/2012, 15 July 2016 [9.6] [9.7]. See also Matyakubov v. Turkmenistan, CCPR/C/117/D/2224/2012, 14 July 2016 [7.4] [7.5]; Aminov v. Turkmenistan, CCPR/C/117/D/2220/2012, 14 July 2016 [9.4] [9.5]; Nasyrlayev v. Turkmenistan, CCPR/C/117/D/2219/2012, 15 July 2016 [8.4] [8.5] for similar findings.

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alleged to be on the same facts and for the same offence. The Committee disagreed, pointing out that while the second indictment concerned a specific element of the same matter examined in the initial trial, he was not tried or convicted a second time, since the court on appeal in the event quashed the indictment.355 Two separate Article 14(7) claims were made in Babkin v. Russian Federation in proceedings on murder, firearms and forgery charges brought as a result of events surrounding the discovery that in the course of a vodka-selling racket water had been substituted for vodka. The author was acquitted on all except the forgery charge. The first claim (of violation of Article 14(1), read together with Article 14(7)) relied on the unfairness of allowing relatives of the murder victims to appeal against the author’s acquittal on the murder and firearms charges because they had not attended one day of the trial. It failed because his acquittal was overturned before it became ‘final’, so did not satisfy the requirement of trial or punishment for an offence for which a person had already been ‘finally convicted or acquitted’. The second claim succeeded (Article 14(7) alone) because during the retrial on the murder and firearms charges, he was again tried for forgery on the same basis as his conviction a year earlier. It was compounded by the adverse impact on the prospects of a fair trial: by having the firearms charge brought against him again, in combination with other more serious charges, the jury was exposed to potentially prejudicial material having no relevance.356 Article 14(7) does not prevent the review of a conviction on the basis of new evidence (which – as already observed – does not involve a review of an existing conviction under Article 14(5)),357 nor does it prevent the retrial of a person convicted in absentia who requests it.358 It only applies to criminal offences not, for example, employment disciplinary measures.359 Article 14(7) does not guarantee non bis in idem with regard to the national jurisdictions of two or more States. It prohibits double jeopardy only with regard to an offence adjudicated in a given State.360 The author in A.R.J. v. Australia could therefore not rely on Article 14(7), as someone who had been convicted and sentenced in Australia for illegal importation and possession of cannabis resin while a crew member of an Iranian vessel, to resist deportation to Iran, simply because it also represented a crime against the laws of Islam over which Islamic Revolutionary Tribunals had jurisdiction.361 Article 14(7) is supported by international conventions which prohibit double jeopardy.362 355 356 357 359

Jijón v. Ecuador, CCPR/C/44/D/277/1988 at 76, 26 March 1992 [5.4]. Babkin v. Russian Federation, CCPR/C/92/D/1310/2004, 3 April 2008 [2.5], [13.5] [13.6]. Ratiani v. Georgia, CCPR/C/84/D/975/2001, 21 July 2005 [11.3]. 358 GC 32 [54]. Strik v. Netherlands, CCPR/C/76/D/1001/2001, 1 November 2002 [7.3] (Art. 14(7) relates to criminal offences, not disciplinary measures). 360 A.P. v. Italy, CCPR/C/31/D/204/1986, 2 November 1987 [7.3]. 361 A.R.J. v. Australia, CCPR/C/60/D/692/1996, 28 July 1997 [6.4]. 362 See, e.g., Rome Statute of the International Criminal Court, Art. 20(3).

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Article 14(7) has arisen in the reporting process where domestic legislation has failed to give full effect to its prohibition,363 or there has been repeated punishment of conscientious objectors. In such cases the Committee has recommended proper independence on the part of those determining applications for military service exemptions (expressing concern, for example, where membership comprised only one civilian among serving officials of the armed forces),364 coupled with the right to appeal the decision. It has recommended placing the assessment of applications for conscientious objector status under the full control of civilian authorities.365

I M P L E M E N TAT I O N The Committee’s recommendations for implementation of Article 14 in Concluding Observations are consistent with its jurisprudence already discussed though contribute more directive detail. It strongly favours express provision in law for the individual provisions of Article 14, even in the absence of any obligation that the relevant guarantees be ‘provided by law’ or similarly secured. For example, it has recommended express provision to ensure confessions in violation of Article 7 are not admissible in evidence;366 effective protection and security for members of the judiciary and provision in law to guarantee the total independence of the judiciary;367 legislative review of law and practices relating to juvenile justice to bring them into conformity with Articles 9, 10, 14 and 24;368 legislative reform to set the length of police custody at 48 hours and to guarantee detainees immediate access to a lawyer from the outset of detention in police custody;369 effective measures (including legislation) to correct the absence of procedural law and practice to guarantee the right of review under Article 14(5);370 explicit legislative provision enabling access to counsel before and during interrogation;371 provision to reflect the obligation in Article 14(3)(f) to provide an interpreter when the accused cannot understand or speak the language used in court,372 as well as the presumption of innocence,373 the 363 E.g., Egypt A/39/40 (1984) 295 (regret that the power of the prime minister was not abolished to order that a person who had already been convicted or acquitted by a definitive judgment should be judged again on the same offence); Portugal (Macau) CCPR/C/79/Add.115 (1999) 12. 364 E.g., Israel CCPR/C/ISR/CO/3 (2010) 19; Israel CCPR/C/ISR/CO/4 (2014) 23. 365 E.g., Greece CCPR/C/GRC/CO/2 (2015) 38. 366 E.g., Tajikistan CCPR/CO/84/TJK (2005) 15; Algeria CCPR/C/DZA/CO/4 (2018) 32. See also Ghana CCPR/C/GHA/CO/1 (2016) 26. 367 E.g., Morocco CCPR/C/79/Add.113 (1999) 21; Rwanda CCPR/C/RWA/CO/4 (2016) 34; Honduras CCPR/C/HND/CO/2 (2017) 35; Cedeño v. Venezuela, CCPR/C/106/D/1940/2010, 29 October 2012 [7.2] [7.3]. 368 E.g., Poland CCPR/C/POL/CO/7 (2016) 36. Note also GC 32 [43]. 369 E.g., Morocco CCPR/C/MAR/CO/6 (2016) 26. 370 E.g., Morocco CCPR/C/79/Add.113 (1999) 18; Argentina CCPR/C/ARG/CO/4 (2010) 19. 371 E.g., Ireland CCPR/C/IRL/CO/4 (2014) 17. 372 E.g., Switzerland CCPR/C/79/Add.70 (1996) 16. 373 E.g., Morocco CCPR/C/79/Add.113 (1999) 18; Monaco CCPR/CO/72/MCO (2001) 14.

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right to remain silent during police questioning,374 and the right to compensation for miscarriage of justice.375 Reservations also feature prominently in Concluding Observations, as an inevitable consequence of their being a total of twenty-eight reservations under Article 14, more than any other Covenant provision. The Committee has pressed States to review the continued need for declarations and reservations, pointing out where they seem unnecessary,376 or are incompatible with the object and purpose of the Covenant.377 Some aspects of Article 14 reflect such fundamental principles of criminal law that the rationale and scope of reservations require closer scrutiny,378 to determine whether they can at least be reduced or partially withdrawn, and this has yielded some success over the years.379 While reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be.380

C O N C L US I O N Article 14 is directed at securing access to justice, and the delivery of minimum standards of justice, through a broad range of overlapping and interrelated guarantees. In addition, Article 14 supports the Covenant’s effectiveness, in proceedings before domestic courts in which Covenant rights are invokable; in that 374 E.g., France CCPR/C/FRA/CO/4 (2008) 14. 375 E.g., San Marino A/45/40 (1990) 440. See also GC 32 [52]. 376 E.g., Malta CCPR/C/79/Add.29 (1993) 10 and Malta CCPR/C/MLT/CO/2 (2014) 6 (Art. 14(2) and (6)); Korea CCPR/C/79/Add.114 (1999) 20 (Art. 14(5); Monaco CCPR CCPR/CO/72/ MCO (2001) 4; Italy CCPR/C/ITA/CO/5 (2006) 6 (Art. 14(3)); Australia CCPR/C/AUS/CO/5 (2009) 9 (Art. 14(6)); Belgium CCPR/C/BEL/CO/5 (2010) 7 (Art. 14(1)); Iceland CCPR/C/ ISL/CO/5 (2012) 4 (Art. 14(7)); Liechtenstein CCPR/C/LIE/CO/2 (2017) 9; Norway CCPR/C/ NOR/CO/7 (2018) 6, 7. 377 E.g., Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 7 (reservations to Art. 14(3)(d) and (6) jeopar dise the interests of justice). 378 E.g., Austria A/38/40 (1983) 191 for reservations prompting questioning whether they signified that the entire body of administrative penal sanctions was outside the provisions of the Covenant, and the comment that those under Art. 14(5) and (7) undermined very important principles of criminal law; similarly, Belize CCPR/C/BLZ/CO/1 (2013) 7 (a blanket reservation to Art. 14(3)(d) had the effect of depriving accused of the minimum guarantees). See also Korea A/47/40 (1992) 518 (sweeping reservation to Art. 14). 379 E.g., Norway CCPR/C/79/Add.112 (1999) 12 (partial withdrawal of the reservation to Art. 14(5), but complete withdrawal still recommended); Denmark CCPR/C/DNK/CO/5 (2008) 5 (after recent reform of the jury system the scope of the reservation to Art. 14(5) could be reduced, which resulted in some narrowing (Denmark CCPR/C/DNK/CO/6 (2016) 7); France CCPR/C/FRA/CO/4 (2008) 10 (interpretative declaration concerning Art. 14(5) later reduced (France CCPR/C/FRA/CO/5 (2015) 5)); Finland A/32/40 (1977) 125(c) (Art. 14(3)(d) reserva tion later withdrawn (Finland CCPR A/41/40 (1985) 167)); cf. Finland CCPR/C/FIN/CO/6 (2013) 4 (Art. 14(7) reservation maintained even though previously described by the Committee as without basis). 380 CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6 [8].

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capacity it operates in tandem with the obligations of implementation in Article 2(1) and (2), and to provide an effective remedy for violation in Article 2(3).381 The mutual reinforcement of its component provisions is a marked characteristic of Article 14, as discussed in the Introduction, and manifest in the progression through the individual provisions canvassed in this chapter. Most Article 14 guarantees are expressed in strict terms (the only right which on its terms is qualified is the right in Article 14(3)(c) to be tried without ‘undue delay’). While some facets of Article 14 are interpreted as absolute (notably the right to be tried by an independent and impartial tribunal) most admit certain latitude, in keeping with parallel Covenant principles or to give practical efficacy to individual provisions. Consistently with Article 26, equality before courts and tribunals permits distinctions in access to courts and tribunals that are justified on objective and reasonable grounds. Certain other aspects of Article 14, including the centrepiece right to a ‘fair and public’ hearing, are construed flexibly though limitatively. For example, lack of expedition of proceedings as an element of an unfair trial is judged by standards of reasonableness (consistently with Article 14(3)(c)); a ‘public’ hearing does not preclude exclusion of the public in appropriately confined circumstances, and it requires adequate facilities for the attendance of members of the public within reasonable limits; the efforts required to notify an accused of proceedings in support of their right to appear in person has practical bounds; and the right to call witnesses is not unlimited, but confined to those relevant for the defence. The Committee’s review of periodic reports is particularly revealing on the requirements of implementation of Article 14. The Committee’s resounding message is that Article 14 depends for its effectiveness on exacting standards of implementation, by law, in the domestic setting.

381 For obligations to render claims based on Covenant obligations invokable in domestic law, see chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘Article 2(2): Laws and Other Measures to Give Effect to Covenant Rights’ and ‘Article 2(3): Remedies’. For the application of Art. 14 to such claims, see this chapter, sections ‘Equality before the Courts and Tribunals’, ‘Right to “a Fair and Public Hearing” by a “Competent, Independent and Impartial Tribunal Established by Law”’, ‘Suit at Law’, above.

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Article 15: Retroactive Criminal Law

INTRODUCTION ARTICLE 15(1) ARTICLE 15(2): PRESERVATION OF TRIAL AND PUNISHMENT OF CRIMES ACCORDING TO GENERAL PRINCIPLES OF LAW RECOGNISED BY THE COMMUNITY OF NATIONS IMPLEMENTATION CONCLUSION

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Covenant Article 15 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Comparable Provisions in Other International Instruments European Convention: Article 7. American Convention on Human Rights: Article 9. African Charter on Human and Peoples’ Rights: Article 7(2).

INTRODUCTION Article 15 prohibits the retroactive application of criminal law, both in relation to criminal conviction (Article 15(1), first sentence) and greater severity of any sentence (second sentence). It also requires a more lenient penalty to be applied if one is introduced after the offence was committed (third sentence). Article 15(2) preserves the legitimacy of the trial and punishment of crimes ‘according to the 429

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general principles of law recognized by the community of nations’, prompted by concerns that the post-Second World War prosecution of war crimes may otherwise be called into question. Article 15 is directly related to the guarantees in Article 14. Its separation from Article 14 may be attributable to its non-derogable status, which differentiates it from Article 14. Machteld Boot finds support for this in the fact that the provisions equivalent to Articles 4 and 15 of the Covenant in other instruments combine to achieve the same result, notably Articles 7 and 15 of the European Convention, and Articles 9 and 27(2) of the American Convention. The Third Geneva Convention and its First Additional Protocol also contain provisions equivalent to the first sentence of Covenant Article 15(1) and the entirety of Covenant Article 15(1), respectively, emphasising their importance in time of war, when their nonderogable status assumes special importance.1 There is a very close nexus between Article 15 of the Covenant and Article 7 of the European Convention, drafted in virtually identical form (save for the additional third sentence in Article 15(1) of the Covenant). Both provisions were drafted in parallel and their common source is Article 11(2) of the Universal Declaration.2 Article 15(1) went beyond the abmit of Article 11(2) of the Universal Declaration by adopting in the third sentence the lex mitior principle that if the penalty for a crime changes between commission and conviction, the lighter penalty is to be imposed. Article 15(2) represents a further addition with the socalled ‘Nuremberg/Tokyo’ paragraph, by which nothing in Article 15 may prejudice the trial and punishment of anyone for an act or omission which, at the time it was committed was criminal according to ‘general principles of law recognized by the community of nations’.3

1 Machteld Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Intersentia, 2002), at p. 132 (referring to Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950, Art. 99; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978, Art. 75(4)(c)). As to whether there is one approach common to all international criminal tribunals, see Thomas Rauter, Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege (Springer, 2017). 2 Extensive coverage of the drafting history is provided by Kenneth Gallant, The Principle of Legality in International and Comparative Law (Cambridge University Press, 2009), pp. 178 200. 3 Gallant, The Principle of Legality, p. 176. For the distinction between retroactive and retrospective punishment, and the suggestion that the first and second sentences of Art. 15(1) prohibit both, see Shahram Dana, ‘Beyond Retroactivity to Realizing Justice: a Theory on the Principle of Legality in International Criminal Law Sentencing’, (2008/9) 99 J. Crim. L. & Criminology, p. 857, at p. 868 (where retroactivity refers to rendering conduct criminal and punishable only after the fact, and retrospectivity refers to an ex post change in the legal effect).

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This chapter will follow the structure, sentence by sentence, of the text of Article 15.

A RT I C L E 1 5 ( 1 ) First sentence: nulla poena sine praevia lege poenali (no crime without previous law)/nulla crimen sine lege (no crime without law). Core Principles Early findings of violation of the first sentence of Article 15(1) concerned convictions in Uruguay under a provision of the Military Penal Code which created criminal liability for ‘subversive association’. It was applied retroactively for acts which were not illegal at the time when they were committed.4 There was little interpretive jurisprudence on Article 15 until Rogerson v. Australia, when the Committee clarified that the term ‘criminal offence’ is to be interpreted in conformity with the term ‘criminal charge’ in Article 14(3). It found no violation when the author was found guilty of contempt of court, because contempt of court for breach of an injunction already constituted an offence under Australian law.5 Nicholas v. Australia gave rise to detailed Committee analysis of different questions under Article 15(1) following a drug-trafficking conviction in a trial in which evidence was admitted from a staged operation involving the ‘controlled importation’ of a trafficable quantity of heroin in which Thai and Australian enforcement officers participated. This was conducted within the framework of a ministerial agreement between the authorities exempting importation from customs scrutiny in such circumstances. However, importation of the heroin was still technically in contravention of the Customs Act, on which the author’s conviction was based. Evidence from such operations generally was rendered inadmissible by a High Court ruling in an unrelated case some months after the author’s arrest (Ridgeway v. The Queen), but later became admissible by legislative enactment, with retroactive effect (to before the author’s trial), intended to ‘cure’ the effect of Ridgeway. At a pre-trial hearing between the Ridgeway decision and passage of the legislation the author sought, and was granted, a permanent stay. After the legislation was passed the stay was lifted. The essence of the claim before the Committee was that were it not for the introduction of the retroactive legislation the author would have continued to enjoy the effect of a permanent stay in his favour. The Committee separately addressed two issues.

4 Weisz and Weinberger v. Uruguay, CCPR/C/11/D/28/1978, 29 October 1980 [16]; Pietraroia v. Uruguay, CCPR/C/12/D/44/1979, March 1981 [17]. 5 Rogerson v. Australia, CCPR/C/74/802/1998, 3 April 2002 [9.4].

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The first was whether the lifting of the stay on prosecution, and the author’s conviction as a result of admitting into evidence what was formerly inadmissible, was a retroactive criminalisation of conduct not criminal, at the time it was committed. It was unable to conclude that this constituted a violation of Article 15(1), because the Customs Act offences of which the author was convicted remained materially unchanged throughout, from the moment of the offending conduct through to the trial and conviction. The second and separate issue was whether the author was convicted for an offence, the elements of which, in truth, were not all present in his case, so that the conviction was in violation of the principle of nullum crimen sine lege. The Committee approached this from the proposition that whether a particular ‘act or omission’ gives rise to a conviction for a criminal offence can only be answered after a trial in which evidence is adduced to demonstrate that the elements of the offence have been proved to the necessary standard. If a necessary element cannot be made out then a conviction for the act or omission in question would violate both the principle of nullum crimen sine lege, and the principle of legal certainty, provided by Article 15(1). The effect of Ridgeway at the time of the stay was that the element of the crime could not be established because the illegality of the importation by enforcement officials rendered the relevant evidence inadmissible. The amending legislation did not remove the past illegality of the operations; it merely directed that the courts ignore the illegality, for the purposes of admissibility. The Committee concluded that because all of the elements of the crime existed at the time the offence took place, and each of these elements were proven by admissible evidence by rules applicable at the time of the author’s conviction, he was convicted according to clearly applicable law, and there was no violation of the principle of nullum crimen sine lege.6 A violation was ‘clearly disclosed’ in Sobhraj v. Nepal. The author was convicted of entering Nepal under a false identity, through the retroactive operation of immigration laws adopted several years after the incriminating facts. The Committee followed the principle in Nicholas, that Article 15(1) requires any ‘act or omission’ for which an individual is convicted to constitute a ‘criminal offence’, and if a necessary element of the offence cannot be properly proven, then a conviction for that act or omission would violate the first sentence of Article 15(1). The national courts had shifted this burden on the author, who was left with the responsibility to prove that he had not entered the Nepalese territory at the relevant time.7 The reference to ‘international law’ in the first sentence of Article 15(1) is intended to ensure that no one can escape punishment for a criminal offence under 6 Nicholas v. Australia, CCPR/C/80/D/1080/2002, 19 March 2004 [7.2] [7.7]. 7 Sobhraj v. Nepal, CCPR/C/99/D/1870/2009, 3 March 2009 [3.7], [7.6] (violation of Article 15(1) and Article 14(7)).

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international law on the basis that it was lawful under national law.8 (It also protects the individual from arbitrary action even by an international organisation.9) Baumgarten v. Germany concerned crimes committed by the author in the former German Democratic Republic (GDR) which were prosecuted after German reunification. He was a former Deputy Minister of Defence and Head of Border Troops of the GDR who was convicted in 1996 of homicide and attempted homicide for border shootings between 1980 and 1989 of those attempting to cross into the Federal Republic of Germany (FRG). Following reunification the Criminal Code provided that, as a rule, the law of the place where an offence was committed applied to pre-unification acts. For offences committed in the former GDR, the Criminal Code of the former GDR applied. The author therefore claimed he was convicted for acts committed in the line of duty which did not constitute a criminal offence under domestic law of the GDR or under international law. However, there was no doubt that the killings violated the GDR’s obligations under international human rights law, in particular Article 6 of the Covenant. The homicide provisions of the GDR Criminal Code had been interpreted and applied in the context of other relevant legislative provisions, to exclude statutory defences in the case of human rights violations, and not to excuse criminality based on the disproportionate use of lethal force at the border. The Committee could not find this interpretation of the law and the conviction of the author based on it to be incompatible with Article 15.10 Article 15(1) may not be invoked simply because a court is newly constituted to oversee certain trials. In Andela v. Cameroon there was no violation of Article 15(1) when a newly established Special Criminal Court was seized of the matter (even though the court did not exist at the time the offences were committed) because the change of court changed neither the legal characterisation of the offence nor the applicable penalty.11 Nulla poena sine lege certa States are under an obligation to define precisely by law all criminal offences, in the interest of legal certainty, and to preclude the application of criminal laws from being extended by analogy.12 The principle of lex certa is firmly established in 8 A/2929, Ch.VI (1955), p. 45 [94]. As to the argument that the term ‘international law’ in Art. 15(1) would cover conventions and ‘customary international law’, see Boot, Nullum Crimen Sine Lege, pp. 140 1. 9 Noor Muhammad, ‘Due Process of Law for Persons Accused of a Crime’, p. 164; A/2929, Ch.VI (1955), p. 45 [94]. 10 Baumgarten v. Germany, CCPR/C/78/D/960/2000, 31 July 2003 [9.4], [9.5]. 11 Zogo v. Cameroon, CCPR/C/121/D/2764/2016, 8 November 2017 [6.15]. 12 Nowak, CCPR Commentary, p. 360. See Kivenmaa v. Finland, CCPR/C/50/D/412/1990, 31 March 1994 [3], [7.5], [9.4] (the Committee did not address the Art. 15 claim but both parties agreed that in principle Art. 15 prohibits ex analogia application of a law to the disadvantage of a person charged with an offence).

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European law as ‘a general principle of Union law’, binding both European and national legislators.13 Principles of nulla poena sine lege certa (no punishment without clear law) are now emerging more discernibly in Committee jurisprudence, for example, when attacking as a fair trial matter criminal legislation formulated in a broad and vague fashion that is susceptible to wide interpretation, and does not comply with the principle of legal certainty and predictability.14 They are perhaps clearest in the Committee’s Concluding Observations, in which it has expressed, as an Article 15 issue, regret at the unclear definition of offences, most often those relating to counter-terrorism, and at their vagueness and imprecision, which could lead to arbitrary application, which is particularly serious given that Article 15 is non-derogable.15 Such offences also raise issues under Article 6 where punishable with the death penalty.16 Events surrounding the impeachment of former Lithuanian President Rolandas Paksas led to the conclusion in Paksas v. Lithuania that Article 25 was violated by a rule-making process that lacked necessary foreseeability and objectivity. His Article 15 claim that a lifelong prohibition on his standing for election and being appointed to office was applied to him retroactively was inadmissible because the 13 André Klip, Substantive Criminal Law of the European Union (Maklu, 2011), p. 69. 14 Nasheed v. Maldives, CCPR/C/122/D/2270/2013, 4 April 2018 [8.3] (violation of Art. 14(1)). 15 E.g., Estonia CCPR/CO/77/EST (2003) 8 (concern that the relatively broad definition of the crime of terrorism and of membership of a terrorist group may have adverse consequences for the protection of rights under Art. 15); Israel CCPR/CO/78/ISR (2003) 14 (vagueness of definitions in Israeli counter terrorism legislation and regulations which, although their application was subject to judicial review, appeared to run counter to the principle of legality owing to the ambiguous wording of the provisions and the use of several evidentiary presumptions to the detriment of the defendant, with adverse consequences for the rights protected under Art. 15, which is non derogable); Russian Federation CCPR/CO/79/RUS (2003) 20 (concern that the definition of ‘extremist activity’ was too vague to protect individuals and associations against arbitrariness in its application; encouraged revision with a view to making the definition more precise, to exclude any possibility of arbitrary application and give notice to persons concerned regarding actions for which they will be held criminally liable (Arts 15 and 19 22); Belgium CCPR/CO/81/BEL12 (2004) 24 (definition of terrorism referred to the degree of severity of offences and the perpetrators’ intended purpose, and did not entirely satisfy the principle of offences and penalties being established in law (Art. 15); recommendation to produce a more precise definition of terrorist offences); Uganda CCPR/CO/80/UGA (2004) 8 (lack of objective criteria for determining membership in a proscribed ‘terrorist organization’ (Arts 2 and 15)); Ethiopia CCPR/C/ETH/CO/1 (2011) 15 (regret at the unclear definition of certain offences, and scope (including the criminalisation of encouragement of and inducement to terrorism through publication, which can lead to abuse against the media (Arts 2, 15 and 19); recommendation to define the nature of those acts with sufficient precision to enable individuals to regulate their conduct accordingly); Korea CCPR/C/KOR/CO/4 (2015) 20, 21 (concern that the definition of cyberterrorism is particularly vague, which could result in its arbitrary application (Arts 9, 14, 15 and 17); should ensure that acts of terrorism are defined in a precise and narrow manner); Pakistan CCPR/C/PAK/CO/1 (2017) 21 (Art. 15 concern at the very broad definition of terrorism). 16 E.g., Egypt CCPR/C/79/Add.23 (1993) 8 (particularly disturbed by provisions contrary to Arts 6 and 15: the definition of terrorism was so broad that it encompassed a wide range of acts of differing gravity, and should be reviewed and stated much more precisely, especially in view of the fact that it enlarged the number of offences punishable with the death penalty).

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outcome of the impeachment proceedings was not to charge him with a ‘criminal offence’ and to hold him ‘guilty of a criminal offence’ within the meaning of Article 15.17 The background to Ribeiro v. Mexico was that the author was a journalist and human rights defender who had published a book alleging that senior business leaders and officials were involved in the sexual exploitation of children. She claimed a violation of Article 15 in the lack of legal certainty in the definition of offences for which she was arrested and detained, of ‘defamation’ and ‘calumny’, which allowed considerable latitude in determining what conduct was criminalised. While such offences no longer existed in a number of Mexican states, they were still offences in various others and could have extraterritorial application, further impeding legal certainty. The Committee found multiple violations in restrictions on her freedom of expression, her detention and her ill-treatment while detained, but her Article 15(1) claim was inadmissible, because the coexistence of different criminal statutes in a federal State does not in itself violate the Covenant. There was also nothing in her claim to show that the (criminal) acts attributed to her did not constitute, at the time of their commission, offences under the law then in force. She simply failed to meet the evidential hurdle in substantiating her claim.18 Review of Domestic Interpretation and Application of the Law In the Committee’s OP1 assessments the specific nature of any violation of Article 15(1) requires it to review whether the interpretation and application of the relevant criminal law by the domestic courts in a specific case disclose a violation of the prohibition of retroactive punishment, or punishment otherwise not based on law.19 The Committee shows restraint when adjudicating Article 15 claims, similar to when reviewing claims under other Covenant provisions. In Dassum and Dassum v. Ecuador it followed the familiar formula taken in the case of Articles 7 and 14, for example, that it is for domestic courts to evaluate the facts and the evidence in each particular case, or the application of domestic legislation, unless it can be proven that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice.20 The Committee was not able to 17 Paksas v. Lithuania, CCPR/C/110/D/2155/2012, 25 March 2014 [3.9], [7.8], [8.4]. For an inadmissible claim on similar (incompatible ratione materiae) grounds, see Strik v. Netherlands, CCPR/C/76/D/1001/2001, 1 November 2002 [7.3] (employee disciplinary mea sures). On foreseeability, cf. Kruyt Amesz et al. v. Netherlands, CCPR/C/56/D/664/1995, 25 March 1996 [3], [4.2]. 18 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018 [3.2], [9.6]. See also M.A.K. v. Spain, CCPR/C/123/D/2831/2016, 13 July 2018 [3.6], [6.5] (inadmissible claim that the charges that served as the basis for the extradition request related to offences not punishable under Spanish law). 19 Baumgarten v. Germany, CCPR/C/78/D/960/2000, 31 July 2003 [9.3]. 20 Dassum and Dassum v. Ecuador, CCPR/C/116/D/2244/2013, 30 March 2016 [7.14]; chapters on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Obligations

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find a violation of Article 15 when a new criminal offence of ‘special bank embezzlement’ concerning intra-group loan operations was added to the Criminal Code after the relevant acts were committed by the authors. The authors were tried under the previous provision, but alleged it was reinterpreted to cover inter-company loan operations. In other words, their assertion was that Article 15(1) was violated by a broader or improper interpretation of the old law designed to give retroactive effect to the new law. The Committee noted that the conduct imputed to them was already defined as a criminal offence in force at the time of the events (bank embezzlement) and that the amendment simply clarified the range of perpetrators capable of committing the established offence. There was insufficient evidence that the interpretation by domestic courts was manifestly wrong or arbitrary, and the material did not allow the Committee to conclude that there was a violation of Article 15.21 The formula used to express the limits on the Committee’s review was expressed in slightly different form in Maroufidou v. Sweden in reference to Article 13 (where the claim was that an expulsion decision was not ‘in accordance with law’ because domestic law was incorrectly interpreted): the interpretation of domestic law is essentially a matter for domestic courts and authorities and it is not within the powers or functions of the Committee to evaluate whether they have interpreted the law correctly, unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power.22 Maroufidou was relied on by the Committee when rendering inadmissible the Article 15 claim in De Groot v. Netherlands that convictions for participating in civil disobedience, when protesting against militarism close to a military base, were based on provisions so vague as to violate the principle of legality, because their application in the circumstances could not have been foreseen. The Committee’s underlying reasoning (that it does not appear that the law was interpreted and applied arbitrarily or that its application amounted to a denial of justice) was, however, closer to that expressed in Dassum (in spite of citing Maroufidou).23 The claim in Kruyt-Amesz et al. v. Netherlands was also inadmissible, that the Penal Code was so broad that it could not have been foreseen that it was applicable to the authors’ participation in the protest, closely following De Groot.24

21 22 23

24

on Expulsion or Extradition; Article 14: Fair Trial Rights, sections ‘Manifestly Arbitrary or a Denial of Justice’, ‘Biased and Arbitrary’. Dassum and Dassum v. Ecuador, CCPR/C/116/D/2244/2013, 30 March 2016 [4.9], [7.14]. Maroufidou v. Sweden, Communication No. 58/1979, CCPR/C/OP/1 at 65, 9 April 1981 [10.1]. De Groot v. Netherlands, CCPR/C/54/D/578/1994, 14 July 1995 [4.3] (applying Maroufidou, interpretation of domestic legislation is essentially a matter for domestic courts and authorities; since it does not appear that the law was interpreted and applied arbitrarily or that its application amounted to a denial of justice, the communication was inadmissible). Kruyt Amesz et al. v. Netherlands, CCPR/C/56/D/664/1995, 25 March 1996 [4.2] (approaching admissibility the same way as in De Groot).

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Second and Third Sentences: lex mitior The principle of lex mitior, of applying the more lenient sanction, has two aspects under Article 15(1): that a heavier penalty may not be imposed than was applicable at the time of the offence (second sentence); and, if after the offence was committed a lighter penalty applies as a matter of law, the offender shall benefit from the lighter penalty (third sentence). In the Commission on Human Rights some delegates were concerned that the third sentence contradicted the assumption underlying the second sentence, and that, in spite of the laudable aims of the third sentence, it was not appropriate to make provision for it in the Covenant, since it would seem to mean that those convicted would be enabled as of right to demand that they should benefit from any change made in the law after their conviction. This should be within the absolute discretion of the executive authority of States. These views were met with the observations that the tendency in modern criminal law was to allow a person to enjoy the benefit of such lighter penalties as might be imposed after the offence had been committed, and laws imposing new and lighter penalties were often the concrete expression of some change in the attitude of the community towards the offence in question.25

Second Sentence: No Heavier Penalty May be Imposed than Applicable at the Time of the Offence The operation of the second sentence of Article 15(1) is demonstrated by two cases involving obvious violation, Casafranca de Gomez v. Peru and Shikhmuradova v. Turkmenistan. The victim of numerous Covenant violations in Casafranca was subjected to an unfair trial before a faceless Chamber and sentenced to a minimum term of twenty-five years under a new, stricter penalty regime for terrorist offences that became effective only after the alleged offence. It was more than double the minimum term under the previous law, and the court gave no explanation as to what would have been the sentence under the old law if it had been applied.26 The violation in Shikhmuradova similarly occurred in events closely connected with the victim’s unfair trial, when accused of being the mastermind behind the failed attempt on the president’s life. The allegations were that after a political and unfair consideration of the case, his sentence of 25 A/2929, Ch.VI (1955), p. 45 [95]. Wolfgang Schomburg points out that while accepting that the principle of lex mitior formed an internationally recognised standard protecting the rights of the accused, the Trial Chamber in Nikolić held that the principle only applied to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction: Wolfgang Schomburg, ‘Development of Human Rights before International Criminal Tribunals: a European Perspective’, (2010) 17(2) Hrvatski Ljetopis za Kazneno Pravo i Praksu; Zagreb, p. 909, at p. 937, referring to Prosecutor v. Nikolić, Case No. IT 94 2 S, Sentencing Judgment. 26 de Gomez v. Peru, CCPR/C/78/D/981/2001, 22 July 2003 [7.4].

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twenty-five years of imprisonment was changed to life imprisonment by the unanimous decision of a political body. It was uncontested that the heaviest penalty under Turkmen law at the time of the alleged crimes was twenty-five years. Life imprisonment as a penalty was enacted only after his conviction.27 The issue in Filipovich v. Lithuania was whether a law in force after the offence was committed was in fact applied. It concerned a sentence of six years’ imprisonment for premeditated murder as a result of a fight. The penalty for premeditated murder under the law at the time of the offence was three to twelve years’ loss of liberty. The author claimed he was sentenced under a stricter new provision which provided for five to twelve years’ loss of liberty (the court did not specify which version of the Criminal Code had been applied). The State pointed out the aggravating circumstance that the author was drunk and the absence of any mitigating circumstances, and that the sentence was well within the limits set in the earlier provision. In those circumstances the Committee could not conclude that the penalty was not meted out according to the law that was in force at the time when the offence was committed.28 The focus in the second sentence is on whether a heavier penalty was applied. Westerman v. Netherlands concerned a charge for refusing to carry out military orders. At the time of the refusal this was an offence under the Military Criminal Code, but when the author was convicted the Code had changed. It was applied to him in its amended form, with the result that the offence for which he was convicted was only constituted by total refusal to perform any military duty, rather than a single refusal of orders. The Committee found there was no violation because the sentence of nine months imposed was no heavier than that applicable at the time of the offence.29 An Article 15 finding was also not made in Fardon v. Australia, but that provision contributed to the conclusion that the ‘grounds’ and the ‘procedures’ required to be ‘established by law’ under Article 9(1) were arbitrary. While the author was still under a fourteen-year sentence, legislation came into effect which allowed a prisoner who was proved to be a serious danger to the community to be detained for an indefinite term for control, care or treatment. One of the reasons why these preventive detention provisions were arbitrary was that any further term of detention, after expiry of the prison sentence, was the result of court orders made fourteen years after the author’s conviction and sentence, for predicted future criminal conduct, which had its basis in the very offence for which he had already served his sentence. The orders for his continued incarceration relied on that legislation applied retroactively, against the prohibition of Article 15(1), by subjecting him to a heavier penalty ‘than was applicable at the time when the

27 Shikhmuradova v. Turkmenistan, CCPR/C/112/D/2069/2011, 17 October 2014 [3.4], [6.7]. 28 Filipovich v. Lithuania, CCPR/C/78/D/875/1999, 4 August 2002 [3.3], [4.8], [7.2]. See also V. M. v. Russian Federation, CCPR/C/114/D/2043/2011, 15 July 2015 [8.2], [8.3]. 29 Westerman v. Netherlands, CCPR/C/67/D/682/1996, 13 December 1999 [9.2].

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criminal offence was committed’. Detention pursuant to proceedings incompatible with Article 15 was necessarily arbitrary within the meaning of Article 9(1).30 In a differently framed decision not long before in De León Castro v. Spain there was no violation of Article 9 when limited eligibility for prison privileges prevented a lawyer convicted of fraud being granted parole because he had not satisfied his civil liabilities arising from the offences. The Committee could not conclude ‘that the denial of parole to the author made his imprisonment for the entire duration of his sentence arbitrary’. No Article 15 claim was made, though in her Dissenting Opinion Ruth Wedgwood pointed out that a penalty imposed in violation of Article 15 is also ‘arbitrary’ within the meaning of Article 9.31 Adverse changes to parole entitlements following revisions in sentencing practice have not resulted in success under Article 15. It is not the Committee’s function to make a hypothetical assessment of what would have happened if the new regime had been applied to a claimant, and it cannot be assumed what a sentencing judge applying new sentencing legislation would in fact have concluded by way of sentence.32

Third Sentence: Lighter Penalty to Apply if Introduced Following Commission of the Offence The third sentence in Article 15(1) applies equally to instances of decriminalisation as alleviation in sentencing. In Third Committee drafting some delegates were concerned that this provision could be interpreted to mean that an offender who was already serving a sentence was automatically entitled to have it reduced if the law were revised to specify a lighter penalty for the same offence. It was pointed out that in some legal systems all cases were reviewed at regular intervals and sentences were often reduced. The reduction of the penalty, however, was not and should not be automatic. The judge should decide on such questions on the merits of each 30 Fardon v. Australia, CCPR/C/98/D/1629/2007, 18 March 2010 [7.3], [7.4(2)]. See also Tillman v. Australia, CCPR/C/98/D/1635/2007, 18 March 2010 [7.3], in similar terms (based on similar circumstances); and Individual Opinion of Mr Rajsoomer Lallah in Rameka et al. v. New Zealand, CCPR/C/79/D/1090/2002, 6 November 2003, responding to the Committee’s finding of no violation of Art. 9 in preventive detention following a punitive sentence: ‘There is . . . nothing wrong in legal measures enabling early release, but enabling an administrative body to determine in effect the duration of the sentence beyond the statutory minimum is another matter. I would thus conclude as follows: . . . a violation of article 15, paragraph 1, of the Covenant has occurred, because that article only permits the criminalization and sanctioning, by law, of past acts but not acts which it is feared might occur in the future [and] because the law does not prescribe a finite sentence to be imposed by the trial Court.’ For the Committee’s criticism of preventive detention in Concluding Observations, see, e.g., New Zealand CCPR/CO/75/NZL (2002) 10; France CCPR/C/FRA/CO/4 (2008) 16; France CCPR/C/FRA/CO/5 (2015) 11. 31 De León Castro v. Spain, CCPR/C/95/D/1388/2005, 19 March 2009 [9.3]. 32 MacIsaac v. Canada, CCPR/C/17/D/55/1979, 14 October 1982 [11] [12]; Van der Plaat v. New Zealand, CCPR/C/93/D/1492/2006, 22 July 2008 [6.3].

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case. Moreover, the wording seemed to indicate that one applicable penalty should be replaced by another and lighter penalty, when in some countries there was not a single penalty but a scale of penalties for each offence, and the actual term of imprisonment was decided by the judge. Some representatives considered that the operation of the principle underlying this provision should not be limited to the time when sentence was passed.33 An oral amendment proposed by the United Kingom to insert the words ‘and before the sentence is passed’ after ‘commission of the offence’ was defeated.34 The third sentence applies not only to sentence reduction for offences, but also the abolition of offences. As the Committee confirmed in Cochet v. France, Article 15(1) should not be interpreted narrowly. Since it refers to the principle of retroactive effect of a lighter penalty, it should be understood to refer a fortiori to a law abolishing a penalty for an act that no longer constitutes an offence.35 In general the Committee is uncritical of abolitionist countries in their transition away from the death penalty. A number of claims concerning the abolition of capital punishment while the underlying offences remained were directed at the third sentence of Article 15(1). The year after the author in Tofanyuk v. Ukraine was sentenced to death for premeditated murder the Constitutional Court declared that capital punishment was unconstitutional. The result was that the most severe punishment under the Criminal Code, with capital punishment removed, was fifteen years’ imprisonment or twenty years in case of a pardon. As part of a package of legislative changes which followed, death sentences were commuted to life imprisonment. He claimed that this increased the penalty for the offence which he committed, relative to the penalty in force between the Constitutional Court decision and when the most recent changes were implemented. The Committee considered that the legislative package fully respected the purpose of the Constitutional Court’s decision, to abolish the death penalty, which was more severe than life imprisonment. That decision in itself did not imply commutation of the sentence, nor did it establish a new penalty to replace the death sentence. The amendments were the only ones to provide a lighter penalty from which the author could benefit, and under them there was no violation in substituting life imprisonment for capital punishment for the crimes he committed.36

33 A/4625 (1960), p. 5 [17] [18]. 34 A/C.3/SR.1013 [11]. 35 Cochet v. France, CCPR/C/100/D/1760/2008, 21 October 2010 [7.3]. 36 Tofanyuk v. Ukraine, CCPR/C/100/D/1346/2005, 20 October 2010 [11.3]. For a similar conclu sion, see Butovenko v. Ukraine, CCPR/C/102/D/1412/2005, 19 July 2011 [7.13]. See also Quliyev v. Azerbaijan, CCPR/C/112/D/1972/2010, 16 October 2014 [9.4] (the author argued he should have benefited from a fifteen year sentence, which was the highest penalty (except for the death penalty) provided by law at the time of commission of the offence, and which should have been the highest penalty applicable to his case after the death penalty was abolished. The Committee found that substituting life imprisonment for capital punishment did not violate Art. 15(1)).

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The Committee has been reluctant to find a violation of Article 15(1) where the sentence under an enactment following the commission of the offence was well within the margin provided by the law which then applied; and the sentence may also take account of relevant aggravating circumstances. The author in Gavrilin v. Belarus was found guilty of fraud, of escape from detention, and of further fraud offences following that. During this time there was a transition from an old to a new criminal code and the new code underwent successive changes. The author claimed that the provisions of the new code, as amended, establishing a lighter penalty for fraud, should have been applied retrospectively in his case. In various of his appeals the court decided there were no grounds for review because his sentences fell within the sentencing margin allowed under the new code, as amended. The Committee referred to its decision in Filipovich, discussed above, in particular that there was no violation of Article 15(1) because the author’s sentence was well within the margin provided by the earlier law and that the State had also relied on the existence of certain aggravating circumstances. In Gavrilin it could not find the author’s sentencing was incompatible with Article 15(1) because it was well within the margins provided by both the old code and the new code, as amended, and the court took into account the public danger of the author’s actions and his personal circumstances.37 The issue in Van Duzen v. Canada was that the combined effect of changes to parole rules was that forfeiture of parole was abolished, and the penalty for committing an indictable offence while on parole was made lighter, provided the indictable offence was committed after the changes came into force. The upshot was that a parolee whose parole was revoked after that date was not required to spend an equivalent time in custody under the previous sentence. The main point before the Committee was whether the provision for the retroactivity of a ‘lighter penalty’ in Article 15(1) applied in those circumstances. In the event, the Committee did not answer this because the author was released before the date when he claimed he should have been.38

A RT I C L E 1 5 ( 2 ) : P R E S E RVATI O N O F TR I A L A N D P U N I S H M E N T O F C R I M E S A C C O R D I N G TO G E N E R A L P R I N C I P L E S O F L AW R E CO G N I S E D B Y T H E C O M M U NI T Y O F N AT I O N S Article 15(2) is a saving provision aimed at avoiding any interpretation or application of Article 15(1) prejudicing prosecution of matters which, at the time they were committed, were criminal according to ‘general principles of law recognized by the community of nations’. 37 Gavrilin v. Belarus, CCPR/C/89/D/1342/2005, 28 March 2007 [2.1], [2.2], [2.7], [8.3]. 38 Van Duzen v. Canada, Communication No. 50/1979, CCPR/C/OP/1 at 118, 18 May 1979 [10.3].

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In the Commission on Human Rights some delegates regarded Article 15(2) as superfluous. If, as was claimed, it was intended as a confirmation of the principles applied by the war crimes tribunals after the Second World War, it might have the opposite effect, of calling into question the validity of the judgments of those tribunals. If it was intended as a guarantee that no alleged war criminal in the future would be able to argue that there were no positive principles of international law or of relevant national law qualifying alleged acts as crimes, it merely reiterated what was already contained in the expression ‘international law’ in Article 15(1), since that term included the generally recognised principles of law mentioned at the end of Article 15(2). Some considered that the saving provision in Article 15(2) had no application to past convictions for war crimes, nor was it fully covered by the term ‘international law’ contained in Article15(1).39 There was a proposal in the Third Committee, which gathered some support, to delete Article 15(2) because the expression ‘criminal according to the principles of law recognized by the community of nations’ had no precise legal meaning. Offences could not be defined on the basis of principles, much less on the basis of ‘general’ principles. Any penal provision should first define the offence and secondly lay down the penalty. No court should be allowed to convict an individual by applying vague general principles. It was pointed out that the Nuremberg principles define certain categories of acts regarded as criminal, but did not lay down definitive penalties. Other delegates, relying on the Covenant as an instrument of progress, argued for the retention of Article 15(2), which would eliminate any doubts regarding the legality of the judgments rendered by the Nuremberg and the Tokyo tribunals. It was also pointed out that the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgments of that tribunal were confirmed by the General Assembly. Article 15(2) would confirm and strengthen those principles, and would ensure that if in the future crimes should be perpetrated similar to those punished at Nuremberg, they would be punished in accordance with the same principles.40 Article 15(2) would address such acts as the border killings which were the subject of Baumgarten v. Germany, contrary to international human rights law, in particular Article 6, so as not to prejudice the trial and punishment of such acts.41 Indeed, there is an obligation to do so stemming from Article 2, and in its Concluding Observations the Committee was particularly concerned that a Montenegro court found that violations surrounding disappearances did not constitute criminal offences by the law at the time when committed, despite the saver contained in Article 15(2). It recalled that Article 15 permits States to employ retroactive criminal statutes 39 A/2929, Ch.VI (1955), p. 45 [96]. 40 A/4625 (1960), p. 4 [15] [16]. 41 For interesting discussion of Baumgarten v. Germany in this context, see Joseph and Castan, The International Covenant on Civil and Political Rights, pp. 529 32.

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to bring those responsible for such violations to trial when the acts were criminal according to the general principles of law recognised by the community of nations at the time when they were committed.42

I M P L E M E N TAT I O N The Committee has expressed concern where domestic law does not explicitly prohibit derogation from Article 15 (among other non-derogable provisions); it has recommended corrective legislation to conform with Article 4,43 and constitutional amendment to avoid concurrent incompatibility with Articles 4 and 15.44 It has pointed to the absence in domestic law of any provision expressly prohibiting the enactment of retroactive legislation contrary to Article 15;45 it has enquired whether retroactivity to the detriment of the accused in legislation could be cured by judicial decision;46 and has directed its questioning to whether the prohibition against retroactive criminal measures operates in practice.47 It has questioned States extensively about implementation of the stipulations of Article 15,48 it has drawn attention to instances of inconsistency of domestic law with

42 Montenegro CCPR/C/MNE/CO/1 (2014) 9. See also Germany (FRG) A/33/40 (1978) 347 (additional information was requested concerning the implementation of Art. 15 in the light of the fact that the punishment of war criminals was a requirement of international law). 43 Belize CCPR/C/BLZ/CO/1 (2013) 14; Madagascar CCPR/C/MDG/CO/4 (2017) 9. For other Committee concerns about derogation from Art. 15 (among other non derogable provisions) in state of emergency, see, e.g., Chile A/34/40 (1979) 78; Mali A/36/40 (1981) 234; Uruguay A/37/ 40 (1982) 270; Chile A/40/40 (1985) 55; Israel CCPR/C/79/Add.93 (1998) 11; Madagascar CCPR/C/MDG/CO/4 (2017) 9. 44 Sri Lanka CCPR/CO/79/LKA (2003) 8 (concern that the Constitution permitted derogation from Art. 15; recommendation to bring the Constitution into conformity with Arts 4 and 15), similarly Sri Lanka A/39/40 (1984) 109, 128. 45 Canada A/35/40 (1980) 167 (members of the Committee pointed out that the absence in Canadian law of any provision expressly prohibiting parliament from enacting retroactive legislation made one conclude that such possibility could not be totally excluded). 46 Chile A/39/40 (1984) 441 (asking whether one or other of the provisions of Art. 8 of the Constitution, which involved an element of retroactivity to the detriment of the accused, contrary to Art. 15, could be declared by judicial decision to be a violation of human rights). 47 Gambia A/39/40 (1984) 335 (whether the constitutional provisions prohibiting the retroactive enforcement of an act of criminal law had been observed in the case of the dissolution of a particular association); Italy A/44/40 (1989) 581 (further information was sought with regard to the implementation in practice of Art. 15). 48 For Committee questioning about compliance (most of it comparatively early) with Art. 15(1) first sentence, see, e.g., USSR A/33/40 (1978) 423 (retroactivity of laws); Iran A/37/40 (1982) 315 (acts committed at the time of the previous regime); Australia A/38/40 (1983) 149 (retro spective criminal legislation); Chile A/39/40 (1984) 469 (military or special courts); Mongolia CCPR A/41/40 (1986) 251)(‘norms of criminal law have retroactive force if that is specifically indicated in the law’); Zambia A/43/40 (1988) 105; second sentence, see Germany (FRG) A/33/ 40 (1978) 347, 361; Viet Nam A/45/40 (1990) 472; third sentence, see Norway A/36/40 (1981) 348, 350; Austria A/38/40 (1983) 192, 212; Iceland A/38/40 (1983) 111; Spain A/40/40 (1985) 491; Philippines A/44/40 (1989) 328, 352; Portugal A/45/40 (1990) 149, 150.

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Article 15,49 and has recommended harmonisation, suspension or repeal of offending provisions.50 Concerning reservations and declarations, it has pressed States as to the reasons for not withdrawing them,51 and has requested that consideration be given to withdrawal.52

C O N C L US I O N Article 15 prohibits the retroactive application of criminal law, both in relation to a guilty finding and in the severity of sentencing. It also mandates retroactivity when lighter sentences are subsequently introduced. Although it appears to be passive in not prejudicing the prosecution of acts which are criminal according to the general principles of law recognised by the community of nations, the reality is that it combines with Article 2 to mandate the prosecution of such acts. The first sentence of Article 15(1) is particularly potent in attacking, with gaining recognition of lex certa principles, vaguely drawn legislation capable of arbitrary application, which is most commonly encountered in counter-terrorism measures but in some countries is increasingly used as a means of stifling protest and freedom of expression.

49 E.g., Iraq A/42/40 (1987) 361 (one member noted that Resolution 461 of the Revolutionary Command Council provided for prosecution on a retroactive basis and that that contravened Arts 6(2) and 15). 50 E.g., Korea A/47/40 (1992) 518 (recommended to harmonise to a greater extent the Penal Code with the provisions of Art. 15); Iraq CCPR/C/79/Add.84 (1997) 11 (concern that Revolutionary Command Council Decree No. 115 violated Art. 6(2) by stipulating that the death penalty for evasion of military service, with retroactive provisions, was contrary to Art. 15; suspension of the decree recommended); Portugal (Macau) CCPR/C/79/Add.115 (1999) 12 (penal legislation should be brought into line with Art. 15); Korea (DPRK) CCPR/CO/72/PRK (2001) 14 (Art. 10 of the Criminal Code provides for punishment for an offence not provided for in the Code to be imposed; repeal recommended); Morocco CCPR/CO/82/MAR (2004) 20 (anti terrorism legisla tion applied retroactively; should amend the legislation by clearly defining its scope, and ensure compliance with Art. 15). 51 Italy CCPR/C/ITA/CO/5(2006) 6 (more detailed information requested on the reasons why the withdrawal of the State party’s reservations to Art. 15(1) was not envisaged). 52 Germany CCPR/CO/80/DEU (2004) 10 (regret that Germany maintained its reservations regard ing Art. 15(1), a non derogable right; should consider withdrawing it); Germany CCPR/C/DEU/ CO/6 (2012) 5 (regret that not taken the necessary steps to withdraw the reservation).

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Article 16: Recognition as a Person Before the Law

INTRODUCTION SITUATIONS OF VULNERABILITY TO ARTICLE 16 VIOLATION IMPLEMENTATION CONCLUSION

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C O V E N A N T A RT I C L E 1 6 Everyone shall have the right to recognition everywhere as a person before the law. Comparable Provisions in Other International Instruments European Convention: no direct counterpart. American Convention on Human Rights: Article 3. African Charter on Human and Peoples’ Rights: Article 5.

INTRODUCTION Substance of the Right Article 16 is short but profound. At a practical level recognition as a person before the law is foundational to the enjoyment of all Covenant rights, since without legal existence those rights may not be asserted by a person within the domestic legal order. It is also fundamentally inseparable from the recognition which the Covenant gives in its Preamble to ‘the inherent dignity of the human person’ from which all human rights stem.1 As Nowak put it: It is one of the individual’s rights of existence. In addition to physical and spiritual existence, the individual in a State governed by the rule of law also requires the recognition of his or her existence before the law, that is, of his or her 1 For the connection to inherent dignity, see Fernando Volio, ‘Legal Personality, Privacy, and the Family’, in Louis Henkin (ed.), The International Bill of Rights: the Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 185, at p. 186.

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a commentary on the iccpr legal subjectivity. Without this right, the individual could be degraded to a mere legal object, where he or she would no longer be a person in the legal sense and thus be deprived of all other rights, including the right to life . . . Recognition of legal personality is thus a necessary prerequisite to all other rights of the individual.2

There is a distinction between recognition as a person before the law and legal capacity to act. In the Third Committee there was general agreement that ‘Article 16 was intended to ensure that every person would be a subject, and not an object, of the law; but that it was not intended to deal with the question of a person’s legal capacity to act, which might be restricted for such reasons as minority or insanity’.3 Article 16 does not therefore extend to a far-reaching right to civil capacity to act, even though such a right was contemplated in the preparation of Article 6 of the Universal Declaration, from which Article 16 is derived.4 Interaction between Article 16 and Other Covenant Provisions For some time Article 16 was less visible in Committee findings than it might have been, partly because the claims in which it arose lent themselves to more convenient or stronger decisions under other Covenant provisions. It is deployed most frequently in cases of enforced disappearance, by virtue of the prolonged lack of protection of the law which this entails (also in violation of Articles 7 and 9, and when it results in fatality Article 6), but with less consistency in other areas. Given the Committee’s lack of broadly based jurisprudence under Article 16, it has not been the subject of a specific General Comment, though it has been mentioned in other General Comments, including General Comment 17 (Article 24), to signify how the right of every child to be registered immediately after birth and to have a name promotes recognition of the child’s legal personality (Article 27 is also relevant where this adversely affects indigenous children);5 and General Comment 28 (Article 3) when alluding to cultural or religious obstacles to gender equality, to stress that the right to legal personality is not to be curtailed by reason of gender or marital status, and that women may not be treated as objects, for example, to be given together with the property of a deceased husband to his family.6 In the context of

2 Nowak, CCPR Commentary, p. 369. 3 A/4625 (1960), p. 9 [25]. 4 For narrative on the deliberate exclusion of the capacity to act, see Nowak, CCPR Commentary, pp. 370 1. The Art. 16 claim was admissible but not specifically determined in Del Avellanal v. Peru, Communication No. 202/1986, Supp. No. 40 (A/44/40) at 196, 28 October 1988 [2.1], [7] when a married Peruvian woman was not able to sue tenants for non payment of rent for their apartments because under the civil code only the husband of a married woman was entitled to represent matrimonial property before the courts. 5 General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989, adopted at the Thirty fifth Session of the Human Rights Committee, on 7 April 1989 (GC 17) [7]. 6 CCPR General Comment No. 28: Article 3 (The Equality of Rights between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10 (GC 28) [19].

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forced marriage and the treatment of women as transferable commodities Articles 3, 8 (servitude) and 16 coincide. Article 16 is capable of applying to situations where individuals are declared legally dead, including as a condition for relatives to claim compensation for enforced disappearance, and where converts from a religion are considered legally dead, which then also raises Articles 2, 18 and 26 (and other provisions, depending on the consequences of such a declaration). It also applied in combination with Article 7 to administrative detention in Israel for security purposes in holding Lebanese individuals as ‘bargaining chips’ for negotiation.7 Chapter Outline This main part of this chapter concerns various situations of vulnerability to Article 16 violation disclosed in the Committee’s jurisprudence and in its Concluding Observations, spanning such issues as enforced disappearance, human trafficking, collective punishment, the consequences of certain entrenched forms of gender discrimination, and the protection and treatment of children and those with disabilities.

S I T U ATI O N S O F V U L N E R A B I L I T Y TO A RTI C L E 1 6 V I O L ATI O N Enforced Disappearance As discussed in more detail in the chapter on Article 7,8 enforced disappearance constitutes a unique and integrated series of acts that represent continuing violation of various Covenant rights. It has particular significance to Article 16, as recognised by a number of instruments: the Declaration on the Protection of All Persons from Enforced Disappearance, which acknowledges that enforced disappearance violates (among other rights) the right to recognition as a person before the law;9 the Rome Statute of the International Criminal Court, which includes as an important element in the definition of enforced disappearance the ‘intention of removing [persons arrested, detained or abducted] from the protection of the law for a prolonged period of time’;10 and the International Convention for the Protection of All Persons from Enforced Disappearance, which 7 Israel CCPR/C/79/Add.93 (1998) 21. 8 Chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, sections ‘Enforced Disappearance’, ‘Incommunicado Detention’. 9 Declaration on the Protection of All Persons from Enforced Disappearances, 12 February 1993, A/RES/47/133, Art. 1(2). 10 Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, adopted on 17 July 1998 by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Art. 7(2)(i).

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acknowledges that enforced disappearance places the victim outside the protection of the law.11 The Committee’s firmly established Article 16 jurisprudence since Grioua v. Algeria has been that intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognise them as a person before the law, if they had been in the hands of the State authorities when last seen, and if the efforts of relatives to obtain access to potentially effective remedies, including judicial remedies, have been systematically impeded. In such situations, disappeared persons are in practice deprived of their capacity to exercise entitlements under law, including all their other rights under the Covenant, and of access to any possible remedy as a direct consequence of the actions of the State.12 The ability of the family to seek redress is often impeded through intimidation,13 though it is usually sufficient to establish an Article 16 violation that the State has simply not provided adequate explanations concerning the fate of the victim following their disappearance.14 Incommunicado detention, with much of the character of enforced disappearance, may also be in violation of Article 16.15 The Committee does not often specify in its Concluding Observations that the operation of a law ‘violates’ a Covenant provision, though it did so in the case of Uruguay, when it considered that a law which effectively excluded the possibility of investigation into past human rights abuses and prevented effective remedies to victims ‘violates Article 16 . . . in respect of the disappeared persons and article 7 in respect of their family members’.16 In keeping with the proliferation of multiple similar findings by the Committee on individual petition the Committee frequently raises enforced disappearance under Article 16 in its periodic reviews,17 including when it occurs in the context of armed conflict.18

11 International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, adopted by General Assembly Resolution 61/177 on 12 January 2007, Art. 2. 12 Grioua v. Algeria, CCPR/C/90/D/1327/2004, 10 July 2007 [7.8]. For an example of recent restatements, see Millis v. Algeria, CCPR/C/122/D/2398/2014, 6 April 2018 [7.10]; Sharma, Paudel et al. v. Nepal, CCPR/C/122/D/2364/2014, 6 April 2018 [9.10]; Sharma v. Nepal, CCPR/ C/122/D/2265/2013, 6 April 2018 [10.9]; Bolakhe v. Nepal, CCPR/C/123/D/2658/2015, 19 July 2018 [7.18]. 13 E.g., Aboufaied v. Libya, CCPR/C/104/D/1782/2008, 21 March 2012 [7.10]. 14 E.g., Guezout v. Algeria, CCPR/C/105/D/1753/2008, 19 July 2012 [8.9]; Mezine v. Algeria, CCPR/C/106/D/1779/2008, 25 October 2012 [8.9]. 15 E.g., Benali v. Libya, CCPR/C/106/D/1805/2008, 1 November 2012 [6.3], [6.9]; Madoui v. Algeria, CCPR/C/94/D/1495/2006, 28 October 2008 [7.8]. 16 Uruguay CCPR/C/79/Add.90 (1998) 7. 17 E.g., Algeria CCPR/C/79/Add.95 (1998) 10; Algeria CCPR/C/DZA/CO/3 (2007) 12; Kuwait CCPR/CO/69/KWT (2000) 11; Sri Lanka CCPR/C/LKA/CO/5 (2014) 15. 18 E.g., Georgia CCPR/C/GEO/CO/4 (2014) 10; Nepal CCPR/C/NPL/CO/2 (2014) 5.

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Human Trafficking The recognition of legal personality is closely associated with the prohibition against slavery, because, among other reasons, slavery involves the refusal to recognise slaves as legal persons separate from their masters.19 Victims of human trafficking, like victims of forced disappearance, are removed from the protection of the law for a prolonged period of time, and are victims of Article 16 violation in the denial of their recognition as persons before the law.20 Those Declared Legally Dead One of the clearest instances of deprivation of Article 16 rights is where an individual who is alive is declared legally dead. This should in principle raise issues under Article 16. When commenting in Concluding Observations on enforced disappearance, when it is not known whether the victim is alive or dead, the Committee has addressed the requirement that families must have the victim declared dead in order to be eligible for compensation as a matter falling under Articles 2, 6 and 7,21 and in OP1 decisions it has treated this requirement primarily as a violation of Article 7 read alone and in conjunction with Article 2(3).22 However, the Committee treated as an Article 16 issue the situation in Egypt under the Muslim Code of Religious Law where Muslims who converted to another religion were considered legally dead.23 Articles 2, 18 and 26 would obviously also be applicable. Collective Punishment and Misuse The Libyan ‘Charter of Honour’ was of serious concern because it effectively authorised collective punishment for those found guilty of ‘collective crimes’. In El Hojouj Jum’a et al. v. Libya it was the subject of findings under Articles 7, 9, 12 and 17, but not Article 16, in spite of being invoked, and even though the Committee had previously condemned this form of punishment under Article 16 19 For discussion of the connection between recognition as a person before the law and slavery, see Margaret Brett, The Right to Recognition as a Person before the Law and the Capacity to Act under International Human Rights Law (Irish Centre for Human Rights National University of Ireland, 2012), at pp. 9 12. 20 For further coverage of human trafficking, see chapter on Article 24: Protection Required for Children, sections ‘Slavery, Servitude and Forced Labour: Article 8’, ‘Human Exploitation by Trafficking’. 21 E.g., Algeria CCPR/C/DZA/CO/3 (2007) 13; Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 12. 22 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘The Families of Victims of Violation’. 23 Egypt A/39/40 (1984) 301.

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when considering the third periodic report for Libya.24 This may reflect the Committee’s preference to keep to stronger findings where available. Once a person was arrested under the Charter, the members of that person’s family were deprived of public services and evicted from their homes, which were then demolished; furthermore, ‘those who carry out or encourage or give shelter to or defend any individual or group, activity or behaviour which can be described as treachery or heresy or corruption in any form are criminals’.25 Collective punishment was also a phenomenon in Argentina, affecting juveniles in custodial institutions.26 Also relevant in this context is the administrative detention of certain Lebanese in Israel, which raised Article 16 issues when it occurred without State security justification and detainees were used merely as ‘bargaining chips’ in order to promote negotiations in the release of detained Israeli soldiers or the bodies of deceased soldiers.27 Family Codes and Personal Laws General Comment 28 highlighted the importance of Article 16 to gender equality when the right to be recognised before the law was curtailed because of sex or marital status, as commonly occurs in certain cultural or religious traditions.28 Shortly before concluding that General Comment, among the situations examined in the periodic review process was the Family Code in Algeria. This prompted concerns under Articles 3, 16, 23 and 26 because a woman’s consent to her first marriage was generally mediated by a male guardian, who could deny the woman her choice of a husband. The Family Code provided that the husband was the head of the family, it allowed for polygamous marriage and it precluded a woman from marrying a non-Muslim.29 At that time the Committee also raised similar Covenant incompatibility with Sudan because customary arrangements meant that a woman’s consent to marriage was mediated by a guardian, and recourse had to be made to the courts to override any prohibition within the family on her choice of a husband. The absence of a legal provision on a minimum age for marriage was also an issue.30 More recently the Committee expressed its grave concern to Mali (under Articles 3, 16 and 23) at the continued existence of legislation discriminating against women in regard to marriage, divorce, inheritance and succession, and of 24 Libya CCPR/C/79/Add.101 (1998) 12 (deep concern that a law known as the ‘Charter of Honour’ authorises collective punishment for those found guilty of collective crimes (including ‘obstructing the people’s authority [and] damaging public and private institutions’, Arts 7, 9 and 16). 25 El Hojouj Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014 [2.3]. 26 E.g., Argentina CCPR/C/ARG/CO/4 (2010) 23 (concern over serious shortcomings in the operation of custodial institutions for children, including instances of collective punishment (Art. 24)). 27 Israel CCPR/C/79/Add.93 (1998) 21. 28 GC 28 [19]. 29 Algeria CCPR/C/79/Add.95 (1998) 13. 30 Sudan CCPR/C/79/Add.85 (1997) 11.

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discriminatory customary rules relating to property ownership. The practice of the levirat also still persisted, whereby a widow could be inherited by the deceased husband’s brother or cousin.31 The chapters on Articles 3 and 23 offer further coverage of personal status laws affecting marriage, family and inheritance, many of which raise parallel issues.32 Measures of Protection Required for Children Article 24 is the primary means of guaranteeing protection for children, as required by their status. Article 16 also plays a crucial role in that protection. The Committee’s decision in De Gallicchio v. Argentina is considered at length in the chapter on Article 24.33 It concerned various claims made at the behest of the grandmother of a child who was nine months old when her parents disappeared during the civic-military dictatorship in Argentina of the 1980s. The child was found at the age of seven in the care of a nurse who claimed to have taken care of her since birth. In domestic proceedings the author initially had no standing when contesting the child’s guardianship since only the parents and the legal guardian could directly participate. Because the courts had in fact endeavoured to establish the child’s identity and issued her identity papers, the Committee did not support the grandmother’s Article 16 claim, but it did make a closely related finding of a violation of Article 24 in the denial of standing to the grandmother, because this left her granddaughter without adequate representation, and deprived her of the protection to which she was entitled as a minor. Article 24 provided a more suitable basis for the decision than Article 16 given the efforts of the court, once seized, in support of the child’s ‘legal identity’, undoubtedly aided by the more glaring omission under Article 24 on the part of the State to take ‘affirmative action’ to grant prompt and effective relief.34 It is, however, questionable whether it was necessary to rule Article 16 out since recognition of a person before the law is broader than ‘legal identity’, and in any event it took ten years even for the child’s legal identity to be officially recognised. Article 16 requires recognition of every child as a person before the law, independently of their parents. Simalae Toala et al. v. New Zealand concerned a number of claims arising out of the status of Mr Toala as a prohibited migrant in 31 Mali CCPR/CO/77/MLI (2003) 10. 32 Chapters on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, sections ‘Other Forms of Violence against Women’; Article 23: Protection for the Family, section ‘Forced Marriage’. 33 Chapter on Article 24: Protection Required for Children, section ‘Recognition as a Person before the Law (Article 16)’. 34 De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [3.2], [10.2] [10.5]. For further discussion, see Alfred de Zeyas, ‘The CRC in Litigation under the ICCPR and CEDAW’, in Ton Liefaard and Jaap E. Doek (eds), Litigating the Rights of the Child: the UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer, 2015), p. 177, at p. 182.

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New Zealand because of his criminality. The Committee indicated that the treatment of his wife and daughter in deportation proceedings merely as ‘addenda’ to Mr Toala, rather than as persons in their own right, could raise issues under Article 16. However, the claim was inadmissible for failure to exhaust domestic remedies.35 Birth Registration In General Comment 17 the Committee observed that the right of every child in Article 24(2) to be registered immediately after birth is designed to promote recognition of the child’s legal personality, and has the purpose of reducing the danger of abduction, sale of or traffic in children, and similar practices.36 Birth registration is also an Article 16 issue, and the extent of the failure to effect birth registrations adequately is apparent in the scale of the Committee’s Concluding Observations which refer to Article 16. In some countries, such as Paraguay, a large proportion of children were unregistered and without an official birth certificate, a situation exacerbated by the fact that teenage mothers needed a court order to register their children.37 At particular risk in Panama and Honduras were indigenous children and those in rural areas,38 and in Côte d’Ivoire those in remote regions.39 Part of the problem in the Congo was that civil status registries were completely absent in some localities,40 and in response to a similar situation in Chad, the Committee suggested strengthened use of mobile registration units.41 It recommended that in Nepal the process of birth registration be free of charge,42 in Guatemala that it be tax exempt,43 and in Lebanon that it should not involve high costs or onerous documentation.44 Obstacles to birth registration in Mozambique affected children born outside maternity hospitals or whose parents were absent,45 and in Gambia those born outside marriage (an aspect of the stigmatisation faced by single mothers).46 There was concern at the proportion of children in Rwanda not registered among immigrants, refugees and asylum seekers, as well as at the penalties

35 Toala et al. v. New Zealand, CCPR/C/70/D/675/1995, 2 November 2000 [6.4], [10]. 36 GC 17 [7]. See chapter on Article 24: Protection Required for Children, section ‘Article 24(2): Every Child Shall be Registered Immediately after Birth and Shall Have a Name’. 37 Paraguay CCPR/C/PRY/CO/2 (2006) 22; Paraguay CCPR/C/PRY/CO/3 (2013) 26. 38 Honduras CCPR/C/HND/CO/1 (2006) 18; Panama CCPR/C/PAN/CO/3 (2008) 19. For issues in rural areas, see also Ghana CCPR/C/GHA/CO/1 (2016) 37; Madagascar CCPR/C/MDG/CO/4 (2017) 47; Gambia CCPR/C/GMB/CO/2 (2018) 47; Guatemala CCPR/C/GTM/CO/4 (2018) 34; Liberia CCPR/C/LBR/CO/1 (2018) 42. 39 Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 22. See also Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 43 (difficulties in access to the registration services in remote areas). 40 Congo CCPR/C/COD/CO/3 (2006) 25. 41 Chad CCPR/C/TCD/CO/1 (2009) 27. 42 Nepal CCPR/C/NPL/CO/2 (2014) 20. 43 Guatemala CCPR/C/GTM/CO/4 (2018) 34. 44 Lebanon CCPR/C/LBN/CO/3 (2018) 47. 45 Mozambique CCPR/C/MOZ/CO/1 (2013) 20. 46 Gambia CCPR/C/GMB/CO/2 (2018) 47.

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and fees for late registration which could have a deterrent effect on registration.47 There was apparent failure in Montenegro to issue birth certificates for particular minority groups (Roma, Ashkali and Egyptian children), and no comprehensive strategy to identify children without birth registration and/or identity documents, or to correct this retroactively.48 In Bosnia and Herzegovina there was a complete failure by health institutions to issue birth certificates for Roma children whose parents had no health insurance or other means of paying hospital fees, even though the certificates were needed for registering a child and for the child’s access to basic provision of health services and education.49 Failure to recognise the nationality of migrants may have far-reaching consequences. The retroactive application of migration legislation in the Dominican Republic, in which the recognition of the Dominican nationality of Dominican adults of Haitian origin was withdrawn because their parents were ‘in transit’ at the time of their birth, had serious consequences in terms of access to education, justice, employment, housing, health services, and their civil and political rights.50 Citizenship has been raised as an Article 16 matter, in the difficulties faced by minority groups (such as Roma and Serbs) in Croatia in obtaining citizenship.51 Even citizens who migrated internally in Albania but who were not registered at their new domicile faced problems of access to social welfare, education and other services.52 Legal Capacity of Those with Disabilities The Committee identified Article 16 as relevant to individuals with disabilities who were not recognised as persons before the law and were victims of forced sterilisation in Spain;53 and autistic children and psychotic adults in France who were affected by the practice of ‘packing’, in which they were allegedly wrapped in extremely cold, wet sheets for experimental purposes.54 Such treatment 47 Rwanda CCPR/C/RWA/CO/4 (2016) 43 (recommendation to ensure their retroactive birth registration and waive court fees for late registration). 48 Montenegro CCPR/C/MNE/CO/1 (2014) 17. 49 Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) 22; Bosnia and Herzegovina CCPR/C/BIH/ CO/2 (2012) 17. See also Serbia CCPR/C/SRB/CO/3 (2017) 14 (difficulties faced by internally displaced Roma in registering births and their place of residence and acquiring identification documents). 50 Dominican Republic CCPR/C/DOM/CO/5 (2012) 22. 51 Croatia CCPR/C/HRV/CO/2 (2009) 16. See also Ukraine CCPR/C/UKR/CO/7 (2013) 12 (pre valence of discrimination against the Roma minority, including difficulties encountered in access to personal documents). 52 Albania CCPR/CO/82/ALB 2 (2004) 17 (recommendation to take effective measures to ensure that all citizens are registered in order to facilitate and ensure their full access to social services (Arts 12 and 16)). 53 Spain CCPR/C/ESP/CO/6 (2015) 10. 54 France CCPR/C/FRA/C)/5 (2015) 20.

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inevitably also raises issues under Article 7, Articles 2 and 26 (discrimination on grounds of disability) and Article 24. There was also a reported tendency in Serbia to resort to the deprivation of legal capacity, including full legal capacity, in a way which disproportionally affected the rights of those with disabilities.55 Articles 9 and 16 had concurrent relevance to the practice of confinement in psychiatric hospitals in the Czech Republic based on mere ‘signs of mental illness’, where court review of admissions to psychiatric institutions did not sufficiently ensure respect for the views of the patient, and guardianship was sometimes assigned to attorneys who did not meet the patient.56 Article 25 was an issue in connection with Article 16 when electoral legislation in Angola prevented those with disabilities from fully exercising their electoral rights.57 Marriage Equality The Article 16 claim did not succeed in Joslin v. New Zealand in a challenge to New Zealand’s Marriage Act at a time when it did not allow for same-sex marriage. The authors argued that Article 16 aimed at permitting persons to assert their essential dignity, through their recognition as proper subjects of law, both as individuals and as members of a couple; and that the Marriage Act deprived them of access to a significant institution through which individuals acquire and exercise legal personality, by preventing them from acquiring the legal attributes and advantages flowing from marriage, including advantages in the law of adoption, succession, matrimonial property, family protection and evidence. The State contended that Article 16 could not be construed as creating an obligation to recognise particular forms of relationship in a given way, because the legal personality protected by Article 16 is of individuals rather than of a couple or other social grouping. For support, it relied on the travaux already mentioned, which indicate that Article 16 is aimed at preventing the denial to individuals of the ability to enjoy and enforce their legal rights, rather than dealing with an individual’s capacity to act. Article 16, it argued, did not therefore confer an entitlement to acquire rights consequent upon any particular legal status or to act in a particular way, such as entering into marriage, under law. The Committee focused instead on Article 23(2), which it interpreted as 55 Serbia CCPR/C/SRB/CO/3 (2017) 16. See also Moldova CCPR/C/MDA/CO/3 (2016) 23 (non consensual administration of psychiatric treatment to persons with disabilities on the grounds of mental or intellectual incapacity). 56 Czech Republic CCPR/C/CZE/CO/2 (2007) 14. See also USSR A/33/40 (1978) 443 (replying to questions under Art. 16 the representative said that according to civil codes a citizen having a mental illness did not have actual capacity; actual capacity of those who abused alcohol or narcotic drugs and endangered the material well being of their families could be restricted). 57 Angola CCPR/C/AGO/CO/1 (2013) 8. See also discussion on disability in chapter on Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service, section ‘Without Any of the Distinctions Mentioned in Article 2’.

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only recognising as marriage the union between a man and a woman, strongly influenced by the fact that it is a specific Covenant provision on the right to marriage, and the only one which defines a right by using the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. In the light of the scope of Article 23(2) it could not find that the refusal to provide for marriage between same-sex couples was in violation of Article 16, or Articles 17, 23 or 26.58 In the same month the Committee found the Article 9 and 16 claims in Wackenheim v. France inadmissible, for reasons which are clearer with the benefit of General Comment 35 on Article 9: ‘Liberty of person concerns freedom from confinement of the body, not a general freedom of action’.59 Official Recognition of Gender When reviewing Ireland’s third periodic report the Committee raised as a concern with reference to Articles 2, 16, 17, 23 and 26 the fact that Ireland had not recognised a change of gender by permitting birth certificates to be issued for transgender persons.60 However, Article 16 did not feature in the Committee’s consideration in two recent decisions against Australia. The first was G v. Australia concerning a male to female transgender person who successfully claimed a violation of Article 17 in Australia’s refusal to change her sex on her birth certificate, unless she divorced from her spouse, even though the two were in a happy relationship. The State’s purpose was to ensure consistency with Australia’s Marriage Act which defined marriage as being between a man and a woman.61 The second was C v. Australia when the Committee found a violation of Article 17 in the denial of a divorce order in Australia dissolving a same-sex marriage solemnised in Canada, because this would require the relationship to be recognised as a ‘marriage’ inconsistently with the Marriage Act.62

I M P L E M E N TAT I O N Article 16 states that ‘everyone’ shall have the right to recognition ‘everywhere’ as a person before the law. During Third Committee debates the British delegation agitated the question of the appropriateness of requiring recognition 58 Joslin et al. v. New Zealand, CCPR/C/75/D/902/1999, 17 July 2002 [3.5], [4.6], [8.2] [8.3]. 59 Wackenheim v. France, CCPR/C/75/D/854/1999, 15 July 2002 [6.3], referring to General Comment No. 35, Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/C/GC/ 35 [3]. 60 Ireland CCPR/C/IRL/CO/3 (2008) 8. See also Serbia CCPR/C/SRB/CO/3 (2017) 12 (concern that the legal consequences of adjusting or changing one’s sex were not regulated by any legal framework and there was no right to a preferred gender in the absence of surgical intervention). 61 G v. Australia, CCPR/C/119/D/2172/2012, 17 March 2017. 62 C v. Australia, CCPR/C/119/D/2216/2012, 28 March 2017.

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‘everywhere’, given that under Article 2 Covenant rights were already to apply to all individuals within the territory and subject to the jurisdiction of the respective Parties (and Parties could only accept responsibility for implementing the Covenant within their respective jurisdictions). It was generally considered that the word ‘everywhere’ was not superfluous, and a preference for maintaining consistency with Article 6 of the Universal Declaration prevailed.63 As to the meaning of ‘everyone’, Nowak has suggested that in principle the capacity of human beings to be persons before the law begins with birth and ends with death, but that since the unborn child is endowed with certain rights in many legal systems, the right to recognition of legal personality also extends to the foetus, since it is not possible to infer the contrary either from the wording of Article 16 or the travaux.64 The Committee raised this question in reviews of State reports in the early 1980s, seeking clarification from countries where recognition under Article 16 began at birth, or conception.65 When assessing the extent of implementation the Committee made the observation to Gambia that Article 16 was among a number of rights which did not appear to have a counterpart in the domestic legislation which offered human rights protection,66 suggesting that Article 16 warrants individual implementation. Article 16 is listed among those rights in Article 4(2) which are non-derogable. The Committee observed that the constitutional grounds available in Croatia in a state of emergency were broader than Article 4 allows in relation to Article 16;67 it was concerned at the lack of a clear provision in Belize legislation to dispel any doubts that non-derogable rights included those under Article 16;68 and since legislation in Madagascar did not explicitly prohibit derogation from Article 16 (and other nonderogable provisions), it recommended amendment to bring it in line with Article 4.69 The Committee was also concerned about the general limitation in Uzbekistan on the enjoyment of human rights, which gave rise to apprehension that rights could be restricted at the discretion of the State.70

C O N C L US I O N The potential sphere of operation of Article 16 is clearer in the Committee’s reporting process than in its OP1 jurisprudence, which is comparatively limited. 63 A/4625 (1960), p. 9 [26]. 64 Nowak, CCPR Commentary, p. 372. 65 Portugal A/36/40 (1981) 306 (complete and live birth); Morocco A/37/40 (1982) 145 (whether the recognition began at birth or at conception); Gambia A/39/40 (1984) 336 (was life deemed to begin at conception). 66 Gambia CCPR/CO/75/GMB (2002) 4 (Arts 10, 11, 13, 16 and 20 do not appear to have equivalent provisions in the Constitution). See also St Vincent and the Grenadines A/45/40 (1990) 257 (in connection with Art. 16 members of the Committee wished to know how the rights of all persons to recognition before the law was guaranteed in the legal system of the country). 67 Croatia CCPR/CO/71/HRV (2001) 9. 68 Belize CCPR/C/BLZ/CO/1 (2013) 14. 69 Madagascar CCPR/C/MDG/CO/4 (2017) 10. 70 Uzbekistan CCPR/CO/71/UZB (2001) 17.

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The Committee identifies among the most vulnerable, and in need of Article 16 protection, those subjected to enforced disappearance or incommunicado detention; victims of human trafficking; children (requiring registration at birth, especially those from indigenous, rural or remote communities); women discriminated against in family codes and personal laws; and the intellectually disabled for whom an important aspect of protection is judicial oversight of their detention and treatment, and adequate representation of their interests. The Committee’s hesitance in supporting Article 16 in De Gallicchio v. Argentina may be attributed to the fact it was decided in 1995, when Article 16 had a relatively low profile and an easier finding under Article 24 was available, especially when the claim concerned a State failure to take clearly identified positive action. It is less clear why the Committee refrained from making an Article 16 finding in El Hojouj Jum’a et al. v. Libya in 2014 when it had unequivocally condemned, under Article 16, the Libyan ‘Charter of Honour’ in Libya’s third periodic review, though such a finding may have appeared superfluous when there were already clearly established violations of Articles 7, 9, 12 and 17. If Article 16 is to have real rather than decorative value its consistent application where relevant would be welcomed.

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Article 17: Privacy, Home, Correspondence; Honour and Reputation

INTRODUCTION ISSUES OF LEGALITY ‘ARBITRARINESS’ KEY ELEMENTS OF ARTICLE 17 IMPLEMENTATION CONCLUSION

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Covenant Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Comparable Provisions in Other International Instruments European Convention: Article 8. American Convention on Human Rights: Article 11. African Charter on Human and Peoples’ Rights: no counterpart.

INTRODUCTION Scope Article 17 is a short but versatile provision, capable of answering a broad diversity of unlawful or arbitrary incursions into privacy, home, family and correspondence, and unlawful attacks on reputation, including many instances which could not have been specifically foreseen by its drafters.1 To illustrate the scope of Article 17, among other things, it requires that the storage and use of personal information by the State (including telephone communications, correspondence, DNA and medical records) be confined and 1 Oliver Diggelmann and Maria Nicole Cleis consider the drafting origins of the right to privacy and how its potential was dramatically underestimated, in ‘How the Right to Privacy Became a Human Right’, (2014) 14 HRLR, p. 441.

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suitably safeguarded; it entitles anyone to know what personal data is officially stored about them and to be given the opportunity to correct it; it curbs defamatory statements, even in some circumstances the false attribution of authorship; it puts constraints on intrusive questioning of a rape victim about their sexual history; it protects the home against search, forced entry and demolition, as well as seizure of personal effects; it may be invoked to prevent the breakup of the family by deportation; it supports indicia of self-identity (such as one’s name or gender); and it may be used to resist forcible medical procedures, as well as to secure access to certain medical procedures. It also requires access to certain information about others, entitling families of those who have been disappeared to know the whereabouts of the victim or their remains, and relatives of prisoners to be informed if death of the prisoner is imminent.2 Interaction between Article 17 and Other Covenant Provisions Article 17 interacts supportively with other Covenant rights, particularly Article 7, to protect against forced sterilisation, non-consensual medical or scientific experimentation,3 or the denial of abortion services in certain circumstance4 (additional protection is required by Article 24 for minors who, for example, are victims of rape).5 Article 17 also upholds autonomy in personal relationships and overlaps with Articles 2, 3 and 26 in various instances of status-based discrimination.6 The destruction of the family home may concurrently actuate the guarantees in Articles 7 and 17,7 and also Article 27 when the home belongs to members of a minority.8 Article 17 claims may occur in combination with those under Article 23 where attacks which occur at home at the hands of officials simultaneously result in the loss of home and integrity of family life; in some circumstances this may be accompanied by loss of personal security (Article 9) or may endanger life (Article 6).9 2 For a comparative analysis across national systems, see Dawn Oliver and Jörg Fedtke, Human Rights and the Private Sphere: a Comparative Study (Routledge Cavendish, 2007); and across regional systems Lucas Lixinski, ‘Comparative International Human Rights Law: An Analysis of the Right to Private and Family Life Across Human Rights “Jurisdictions”’, (2014) 32(2) Nord. J. Hum. Rts, p. 99. 3 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Medical or Scientific Experimentation’. 4 L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, March 2011; Mellet v. Ireland, CCPR/C/116/D/ 2324/2013, 31 March 2016. 5 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003, 24 October 2005 [6.3], [6.5]. 6 G v. Australia, CCPR/C/119/D/2172/2012, 2 December 2017. 7 Aouali et al. v. Algeria, CCPR/C/109/D/1884/2009, 18 October 2013 (violation of Arts 7 and 17; Art. 23 not considered in the light of other findings). 8 Georgopoulou et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010 (violation of Arts 17, 23 and 27). 9 See the circumstances of the claim in Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011 (violation of Arts 6, 7 and 17 alone, and of each read in conjunction with Art. 23(1)).

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Articles 17 and 23 also importantly coincide in immigration control measures which impact directly on family members where there is a family separation, and may additionally give rise to issues under Article 9 if they involve mandatory or prolonged detention, and also Article 24 if this leaves a child without requisite protection.10 Restrictions on freedom of movement may also coincide with issues under Article 17, for example, when a passport is confiscated and prevents family reunification, in violation of Articles 12, 17, 23 and 24.11 Article 14 may support Article 17 when arbitrary interference occurs because of the compound effect of judicial (and administrative) failings.12 Article 18 has application when a change of name is required for religious reasons,13 and Article 19 in instances of compulsion to reveal political and other opinions.14 Chapter Outline This chapter will first address issues of ‘unlawfulness’ and ‘arbitrariness’ which condition the violation of Article 17 (save that unlawfulness is alone relevant to attacks on honour and reputation), and will then consider the application of Article 17 to the separate elements of privacy, family, home, correspondence, honour and reputation (in order of their mention in Article 17).

ISSUES OF LEGALITY ‘Unlawful’ Interference; ‘Unlawful’ Attacks Article 17(1) protects against ‘unlawful’ interference with privacy, family, home or correspondence, and ‘unlawful attacks’ on honour and reputation. According to General Comment 16 this means that no interference can take place except in cases envisaged by the law, and that interference authorised by States can occur only on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.15

10 See sections ‘Objective Justification in the Light of the Reasons for Interference and the Degree of Hardship’ and ‘Deportation/Refusal to Allow Re entry’, this chapter, below. 11 El Dernawi v. Libya, CCPR/C/90/D/1143/2002, 20 July 2007 [6.2] [6.3] (family separation following confiscation of the passport belonging to the author’s wife prevented her move to Switzerland to join the author there after he had been granted refugee status (arbitrary inter ference with family life with respect to the author, his wife and six children). See also chapter on Article 23: Protection for the Family, section ‘Family Separation and Reunification’. 12 Gonzalez v. Guyana, CCPR/C/98/D/1246/2004, 25 March 2010. 13 Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994. 14 Alger v. Australia, CCPR/C/120/D/2237/2013, 13 July 2017 (inadmissible Art. 17 claim because an invitation to demonstrate eligibility for an exemption from voting did not require such disclosure). 15 General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 (GC 16) [3].

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Van Hulst v. Netherlands clarified that an interference is not ‘unlawful’, within the meaning of Article 17(1), ‘if it complies with the relevant domestic law, as interpreted by the national courts’. In the light of the court’s interpretation of legislation which authorised interception and recording of the author’s privileged telephone conversations with his lawyer the interference (in not destroying the information) was not ‘unlawful’.16 Unlawfulness was, however, established, as discussed in more detail below, in Bulgakov v. Ukraine, in an official name change contrary to domestic laws;17 Andrei Sannikov v. Belarus, in the unauthorised phone tapping of an election candidate;18 A.S. v. Nepal, in police mistreatment by subjecting a family to repeated threats and harassment, and violence towards some family members in the presence of others;19 Coronel et al. v. Colombia, in raids on homes without prescribed judicial warrants;20 Petr Gatilov v. Russian Federation, in eviction in a manner contrary to domestic legislation; and El Hojouj Jum’a et al. v. Libya, in various acts of reprisal (including eviction and demolition of homes) under the Libyan ‘Charter of Honour’.21 ‘Protection of the Law against Such Interference or Attacks’ Article 17(2) guarantees ‘protection of the law’ against interference with privacy, family, home or correspondence, or attacks on honour and reputation. This would not be satisfied by a legislative provision in very general terms which did not in itself provide satisfactory legal safeguards against arbitrary application.22 Protection also extends to enforcement. The domestic court failed to secure for the author in L.P. v. Czech Republic regular contact with his son because fines for failure to respect preliminary orders regulating access were neither fully enforced nor replaced with other measures aimed at ensuring his rights. His Article 17 rights did not receive ‘effective protection’.23

16 17

18 19 20 21 22 23

For discussion of comparable requirements under Art. 9, see chapter on Article 9: Liberty and Security, section ‘Deprivation of Liberty Must be Lawful’. Van Hulst v. Netherlands, CCPR/C/82/D/903/1999, 1 November 2004 [7.4] [7.5]. Bulgakov v. Ukraine, CCPR/C/106/D/1803/2008, 29 October 2012 [7.3]. Cf. Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [10.3], where denial of a request to change surnames was based on the law and regulations in force in the Netherlands, and could therefore not be regarded as unlawful. Sannikov v. Belarus, CCPR/C/122/D/2212/201, 6 April 2018 [6.9]. A.S. v. Nepal, CCPR/C/115/D/2077/2011, 6 November 2015 [8.5]. Coronel et al. v. Colombia, CCPR/C/76/D/778/1997, 24 October 2002 [9.7]. Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014 [6.7]. Pinkney v. Canada, CCPR/C/OP/1 at 95, 29 October 1981 [34] (legislation in general terms on the control and censorship of prisoners’ correspondence). L.P. v. Czech Republic, Communication No. 946/2000, A/57/40 at 294, 25 July 2002 [7.4] (the author’s rights under Art. 17, in conjunction with Art. 2(1) and (2), did not receive effective protection).

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When examining State reports the Committee has shown a keen interest in the laws and regulations that authorise interferences with private life, conscious of the need for them to specify in detail the precise circumstances in which interferences are permitted, and that a decision to effect an authorised interference must be made only by the authority designated under the law, and on a case-by-case basis.24 It has asked States to provide information on the authorities competent to authorise interference, and those which superintend ‘strict regard for the law’, including details of available complaint channels for those whose rights are violated, the complaints lodged, conclusions reached as a result and remedies provided.25 This is partly attributable to the regulatory-rich context in which privacy is at risk of encroachment in sectors such as banking, insurance, telecommunications, IT, the military and police, among many others, in which private personal information is amassed in day-to-day operations. Since Article 17 does not particularise the grounds of limitation, as Articles 12, 18, 19, 21 and 22 do, greater Committee scrutiny of relevant laws may be thought necessary to ensure they offer little scope for arbitrariness. The importance of proper domestic laws to protect Article 17 rights led the Committee to complain that periodic reports under Article 40 insufficiently addressed domestic legislation, bearing in mind that ‘it is precisely in State legislation above all that provision must be made for the protection of the right,26 and it has taken issue with countries with insufficiently clear legislation.27 Article 17 as a Basis for Impugning the Law In Toonen v. Australia the mere existence of discriminatory legislation in Tasmania criminalising certain consensual same-sex conduct between men (but not between women) in private was central to the Committee’s finding of interference: the criminal legislation continuously and directly interfered with the author’s privacy since there was no guarantee that action would not be taken in the future. Arbitrariness was disclosed by the fact that similar laws had been repealed throughout Australia except in Tasmania, and those in Tasmania were not enforced, which showed they were not essential for any purpose claimed for 24 GC 16 [7] [8]. 25 GC 16 [6]. 26 GC 16 [2]. 27 E.g., Russian Federation CCPR/C/79/Add.54 (1995) 19, 38 (legislation should be passed on the protection of privacy since mechanisms to intrude into private telephone communication existed without clear legislation setting out the conditions for legitimate interferences with privacy, and safeguards against unlawful interferences); Sri Lanka CCPR/C/LKA/CO/5 (2014) 12 (recom mendation to adopt national legislation that clearly and narrowly defined the exceptional condi tions under which former combatants could be subject to monitoring and surveillance); Italy CCPR/C/ITA/CO/6 (2017) 36 (concern about reports that intelligence agencies were intercepting personal communications and employing hacking techniques without explicit statutory author isation or clearly defined safeguards from abuse); Turkmenistan CCPR/C/TKM/CO/2 (2017) 36 (concern about the lack of a clear legal framework regulating surveillance activities, including by the intelligence services).

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them.28 In Aumeeruddy-Cziffra and Others v. Mauritius the mischief was similarly the legislation itself. The fact that it allowed for possible deportation of the authors’ foreign husbands and created a precarious residence situation for them was sufficient to constitute interference with family life without any further application of the law.29 Challenges to the law may also be mounted under Article 17(2) where it fails to provide satisfactory legal safeguards against arbitrary application.30

‘ ARBITRARINESS ’ ‘Reasonable in the Particular Circumstances’ As already noted, compliance with the provisions, aims and objectives of the Covenant is required of any law that is to provide the basis of a justified interference.31 Covenant-accordance is also a stipulation of any interference, to avoid it being considered ‘arbitrary’.32 In its OP1 decision-making the Committee has consistently applied the General Comment yardstick, that the ‘concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’.33 The ‘reasonableness’ requirement underwent some interpretive refinement in Toonen v. Australia ‘to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’. The clearest indication that the criminal provisions were not essential was that even in the only remaining constituent state in Australia where they existed they were not being enforced.34

28 Toonen v. Australia, CCPR/C/50/D/488/1992 (1994), 31 March 1994 [8.2], [8.6]. Mr Bertil Wennergren raised the issue of lawfulness, but he accepted that legislation was not strictly speaking ‘unlawful’ in spite of its obvious Covenant incompatibility, which he demonstrated through the combination of Art. 26 (incompatibility with the right to equality before the law) and Art. 5(1), in support of his conclusion that it interfered with privacy to an unjustifiable extent. Cf. GC 16 [3], [4]. 29 Aumeeruddy Cziffra and Others v. Mauritius, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(i)3]. Note also at [9.2(b)2(i)4] that since the situation resulted from the legislation itself, there could be no question of regarding the interference as ‘unlawful’ and the Committee moved to the issue of arbitrariness. Because the legislation discriminated on the basis of gender the Committee based its findings on Arts 2(1) and 3, in conjunction with Art. 17(1). 30 Pinkney v. Canada, Communication No. 27/1978, CCPR/C/OP/1 at 95, 29 October 1981 [34]. 31 GC 16 [3]; see, this chapter, section ‘“Unlawful” Interference; “Unlawful” Attacks’, above. 32 GC 16 [4]. 33 Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, 1 November 2004 [11.7]; Gonzalez v. Guyana, CCPR/C/98/D/1246/2004, 25 March 2010 [14.3]; Warsame v. Canada, CCPR/C/ 102/D/1959/2010, 21 July 2011 [8.8]; Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.2]. 34 Toonen v. Australia, CCPR/C/50/D/488/1992 (1994), 31 March 1994 [8.3] [8.6].

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The unreasonableness of the interference in Gonzalez v. Guyana was evident in the manner in which State authorities dealt with the request for citizenship by the author’s husband. He was a Cuban doctor who worked in Guyana under a medical cooperation agreement between the two countries. He had married a Guyanese citizen, but his application for citizenship met obstacles because authorities feared it might set a precedent which could upset the medical cooperation between both countries. The relevant ministry advised him that his application for permanent residence and citizenship ‘cannot be processed at this time’. The court’s review of the ministerial response took twenty-eight months. The combined effect of administrative and judicial delays was unreasonable, because it meant the author and his wife would be separated.35 In Coeriel and Aurik v. Netherlands unreasonableness was apparent on the face of the State’s own decision. The authors were denied their request for formal recognition of a change in their surnames to Hindu names, which they wanted as part of their Hindu practice and to enable them to become priests (‘pandits’) in India. The Committee’s comment that ‘the request to have one’s change of name recognised can only be refused on grounds that are reasonable in the specific circumstances of the case’ augured its conclusion that the grounds in question were not ‘reasonable’ when they were, that the change was not essential to pursue the authors’ studies, the names had religious connotations and were not ‘Dutch sounding’.36 Disproportionate Impact of an Interference to its Objectives An important aspect of the case-by-case assessment required of States under Article 17 is that an individualised appraisal is necessary of the impact of any proposed measure and, in the light of this, of its proportionality. This was given more prominence in Raihman v. Latvia than in Coeriel and Aurik sixteen years earlier. The author was a member of the Jewish and Russian-speaking minorities and all his life went by the given and family name ‘Leonid Raihman’. His surname was Jewish and was used continuously in his lineage at least three generations before him, and by his son after him. These names were registered to him by Soviet Union authorities and used by him for forty years, but at the time he was issued a Latvian passport and when he received Latvian citizenship, without his consent his names were changed to the non-Russian, non-Jewish form of ‘Leonīds Raihmans’. This entailed major inconveniences for him, including a feeling of deprivation and arbitrariness, since his surname looked and sounded odd in Latvian form. The Committee showed some sensitivity to the difficulties to 35 Gonzalez v. Guyana, CCPR/C/98/D/1246/2004, 25 March 2010 [14.2] [14.4]. Cf. Mahmoud Walid Nakrash and Liu Qifen v. Sweden, CCPR/C/94/D/1540/2007, 30 October 2008 [7.4] (Art. 17 claim failed because the family could reunite in either Syria, China or a third country). 36 Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [10.4] [10.5].

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which the Latvian language was exposed during Soviet rule, and accepted as legitimate the State objective of protecting the Latvian language and its proper functioning as an integral system (including through integrity of its grammatical system). But it found that ‘the interference entailed for the author presents major inconveniences, which are not reasonable, given the fact that they are not proportionate to the objective sought . . . the forceful addition of a declinable ending to a surname, which has been used in its original form for decades, and which modifies its phonic pronunciation, is an intrusive measure, which is not proportionate to the aim of protecting the official State language’.37 In some circumstances the scope for minimising the impact of an interference may be constrained by the need to safeguard certain other Covenant rights. The question in Van Hulst v. Netherlands was whether the interception and recording of the author’s telephone conversations with his lawyer, in the course of a preliminary inquiry against that lawyer, were ‘arbitrary or reasonable in the circumstances of the case’, recalling from Toonen that the requirement of reasonableness implies that any interference with privacy must be proportionate to the end sought, and must be necessary in the circumstances of any given case. In criminal proceedings against the author the prosecution relied on a number of records of the phone calls between the author and his lawyer. The author argued before the Committee that clients could no longer rely on the confidentiality of client–lawyer communications if there was a risk that their content may be intercepted and used against them, and when a client could not know whether their lawyer was suspected of having committed a criminal offence. The Committee weighed this together with the need for States to take effective measures to prevent and investigate criminal offences, and it decided that this interference did not disproportionally affect the author’s right to communicate with his lawyer. Respect for confidentiality was shown in distinguishing these conversations (which were removed from the prosecution evidence) from other tapped conversations, which were not. Also, the authorities were not bound to destroy the records of client–lawyer conversations immediately if, as here, they were kept (separately from the case file) for possible inspection by the defence, given that the right to privacy implies that every individual should have the right to request rectification or elimination of incorrect personal data in files controlled by public authorities.38 The storage of the recordings could not be regarded as unreasonable.39

37 Raihman v. Latvia, CCPR/C/100/D/1621/2007, 28 October 2010 [8.3]. 38 GC 16 [10]; see, this chapter, section ‘Privacy of Information’, below. 39 Van Hulst v. Netherlands, CCPR/C/82/D/903/1999, 1 November 2004 [7.6] [7.9]: ‘arbitrariness within the meaning of Art. 17 is not confined to procedural arbitrariness, but extends to the reasonableness of the interference with the person’s rights under Art. 17 and its compatibility with the purposes, aims and objectives of the Covenant’. See also Netherlands CCPR/C/NLD/ CO/4 (2009) 14 (recordings of telephone conversations involving professionals who have a confidentiality duty were not safeguarded in a manner that preserved lawyer client confidentiality).

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Objective Justification in the Light of the Reasons for Interference and the Degree of Hardship Interference with the family commonly occurs by deportation, including in consequence of a negative refugee determination or criminality in breach of visa conditions. The Committee has generated a number of principles in that particular context for determining arbitrariness. In the comparatively early Article 17 decision in Canepa v. Canada the Committee explained that ‘arbitrariness extends to the reasonableness of the interference . . . and its compatibility with the purposes, aims and objectives of the Covenant’, noting also that there could be an arbitrary interference in the separation of an individual from their family, if the effects on that person were disproportionate to the objectives of removal.40 The interference in deporting the author in that instance was not arbitrary: he had an almost continuous record of convictions from the age of 17 to his removal from Canada aged 31, he had no spouse or children in Canada, but he did have extended family in Italy, his deportation would not irreparably sever his ties with his remaining family in Canada (who in any event were not able to provide much help or guidance to him), there was no financial dependence involved in his family ties, and the separation from his family was not likely to lead to a deterioration in his situation. Although the approach which emphasises the need for proportionality to objectives pursued continues,41 Canepa itself was concerned about the impact of the interference on the author. However, it is clear that any assessment of arbitrariness will need to extend to the impact on other affected family members in claims under Articles 17 and 23 since both concern guarantees which protect the family.42 In Bakhtiyari et al. v. Australia the impact of splitting a family by deporting only the father was obvious and decisive. The family was from Afghanistan but became separated in Pakistan while being smuggled to Australia. The father arrived by boat alone, and was granted a protection visa. There were no plans to deport him while he pursued domestic immigration proceedings. However, the authorities decided to remove his wife and children, who arrived by boat after him, as soon as reasonably practicable. The Committee found this decision, while the outcome of his proceedings were yet to be determined, was in violation of both Articles 17(1) and 23(1), taking account of the 40 Canepa v. Canada, CCPR/C/59/D/558/1993, 3 April 1997 [11.4]. 41 E.g., Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.7]; Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.7]. See also W.M.G. v. Canada, CCPR/C/116/D/ 2060/2011, 11 March 2016 [7.6]. Note the reference to the lack of ‘irreparable harm’ as the basis for the inadmissibility decision in K.E.R. v. Canada, CCPR/C/120/D/2196/2012, 28 July 2017 [7.7] (failure to provide any arguments that would enable the Committee to conclude that the author’s own and her family’s removal to the United States would amount to irreparable harm). 42 Claims based on interference with the family, whether under Article 17 or 23, are more likely to succeed if made on behalf of all members of the family: Byahuranga v. Denmark, CCPR/C/82/D/ 1222/2003, 1 November 2004 [11.7] [11.9].

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number and age of the children, including a newborn, the traumatic experiences of his wife and the children in long-term immigration detention for well over two and a half years in breach of Article 9, the difficulties that she and her children would face if returned to Pakistan without her husband, and the absence of arguments to justify removal in these circumstances.43 A number of decisions apply a test of ‘objective justification’ when family separation results from deportation. The question posed in Madafferi v. Australia was whether or not the specific interference with family life was ‘objectively justified’ in the light of the reasons for removal and, the degree of hardship the family and its members would encounter. The Committee did not refer specifically to its commonly used General Comment 16 standard, although it is clearer from similar cases that objective justification is an aspect of the requirement that interference should be reasonable in the particular circumstances.44 The father of the Madafferi family had arrived in Australia on a tourist visa, he had subsequently married an Australian but was then refused a spouse visa. The reasons for removing him were his illegal presence in Australia, his alleged dishonest dealings with the immigration authorities, and his ‘bad character’ as a result of criminal conduct in Italy some twenty years previously. Against this the Committee considered the degree of hardship suffered by the family, which had been together for fourteen years. If his wife and children were to emigrate to Italy to avoid family separation they would have to live in a country they did not know and whose language the children did not speak, in an environment alien to them. They would also have to take care of a husband and father whose mental health had been seriously troubled, in large part as a result of his being held in an Australian detention centre. In making its Article 17 finding of arbitrary interference with the family the Committee considered the State’s reasons for removing him were ‘not pressing enough’.45

43 Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.6]. 44 E.g., Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, 1 November 2004 [11.7]: ‘[The Committee] recalls that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be reasonable in the particular circumstances [footnoting GC 16 [4]]. In this regard . . . the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the significance of the State party’s reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal [footnoting Madafferi v. Australia].’ The nature and severity of the author’s offences were sufficient under Art. 17 to justify expulsion to Uganda. 45 Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.8] (emphasis added). The removal of Mr Madafferi would, if implemented, constitute arbitrary interference with the family, contrary to Art. 17(1) in conjunction with Art. 23 in respect of all of the authors, and a violation of Art. 24(1) in relation to the four minor children due to a failure to provide them with the necessary measures of protection as minors. For similar Art. 24 finding, see Winata and Li v. Australia, CCPR/C/72/D/930/2000, 26 July 2001 [7.3].

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Al-Gertani v. Bosnia and Herzegovina cited the same test (whether the interference can be objectively justified in the light of the reasons and the degree of hardship), but that decision suggests the Committee may have edged towards a higher standard when requiring ‘serious and objective’ reasons for the interference. The background was that the author claimed to be affiliated (through his mother’s family) with Saddam Hussein’s regime, his brother was a member of the Republican Guard, and when Iraq occupied Kuwait he deserted the army (for which he was sentenced to death in absentia). He fled ultimately to Bosnia and Herzegovina where he settled with his wife (a national) and three minor children. He acquired citizenship under a false name and when he subsequently revealed his true identity to the authorities they revoked his citizenship. The Committee criticised the domestic courts for merely referring to the fact that the administrative authorities considered him a threat to national security without properly considering the adequacy of that assessment. Such were the security restrictions that the courts themselves could not be informed of the basis on which the assessment was based, and the author was not given the reasons or evidence that led to that conclusion. He could not therefore adequately address the security threat he was supposed to represent given the effects of his removal on his family situation. If his wife and children moved to Iraq to avoid a family separation they would have to live in a country whose culture and language were unfamiliar (they did not speak Arabic, they had no ties whatsoever to the Iraqi culture, and Iraq then faced a deplorable security situation). In the absence of a clear explanation as to why he constituted a security threat the Committee found that the interference with his family life, if he was deported, was not justified by ‘serious and objective reasons’, and would be in violation of both Articles 17 and 23.46 Since the Committee mentioned the ‘objectively justified’ test in the preamble to its finding the apparently stricter language may simply have been to stress that the State had not risen to the level of proof required to match its assertions of serious security risk. Serious and persistent criminal conduct lay behind the Committee’s assessment of arbitrariness more recently in Nystrom v. Australia, yet the impact of deportation on the author outweighed the State’s concerns about his criminality. The official aim on any reckoning was unusual: to protect the Australian community (by preventing the commission of further crimes) and to ‘address the Australian community’s expectations’. Until Nystrom the Committee seemed to give greater weight to the interests of States in preventing crime.47 The author had lived in Australia all his life since he was 27 days old, and held a permanent visa. Because 46 Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013 [10.8] [10.9]. 47 A particularly narrow approach was taken in early cases such as Stewart v. Canada, CCPR/C/58/ D/538/1993, 1 November 1996, in which the Committee found [at 12.10] no violation (under Arts 17 or 23) given ample opportunity the author had to present evidence of his family

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of his substantial criminal record his visa was cancelled when he was 29 years old and he was deported to Sweden, where he was born. The Committee took account of his close relationship with his mother and sister in Australia (despite significant time spent in detention and in State care), the complete disruption of his family ties caused by his deportation because his Australian family could not afford to travel to see him in Sweden, the absence of any close family in Sweden, the fact that his rehabilitation efforts had yielded some success in reducing his alcohol addiction (which gave rise to his criminal behaviour) and that he was steadily employed when his visa was cancelled. The Committee also noticed the inordinate delays in the ministerial decision to deport him, fourteen years after his conviction for rape and intentionally causing injury (nine years after his release from prison on those charges), seven years after an armed robbery conviction (and a number of years after his prison release). The deportation decision had irreparable consequences on him and it was disproportionate to the legitimate aim of preventing the commission of further crimes, especially given the lapse of time between their commission and the deportation decision. It therefore violated Articles 17 and 23(1). The Committee rejected the parallel claims by his mother and sister since they were not uprooted from their family environment in Australia.48 The Committee reached a similar conclusion a few days later in Warsame v. Canada. The author’s permanent residency status was revoked because he had been convicted of serious offences. His criminal record began when he was 15, and included a conviction for an assault on a 60-year-old woman and a repeated stabbing with a screwdriver of a store clerk in the context of a robbery. Against this the Committee balanced a number of factors: the close relationship of the author to his sisters and his mother, whom he was planning to support since she had a mental illness; that he did not have any family in Somalia where he was to be sent; and that his deportation would lead to a complete disruption of his family ties due to the impossibility of his family travelling to Somalia. He was not born in Somalia and had never lived there, and he had no family there. Since the age of 4 he had lived in Canada, where his mother and sisters lived, and intense ties with them would be irreparably severed. It would also be impossible for him to apply for a visitor’s visa for a significant period of time to visit his family in Canada. The interference with his family life by deportation would therefore be disproportionate to the legitimate aim of preventing the commission of further crimes, in violation of both Articles 17 and 23(1). Its effects would be disproportionate to the objectives of his removal.49

connections in domestic proceedings, and the fact that the resulting decision, which was reasoned, gave due consideration to his family connections. 48 Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.9] [7.10], [7.12]. 49 Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.9] [8.10]. Cf. A.B. v. Canada, CCPR/C/117/D/2387/2014, 15 July 2016 [8.10] [8.11] (the interference with family life from

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Inappropriateness, Injustice, Lack of Predictability and Due Process of Law In assessing the Article 9 aspects of the author’s immigration detention in AlGertani the Committee referred to its Article 9 jurisprudence that ‘arbitrariness’ was to be interpreted to include elements of inappropriateness, injustice, lack of predictability, and due process of law. The formula did not feature in its Article 17 analysis, which focused on whether his detention and possible deportation constituted arbitrary and unlawful interference with his privacy and family life. However, a factor common to both Article 9 and 17 findings was the failure to explain the basis of the author’s security assessment or to provide the reasons or evidence that led to that conclusion he was threat to national security.50 Less than six months later, in Ilyasov v. Kazakhstan, those same elements which in Al-Gertani were relevant to Article 9, were applied by the Committee under Article 17 to determine arbitrariness even though Article 9 was not in issue. The author was refused re-entry into Kazakhstan after visiting his parents, having lived lawfully there for fourteen years (lately under a permanent visa), where his wife and son lived (also both Kazak nationals). The Committee did not refer to AlGertani, although there was some factual similarity in the serious irregularities on the part of the State. There was no evidence that either the relevant authority or national courts investigated the matter (e.g., by interviewing or questioning the author on the circumstances of the case). The decision to deny re-entry was reached solely on information provided by another State (the Russian Federation) without any formal procedure for verifying its credibility. The author was not informed of the specific reasons for the decision, nor was he given access to the case file in order to challenge it. He was only allowed to re-enter because of intelligence information that he had renounced his illegal activities. No criminal investigation was ever initiated against him, either in Kazakhstan or the Russian Federation. There had been no contested legal procedure to verify that the author posed any threat.51 There is very good reason in such circumstances to interpret ‘arbitrariness’ to include elements of inappropriateness, injustice, lack of predictability and due process of law. (As a separate matter, it would have been better if the Committee in Ilyasov had more clearly differentiated its own assessment of arbitrariness under Article 17 from the Article 12(3) limitation phraseology (‘national security, public order (ordre public), public health or morals or the rights and freedoms of others) invoked by the State which was reflected in the

deportation to Somalia, while significant, would not be disproportionate (no violation of Arts 17 and 23(1))). 50 Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013 [10.4], [10.9]. 51 Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.2] (citing GC 16 [3] [4]), [7.3] [7.7].

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legislation it used to justify the interference, particularly since Article 12 was not separately addressed in light of the Article 17 and 23 findings.52) Procedural irregularity also played an important part in Leghaei and Others v. Australia concerning the refusal of a permanent visa for ‘compelling reasons of national security’ with no further explanation. The other family members were allowed to remain. The Committee gave weight to the author’s sixteen years’ lawful residence and long-settled family life in Australia, and to the fact that his two elder sons were Australian citizens for most of that time, that his youngest daughter, who was born in Australia, attended Australian schools and had developed social relationships there. The Committee approached its decision of violation of Article 17 (read in conjunction with Article 23) by recalling, as it had done in Ilyasov v. Kazakhstan (but without reciting its General Comment 16 standard), that arbitrariness includes elements of inappropriateness, injustice, lack of predictability and due process of law.53 (As with Ilyasov there was no Article 9 issue.) It considered that an additional burden lay with the State in its procedure leading up to such disruption of long settled family life, which was not discharged in the circumstances, given the author was never formally provided with reasons for refusing him a visa, beyond a general explanation that he was a threat to national security, based on assessments of which he did not even receive a summary. His legal representatives were provided with information about the evidence against him, but a court order prevented him having access to any information that would allow him to instruct his lawyers and to refute the alleged threat to national security. The Committee determined that this procedure lacked due process of law. He had not been provided with an adequate and objective justification for the interference with his long settled family life.54

KE Y E LEMENTS OF ARTICL E 17 Privacy Privacy refers to the sphere of a person’s life in which they can freely express their identity, be it by entering into relationships with others or alone.55 It has numerous dimensions, as this section attests.

52 Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [4.13]. 53 Leghaei has been cited for the same elements in later cases such as D.T. v. Canada, CCPR/C/117/ D/2081/2011, 15 July 2016 [7.6]. 54 Leghaei et al. v. Australia, CCPR/C/113/D/1937/2010, 26 March 2015 [10.4] [10.5]. For a perspective of Leghaei from the author’s counsel in that case, see Ben Saul, ‘The Kafka esque Case of Sheikh Mansour Leghaei: the Denial of the International Human Right to a Fair Hearing in National Security Assessments and Migration Proceedings in Australia’, (2010) 33 UNSWLJ, p. 629. 55 Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [10.2].

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Choice of Name A person’s surname constitutes an important component of their identity. Article 17 includes protection against arbitrary or unlawful interference with the right to choose and change one’s own name.56 Violation has been found in a forcible change of a person’s name on official documents (Raihman v. Latvia;57 Bulgakov v. Ukraine58) and in the refusal to allow a formal change of name (Coeriel and Aurik v. Netherlands).59 Raihman v. Latvia and Coeriel and Aurik v. Netherlands have already been discussed.60

Sexual Activity Toonen v. Australia firmly established that adult consensual sexual activity in private is covered by the concept of ‘privacy’.61 The lack of an Article 26 finding was unwelcome because the focus only on Article 17 suggested that same-sex relations were a matter confined to the seclusion of private life. Nevertheles, in Concluding Observations since the Committee has frequently raised the criminalisation of consensual same-sex relations under Articles 17 and 26,62 and of course Article 26 provides wide-ranging protection against discrimination based on sexuality.63

Marital Status, Gender Identity and Official Documents The Committee did not find an Article 17 violation in Joslin v. New Zealand in the lack of capacity in New Zealand for same-sex couples to marry. The Marriage Act, 56 Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [10.2]. For discrimina tory restrictions on name change, see Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000. 57 Raihman v. Latvia, CCPR/C/100/D/1621/2007, 28 October 2010 [8.3]. 58 Bulgakov v. Ukraine, CCPR/C/106/D/1803/2008, 29 October 2012 [7.2] [7.3] (the imposition of a Ukrainian spelling for the author’s first name and patronymic in his identity documents resulted in him being subjected to frequent mockery and generated a feeling of deprivation and arbitrari ness, since it sounded ridiculous to Russian speakers). 59 Coeriel et al. v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [10.5]. 60 See section ‘Disproportionate Impact of an Interference to its Objectives’, above. 61 Toonen v. Australia, CCPR/C/50/D/488/1992 (1994), 31 March 1994 [8.2], [8.6]. 62 E.g., Romania CCPR A/54/40 (1999) 375; St Vincent and the Grenadines CCPR/C/VCT/CO/2 (2008) 8; CCPR/C/ETH/CO/1 (2011); Togo CCPR/C/TGO/CO/4 (2011) 14; Maldives CCPR/C/ MDV/CO/1 (2012) 8; Mauritania CCPR/C/MRT/CO/1 (2013) 8 (homosexuality is a crime punishable by the death); Jamaica CCPR/C/JAM/CO/4 (2016) 15; Kuwait CCPR/C/KWT/CO/ 3 (2016) 12; Bangladesh CCPR/C/BGD/CO/1 (2017) 11; Cameroon CCPR/C/CMR/CO/5 (2017) 13; Congo CCPR/C/COD/CO/4 (2017) 13; Mauritius CCPR/C/MUS/CO/5 (2017) 9; Swaziland CCPR/C/SWZ/CO/1 (2017) 18; Turkmenistan CCPR/C/TKM/CO/2 (2017) 8; Bahrain CCPR/C/BHR/CO/1 (2018) 23; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 14; Guinea CCPR/C/GIN/CO/3 (2018) 17; Lebanon CCPR/C/LBN/CO/3 (2018) 13; Sudan CCPR/C/SDN/ CO/5 (2018) 15. 63 See chapter on Article 26: Equality before the Law Equal Protection of the Law, section ‘Sexual Orientation, Gender Identity, Transgender Status’.

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in its terms, only applied to marriage between a man and a woman. Because the Covenant makes specific provision for the right to marriage in Article 23 that provision became the main focus. Article 23(2) was interpreted as recognising as marriage only the union between a man and a woman, since it uniquely adopts the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. From this the Committee decided that the mere refusal to provide for marriage between same-sex couples was not in violation of Articles 16, 17, 23(1) or (2), or 26.64 In order to achieve consistency with the Australian federal Marriage Act, which similarly defined marriage as being between a man and a woman, New South Wales births, deaths and marriages legislation did not allow a change to the birth certificate of the author in G v. Australia, who was male to female transgender, unless she divorced from her spouse (with whom she was in a happy relationship). It explicitly required that a person be unmarried when registering a change of sex and when seeking a new birth certificate. She claimed an invasion of privacy in the fact that her sex was different from that recorded on the birth certificate, which therefore revealed private information about her being transgender, as well as her medical history. She also claimed that requiring divorce in order to have a birth certificate changed interfered with her family. The Committee accepting this constituted interference, recalling from Coeriel the importance of freely expressing one’s identity, and from Raihman that privacy includes protection of a person’s identity.65 This case directly concerned gender identity. As to whether the interference was ‘arbitrary’ the applicable test was that in Toonen that it must be proportionate to the legitimate end sought and necessary in the circumstances. The author argued that consistency with the Marriage Act, as claimed, did not even constitute a legitimate aim. The Committee did not resolve that question because it found the interference with both the author’s privacy and family was arbitrary, mainly through its lack of necessity. Important factors were that a change in sex in other official identification documents, such as a passport, was allowed, and the author had in fact already been issued with a passport designating her as female. There was no explanation why a change in sex on a birth certificate was any different, nor indeed what interest was served in issuing documents with conflicting identity markers, or with identity information inconsistent with the subject’s personal situation, since this would only mislead officials as to the true identity of the bearer. The lack of necessity in the legislation was also telling in the fact that state and territory governments could decide for themselves whether to refuse or allow changes to a married transgender person’s sex on a birth certificate. The New South Wales legislation produced other anomalies, such that if the same facts occurred overseas, that is, if the author married her current spouse, completed 64 Joslin et al. v. New Zealand, CCPR/C/75/D/902/1999, 17 July 2002 [8.2] [8.3]. 65 The reference in G v. Australia to Raihman should perhaps have been to [8.2] rather than [8.3] since this better fits the context.

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gender reassignment surgery and changed the sex on her birth certificate, before returning to Australia, her marriage would be recognised in Australia. There was therefore important similarity with Toonen, in inconsistency of the legal regime at issue, as well as lack of consensus and enforcement, when in Toonen legislation in Tasmania (but not other states and territories) criminalised same-sex sexual conduct in private and even then was not enforced, implying that this was not essential to any averred aim.66 The Committee found inadmissible the authors’ claim in Rabbae et al. v Netherlands that Article 17 protects the right to ‘collective identity’ (i.e., ‘that an infringement on one’s individual identity, such as racial defamation, also influences one’s capacity and freedom to enjoy one’s collective identity, and vice versa’). They argued that the acquittal of the M.P. Geert Wilders in a private prosecution on charges of ‘insult of a group for reasons of race or religion’ was contrary to Article 20(2), and also Articles 26 and 27 given the link between Article 20 and those provisions. They alternatively relied on Article 17 because the statements were not directed against Islam as a religion, but against Muslims as human beings or against non-Western migrants. There were no specific Article 17 arguments distinct from those made to support the admissible Article 20(2) and 26 claims.67

Privacy of Information General Comment 16 acknowledged the strict limits that apply to State access to information about private life, when stating that ‘competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant’.68

66 G v. Australia, CCPR/C/119/D/2172/2012, 2 December 2017 [7.1], [7.10]. See also Australia CCPR/C/AUS/CO/6 (2017) 27 (most states and territories required transgender persons to undergo surgical or medical treatment and be unmarried as a prerequisite for changing the legal record of their sex on cardinal documents); Australia CCPR/C/AUS/CO/6 (2017) 29 (the explicit ban on same sex marriage resulted in discriminatory treatment of same sex couples, including in matters relating to divorce of couples who married overseas); Belarus CCPR/C/ BLR/CO/5 (2018) 19 (gendered ID numbers in passports made gender reassignment information available to a broad range of governmental officials, and indicated in military IDs for transgender men that they were unfit for service (serious mental disorder)); Lithuania CCPR/C/LTU/CO/4 (2018) 9 (same sex couples not legally recognised, including those legally married and recog nised outside Lithuania; absence of legislation enabling gender reassignment procedures and change of civil status without undergoing gender reassignment surgery). The deportation claim in M.Z.B.M. v. Denmark, CCPR/C/119/D/2593/2015, 20 March 2017 [7.2] [7.6] failed for lack of clear evidence to support assertions that her appearance following her gender reassignment surgery, hormonal treatment and dressing did not correspond with her ID documents, for which she has been detained on several occasions, sexually abused by Malaysian police, and charged with a criminal offence under the Sharia law. 67 Rabbae et al. v. Netherlands, CCPR/C/117/D/2124/2011, 14 July 2016 [5.4], [9.9]. 68 GC 16 [7]. See also Alger v. Australia, CCPR/C/120/D/2237/2013, 13 July 2017 [6.7] (the content of the notice advising a person of their apparent failure to vote cannot be interpreted as

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It was in the area of ‘gathering and holding personal information on computers, databanks and other devices’ (in the outmoded language of that General Comment) that the Committee recommended data protection measures, to enable individuals to ascertain what personal data is stored about them, for what purposes and by whom, and to entitle them to request rectification of information that is incorrect and the elimination of information improperly held. Effective measures must be taken to ensure that information concerning a person’s private life does not reach those not authorised to receive, process and use it, and it is never to be used for purposes incompatible with the Covenant.69 In reviewing State reports the Committee has issued recommendations to give effect to these requirements.70 Claims concerning the disclosure of personal information have been declared inadmissible in some cases with very little explanation. Tax inspectors disclosed sensitive information about the payment of taxes by the author in I.P. v. Finland when assessing the tax liability of two companies to which the information was divulged. He claimed the information was false, and that the tax officials neither gave him an opportunity to correct the information given, nor corrected it themselves. The Committee merely repeated the State’s submission that the disclosure was based on lawful regulations and necessary to determine the taxation of the two companies, and with disappointingly little explanation decided that the author had not substantiated his claim.71 More was provided in Ngambi v. France in a claim brought by two authors, Mr Ngambi, of Cameroonian origin with refugee status in France, and Ms Nébol also from Cameroon but wishing to settle in France. Ms Nébol applied for a visa on the ground of their family reunification, as his wife. Enquiries by the authorities revealed that their marriage certificate was not genuine, that in practice the two had no conjugal life together, and that he had a relationship with someone else who bore his child. The authors took issue with these enquiries, and Mr Ngambi objected to the disclosure to his ‘wife’ of the compelling them to reveal their political opinions, but only an invitation to demonstrate how they were exempt from voting). 69 GC 16 [10]. 70 E.g., France CCPR/C/FRA/CO/4 (2008) 22. See also Korea CCPR A/55/40 (2000) 149 (concern that there were no adequate remedies by way of correction of inaccurate information in databases or for their misuse or abuse); Spain CCPR/C/ESP/CO/5 (2009) 11 (concern that personal data may not be adequately protected in the fight against terrorism); Sweden CCPR/C/SWE/CO/6 (2009) 18 (recommendation that the gathering, storage and use of personal data not be subject to any abuses, and that the processing and gathering of information be subject to review and supervision by an independent body with the necessary guarantees of impartiality and effective ness); Kuwait CCPR/C/KWT/CO/3 (2016) 20 (unnecessary and disproportionate counter terrorism measures, which required nationwide compulsory DNA testing and the creation of a database under the control of the Minister of the Interior, imposing unnecessary and dispropor tionate restrictions on the right to privacy). Cf. Hungary CCPR/C/HUN/CO/5(2010) (17)6 (concern at the high level of protection in laws prohibiting the collection of disaggregated personal data of any kind, which impeded the Committee from effectively monitoring Art. 17 implementation). 71 I.P. v. Finland, CCPR/C/48/D/450/1991, 26 July 1993 [3], [6.3].

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extramarital affair, as violations of Article 17. The claim was inadmissible since the enquiries necessarily covered considerations relating to the private and family life of the authors pursuant to Ms Nébol’s visa application.72 It is clear from Concluding Observations that in general States are obliged to ensure that rights to privacy and confidentiality are guaranteed in the process of verifying the information provided in the framework of immigration, especially when the process involves disclosure of information to third parties.73 When addressing the extent to which lawyers and doctors could be compelled to give evidence, despite their duty of confidentiality, the Committee recommended that relevant legislation specify the precise circumstances in which limitations on the professional privilege of lawyers and medical doctors may be imposed.74 The issue of privacy of information has also arisen in the context of voting, in reports that the blind or visually impaired were obliged to vote verbally in front of a group of people representing political parties and the electoral commission.75

Surveillance Surveillance is not in principle prohibited.76 However, the Committee has been especially attentive in Concluding Observations where there has been insufficient judicial authorisation and supervision,77 and where judicial interpretation of the empowering legislation, and rulings of the relevant court, were largely kept secret, thereby preventing those affected from knowing the law with sufficient precision, or having access to effective remedies.78 It has urged that surveillance activities, both within and outside the territory of a State, conform to Article 17, regardless of the nationality or location of the individuals whose communications are under surveillance.79 It has been critical of intrusive surveillance powers on the basis of broad and insufficiently defined objectives.80 It expressed concern at untargeted warrants for certain intercepted communications, and a lower standard of safeguard against arbitrary interference than normal when communications were received from foreign security agencies or data was shared with them, when 72 73 75 76 77

Ngambi v. France, CCPR/C/81/D/1179/2003, 9 July 2004 [6.5]. New Zealand CCPR/C/NZL/CO/6 (2016) 36. 74 Portugal CCPR/CO/78/PRT (2003) 18. Malta CCPR/C/MLT/CO/2 (2014) 21. See above Van Hulst v. Netherlands, CCPR/C/82/D/903/1999, 1 November 2004 [7.6] [7.8]. E.g., Belarus CCPR/C/79/Add.86 (1997) 15; Jamaica CCPR A/53/40 (1998) 88; Poland CCPR/ C/79/Add.110 (1999) 22; Netherlands CCPR/C/NLD/CO/4 (2009) 15; Sweden CCPR/C/SWE/ CO/6 (2009) 18; France CCPR/C/FRA/CO/5 (2015) 12; New Zealand CCPR/C/NZL/CO/6 (2016) 15; Rwanda CCPR/C/RWA/CO/4 (2016) 35; South Africa CCPR/C/ZAF/CO/1 (2016) 43; Italy CCPR/C/ITA/CO/6 (2017) 36; Poland CCPR/C/POL/CO/7 (2016) 39. 78 USA CCPR/C/USA/CO/4 (2014) 22. 79 USA CCPR/C/USA/CO/4 (2014) 22(a). See also Poland CCPR/C/POL/CO/7 (2016) 39 (concern at the targeting of foreign nationals and application of different legal criteria to them). 80 E.g., France CCPR/C/FRA/CO/5 (2015) 12. See also Netherlands CCPR/C/NLD/CO/4(2009) 14 (any use of wire and telephone taps should be minimised so that only pertinent evidence is gathered and that a judge should supervise its use).

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instead robust oversight systems should provide for judicial involvement in the authorisation of such measures in all cases to prevent abuse.81 It has also been concerned about wide powers to retain data, as well as when retention is mandated.82 With attention to the requirements of domestic law the Committee has recommended that any interference with the right to privacy, family, home or correspondence be authorised by laws that: (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise and specify in detail the precise circumstances in which any such interference may be permitted, the procedures for authorization, the categories of persons who may be placed under surveillance, the limit on the duration of surveillance; procedures for the use and storage of data collected; and (iv) provide for effective safeguards against abuse.83

The Committee has frequently appealed to States to observe ‘the principles of legality, proportionality and necessity’ in this context.84 It has been concerned when surveillance has targeted human rights defenders,85 political dissidents86

81 E.g., UK CCPR/C/GBR/CO/7 (2015) 24. On sharing of raw data with other intelligence agencies, see also Sweden CCPR/C/SWE/CO/7 (2016) 36 37. 82 E.g., UK CCPR/C/GBR/CO/7 (2015) 24; South Africa CCPR/C/ZAF/CO/1 (2016) 43; Italy CCPR/C/ITA/CO/6 (2017) 36; Pakistan CCPR/C/PAK/CO/1 (2017) 35. 83 USA CCPR/C/USA/CO/4 (2014) 22(b); UK CCPR/C/GBR/CO/7 (2015) 24. The Concluding Observations addressed to the United States are further discussed by Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’, (2015) 56 Harv. Int. L.J., p. 81. For a critique of the US position on extraterritorial surveillance, see Peter Margulies, ‘The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism’, (2014) 82 Fordham L. Rev., p. 2137. See also Morocco CCPR/C/MAR/CO/6 (2016) 37 (lack of clarity in legal provisions which authorised and governed surveillance activities and the lack of oversight by an independent authority); Namibia CCPR/C/NAM/CO/2 (2016) 37 (concern that interception centres were operational despite the fact that their legislative basis was not yet in force); Honduras CCPR/C/HND/CO/2 (2017) 38 (difficult for victims to obtain legal redress); Switzerland CCPR/C/CHE/CO/4 (2017) 46 (law granted intrusive surveillance powers to the intelligence services on the basis of insufficiently defined objectives); Belarus CCPR/C/BLR/ CO/5 (2018) 43 (legislation provided for broad powers of surveillance and interception of all electronic communications without sufficient safeguards against arbitrary interference with the privacy of individuals); Hungary CCPR/C/HUN/CO/6 (2018) 43 (legal framework contained insufficient safeguards against arbitrary interference; lack of provision for effective remedies in cases of abuse); Lebanon CCPR/C/LBN/CO/3 (2018) 33 (access to data without prior judicial authorisation required by law; insufficient protection of biometric data under the legal framework). 84 E.g., USA CCPR/C/USA/CO/4 (2014) 22(a); France CCPR/C/FRA/CO/5 (2015) 12; Macedonia CCPR/C/MKD/CO/3 (2015) 23; UK CCPR/C/GBR/CO/7 (2015) 24; Colombia CCPR/C/COL/ CO/7 (2016) 32; Rwanda CCPR/C/RWA/CO/4 (2016) 35; South Africa CCPR/C/ZAF/CO/1 (2016) 43; Sweden CCPR/C/SWE/CO/7 (2016) 36; Honduras CCPR/C/HND/CO/2 (2017) 39; Italy CCPR/C/ITA/CO/6 (2017) 37; Belarus CCPR/C/BLR/CO/5 (2018) 44; Hungary CCPR/C/ HUN/CO/6 (2018) 44; Lebanon CCPR/C/LBN/CO/3 (2018) 34; Norway CCPR/C/NOR/CO/7 (2018) 21. 85 E.g., Philippines CCPR/C/PHL/CO/4 (2012) 15. 86 Ibid

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and politicians.87 It has stressed that limitations on the right to privacy are inadequate if they are unclear,88 including those which are directed at counterterrorism.89 A successful Article 17 claim in Andrei Sannikov v. Belarus followed unlawful recordings of telephone calls made by a candidate for the 2010 presidential elections (the author), his wife and members of his electoral campaign.90 In late 2013 General Assembly Resolution 68/167, introduced by Germany and Brazil, expressed deep concern at the negative impact that surveillance and communications interception (domestically and extraterritorially) may have on human rights, and called on all States to review their procedures, practices and legislation related to communications surveillance, interception and collection of personal data.91

DNA Testing DNA testing has recently received close Committee attention. S.L. v. Netherlands concerned a mouth swab ordered without taking account of the author’s age (approximately 15) or the nature of the crime for which he was convicted (‘indecent act with a person younger than 16 years old’ and false bomb alert). It was taken for the purposes of the investigation, prosecution and trial of serious criminal offences and the protection of the rights of others, including potential victims of violent or sexual crimes. It constituted an interference with his private life, the Committee readily accepted, especially in the light of the European Court’s observations in S and Marper v. United Kingdom concerning the highly personal nature of cellular samples, which contain sensitive information about an individual, including their health, and a unique genetic code of great relevance to both the individual and relatives.92 The State defended it as minimal interference practised in the least invasive way, secured by anonymous storage for a limited period. It occurred only following conviction for crimes of a certain gravity, and was necessary given there existed no other equally effective tool in preventing and investigating such crimes. The Committee found the interference was not

87 E.g., Macedonia CCPR/C/MKD/CO/3 (2015) 23. 88 E.g., San Marino CCPR/C/SMR/CO/2 (2008) 13; New Zealand CCPR/C/NZL/CO/6 (2016) 15 (absence of a clear definition of ‘national security’ and ‘private communication’ in its empower ing legislation). 89 E.g., San Marino CCPR/C/SMR/CO/2 (2008) 13; Colombia CCPR/CO/80/COL (2004) 9 (‘anti terrorist statute’ placed restrictions on the right to privacy which did not seem to be compatible with Art. 17); Poland CCPR/C/POL/CO/7 (2016) 39 (unlimited and indiscriminate surveillance of communications and collection of metadata under terrorism legislation). 90 Sannikov v. Belarus, CCPR/C/122/D/2212/201, 6 April 2018 [6.9]. 91 GA Res. 68/167 (18 December 2013). Anupam Chander and Molly Land briefly analysed the resolution for what it does and does not cover, in ‘United Nations General Assembly Resolution on the Right to Privacy in the Digital Age’, 53 Int. Legal Materials 727 (2014). 92 S and Marper v. United Kingdom, Grand Chamber Judgment of 4 December 2008 [72] [73].

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proportionate to its legitimate aim, influenced by a number of factors. The material and profile were kept for thirty years in the case of serious offences, and twenty years for less serious offences. The authorising legislation only provided for confined weighing of interests before the collection order was issued, and the exceptions were very narrow (applicable when it was impossible to reoffend owing, e.g., to injury) and did not allow the age of the offender to be a consideration. The failure of the legislation to distinguish between children and adults could not be dismissed simply because of the criminal justice aims pursued. Special provision is required to be made for children, including in Covenant Articles 14(4) and 24. In all decisions taken within the context of the administration of juvenile justice, the best interest of the child should be a primary consideration.93 Specific attention should also be given to the need for the protection of children’s privacy at criminal trials, following S and Marper. The author’s age was never taken into consideration in S.L. v. Netherlands, including throughout the process of collection of the DNA samples. He was not informed of the possibility of objecting to the sample being collected, and was not offered the chance of being accompanied by a legal representative.94 N.K. v Netherlands, decided the same day, followed an identical analysis. It differed in that the DNA testing was much less justifiable since the author was sentenced to 36 hours of community service for an act of verbal violence and theft.95 DNA testing may be allowed for immigration purposes, but only where necessary and appropriate, for example, to determine the family tie on which a residence permit is to be based.96

Pregnancy Testing Pregnancy testing by employers is common in some countries. The Committee took issue following allegations it received that women seeking employment in a range of countries were subjected to pregnancy tests.97 In one country there were allegations that candidates were also required to respond to intrusive personal questioning, and some employees were administered anti-pregnancy drugs.98

93 CRC, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10 [10]. 94 S.L. v. Netherlands, CCPR/C/120/D/2362/2014, 18 July 2017 [10.1] [10.11]. 95 N.K. v. Netherlands, CCPR/C/120/D/2326/2013, 18 July 2017 [9.2] [9.12]. See also Kuwait CCPR/C/KWT/CO/3 (2016) 20 (sweeping scope of DNA testing, with severe penalties for refusal; broad powers to collect and use DNA samples, including ‘for any other cases required by the supreme interest of the country’; and lack of clarity on necessary safeguards). 96 E.g., Denmark CCPR/CO/70/DNK (2000) 15. 97 E.g., Panama CCPR/C/PAN/CO/3 (2008) 16; Mexico CCPR/C/MEX/CO/5 (2010) 7; Guatemala CCPR/C/GTM/CO/3 (2012) 9. 98 Mexico CCPR/C/79/Add.109 (1999) 17.

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HIV Testing Article 17 was found to be violated in Vandom v. Korea because teachers who were neither Korean nationals nor of Korean ethnicity were required to undergo mandatory HIV/AIDS and drug testing (by a urine and blood test) when applying for a visa, with the stated aim of managing the entry and stay of foreigners in order to maintain public health and public order. There was no explanation of how testing on that specific group pursued those aims or could be justified as reasonable (when teachers of Korean ethnicity and nationality were exempt). There was also credible evidence suggesting that HIV restrictions on entry, stay and residence based on positive HIV status may harm public health.99

Forced Medical and Similar Intervention The Committee responded to reports of forced medication in high dosages in Latvian State-run social care centres for adults with mental disabilities with recommendations for a proper regulatory framework to ensure that any decision to use restraints and coercive force be made after a thorough and professional medical assessment, determining the amount of restraint or coercive force to be applied.100 In general, non-consensual use of psychiatric medication, electroconvulsive therapy, and other restrictive and coercive practices in mental health services is prohibited; non-consensual psychiatric hospitalisation and treatment may be applied, if at all, only in exceptional cases as a measure of last resort, where absolutely necessary for the benefit of the person concerned, for the shortest possible time, without any long-term impact and under independent review.101 Medical treatment or surgical interventions involving those with disabilities who have been deprived of their legal capacity must be respectful of the principle of free, prior and informed consent of those concerned, and be carried out pursuant to appropriate legal and procedural safeguards, with effective legal remedies guaranteed, and any abuse must be effectively investigated, with criminal liability in appropriate cases. Any restriction on legal capacity is to be no greater than necessary, imposed pursuant to appropriate legal and procedural safeguards, and 99 Vandom v. Korea, CCPR/C/123/D/2273/2013, 12 July 2018 [8.6] [8.9]. See also Turkmenistan CCPR/C/TKM/CO/1 (2012) 15 (foreign citizens infected with HIV/AIDS may freely enter but only for a maximum period of three months, and upon detection of an infection, they were deported); Malawi CCPR/C/MWI/CO/1 (2014) 20 (reports of proposals for compulsory HIV testing, and to allow a health service provider to disclose a person’s HIV status in certain circumstances); Turkmenistan CCPR/C/TKM/CO/2 (2017) 32 (requirement that a medical certificate show that the holder is HIV free for visa applications; compulsory HIV testing). For discrimination on HIV grounds, see chapter on Article 26: Equality before the Law Equal Protection of the Law, sections ‘Grounds of Discrimination’, ‘Other Status’, ‘Miscellaneous’. 100 Latvia CCPR/C/LVA/CO/3 (2014) 16. See also Norway CCPR/C/NOR/CO/7 (2018) 22 (weak procedural safeguards for patients and the lack of recourse to less intrusive measures as a first resort in the use of coercive electroconvulsive treatment). 101 Latvia CCPR/C/LVA/CO/3 (2014) 16; Lithuania CCPR/C/LTU/CO/4 (2018) 14.

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ensuring free and effective legal representation in all proceedings, and prompt access to effective judicial review of decisions.102 Forced sterilisation has been an issue under both Articles 7 and 17 where a husband’s authorisation is needed, or where sterilisation is required for those with a certain number of children or those of a certain age.103

Denial of Abortion Services The denial of an abortion was in violation of Article 17 in K.N.L.H. v. Peru for a 17-year-old who was carrying an anencephalic foetus. Although she was scheduled for a termination procedure, on arrival at hospital the director intervened to prevent it. In Peru abortion was permitted only when termination was the only way of saving the life of the pregnant woman or avoiding serious and permanent damage to her health. She gave birth to a baby girl, who survived for four days, during which time the author had to breastfeed her. Following her daughter’s death, the author fell into a state of deep depression. The Committee accepted that she qualified for a lawful abortion, and it found the refusal to act in accordance with her decision to terminate her pregnancy was not justified and interfered arbitrarily in her private life.104 It also found violation of Article 7 (which covers not only physical pain but also mental suffering, and is particularly important in the case of minors),105 and Article 24 (noting the special vulnerability of the author as a minor girl, and her claim that she did not receive, during or after her pregnancy, the medical and psychological support needed).106 In L.M.R. v. Argentina the question was whether a young woman who was suffering a permanent disability, with a mental age of between eight and ten years, was victim of a violation of Article 17 when prevented from terminating a pregnancy. It was the result of a rape by a relative and first became known when she was 14½ weeks pregnant. Termination was not against the Criminal Code because she satisfied the legal requirements (her disability was diagnosed, her legal representative gave consent and the termination could be performed by a licensed physician). The Committee found that the failure to guarantee her right to terminate the pregnancy, as allowed and when requested, violated Article 7 because of the physical and mental suffering she endured, made especially serious given her mental disability. In making its finding of arbitrary interference in her private life, the Committee contrasted the interference chosen by the State when

102 Lithuania CCPR/C/LTU/CO/4 (2018) 14. 103 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’. 104 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003, 24 October 2005 [6.4]. 105 CCPR General Comment No. 20: Article 7 (Prohibition of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992 [2], [5]. 106 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003, 24 October 2005 [6.3], [6.5].

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acting through the judiciary to prevent the abortion to the far more preferable path available to it, allowed by its Criminal Code.107 In Mellet v. Ireland and Whelan v. Ireland the Committee found that balance struck in Irish law, between protecting the foetus and the rights of the woman, in prohibiting abortion except if the woman’s life was in danger, could not be justified under Article 17. The situation faced by the author in Mellet was that her unborn child had congenital heart defects and would die in utero or shortly after birth. She had to choose between letting the State make the deeply intimate decision for her to continue with a non-viable pregnancy, under conditions of considerable suffering, and the alternative of having to travel abroad for a termination. She flew with her husband to Liverpool and once in hospital began the process of terminating her pregnancy. She was in labour for 36 hours and delivered a stillborn baby girl. Still feeling weak and bleeding, she had to travel back to Dublin only 12 hours after the delivery, as they could not afford to stay any longer in the United Kingdom. No financial assistance was available. These significant negative consequences could have been avoided if she had been allowed to terminate her pregnancy in Ireland. Her distress was exacerbated by the fact that, as a result of legislation criminalising advocating or promoting the termination of pregnancy, she did not have access to key medical information about overseas abortions and the most appropriate types of terminations, given her period of gestation. The interference in her decision as to how best to cope with her non-viable pregnancy (through the application of the law) was unreasonable and arbitrary.108 The decision in Whelan also concerned a non-viable pregnancy and substantially followed Mellet in finding an arbitrary interference in the author’s right to privacy.109 Family The term ‘family’ is interpreted broadly, under both Article 17 and 23,110 to include all those comprising the family as understood in the society of the State concerned.111 The Committee adopts the meaning developed under Article 23, referring not solely to the family home during marriage or cohabitation, but also to relations in general between parents and a child.112 Where there are biological 107 L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, March 2011 [9.2] [9.3]. 108 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [2.2] [2.4], [7.7] [7.8]. The Committee also used language concerning ‘the balance to be struck’ in G.E. v. Netherlands, CCPR/C/118/D/2299/2013, 3 November 2016 [8.12] between the interests of the author in having shelter and social assistance, and the interests of the State Party in ensuring such assistance remains affordable and accessible and in ensuring an effective immigration policy. 109 Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017 [7.8] [7.9]. 110 Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.7]. 111 GC 16 [5]. 112 Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.2], applying under Art. 17 the meaning of ‘family’ under Art. 23(1) in Hendriks v. Netherlands, CCPR/C/95/D/201/1985, 27 July 1988 [10.3], and in Santacana v. Spain, CCPR/C/51/D/417/1990, 15 July 1994 [10.2].

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ties, there is a strong presumption that a ‘family’ exists, and only in exceptional circumstances will such relationship not be protected by Article 17.113

Residence Status When legislation conferred de facto residence status on the wives, but not the husbands, of Mauritian citizens, three married women claimed in AumeeruddyCziffra et al. v. Mauritius that this was an interference with their rights under Article 17(1). The relationships to their husbands clearly belonged to the area of ‘family’. The common residence of husband and wife had to be considered as the normal behaviour of a family. The authors were ‘actually affected’ by the legislation even in the absence of any individual measure of implementation (such as denial of residence or a deportation order) because of the existing precarious residence situation of foreign husbands, rendering it uncertain for these families whether and for how long it would be possible for them to continue their family life by living together in Mauritius. Because these authors suffered adverse consequences only because of their status as women, the Committee based its decision primarily on discrimination provisions, finding a violation of Articles 2(1) and 3, in conjunction with Article 17(1).114

Family Separation on Deportation Deportation commonly prompts claims under Articles 17 and 23 concurrently where it threatens to breakdown significant family ties (invoking the ‘family’ limb of Article 17, and entitlement to protection for the family under Article 23). Articles 17 and 23 differ in that arbitrariness is not a determinant of violation of Article 23. Where the Committee finds a violation of both, its reasoning predominantly turns on Article 17, and it is generally content to indicate that it is satisfied that there has been a violation of Article 23 on the same material.115 The Committee set out certain principles in Winata v. Australia (which it applies routinely) on the question of interference. It concerned the decision to deport the parents of a 13-year-old who had lived in Australia all his life. The Committee responded firmly to Australia’s attempt to avoid the characterisation of ‘interference’ with the family under Article 17, when Australia treated the choice of whether the child should accompany his parents to Indonesia or remain in Australia as an issue purely for the family, not compelled by the State’s actions. The Committee explained that there may be cases in which a State’s refusal to allow one member of a family to remain would involve interference in that person’s family life; however, the mere fact that one family member is entitled 113 Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.2]. 114 Aumeeruddy Cziffra et al. v. Mauritius, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2 (b)2(i)1], [9.2(b)2(i)2], [9.2(b)2(i)8]. 115 See chapter on Article 23: Protection for the Family.

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to remain does not necessarily mean that requiring others to leave involves such interference. On the facts the interference lay in the substantial changes to long settled family life which would follow from a decision of the parents either to return to Indonesia with the child or leave him in Australia, because the deportation decision compelled the family to choose which of these undesirable options to take. As to whether the interference was arbitrary, the Committee accepted that a State may require the departure of those who remain beyond the limits of their immigration permits, and it also conceded that the fact that a child is born or acquired citizenship (as the child in this case had) does not itself render proposed deportation of one or both parents arbitrary. There is latitude to enforce immigration policy, but it is not unlimited. In the event, the decision was found to be arbitrary because the 13-year-old child had grown up in Australia all his life, and he had attended Australian schools where he developed social relationships. It was incumbent on the State to demonstrate, which it had not done, additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law, to avoid the conclusion of arbitrariness.116 For more detailed discussion of the threshold at which interference with the family is arbitrary, see section ‘Objective Justification in the Light of the Reasons for Interference and the Degree of Hardship’, above. In all decisions affecting a child, the child’s best interests must be a primary consideration. The failure to meet this requirement resulted in an adverse finding in D.T. v. Canada. A removal order faced the author with the choice of leaving her 7-year-old son behind in Canada, or exposing him in Nigeria to a lack of medical treatment he needed for various conditions, and educational support.117 Similarly, in Maalem and Maalem v. Uzbekistan, an expulsion order against Mr Maalem faced the authors with the choice of leaving Uzbekistan, as a family unit, and exposing their children to unforeseen challenges in Algeria, or breaking the family unit. Neither option would not have been in the best interests of the children. There was no adequate explanation as to why the legitimate objective in upholding its criminal policy towards aliens, by applying a provision resulting in the automatic expulsion of those who had committed crimes and served their sentences, should have outweighed the best interests of the authors’ children. This was in violation 116 Winata and Li v. Australia, CCPR/C/72/D/930/2000, 26 July 2001 [7.1] [7.3]. The question of choice on family separation is recurrently considered: Madafferi v. Australia, CCPR/C/81/D/ 1011/2001, 26 July 2004 [9.7] [9.8]; Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, 1 November 2004 [11.5] [11.9]; Dauphin v. Canada, A/64/40 vol. II (2009), Annex VII.SS, 427, 28 July 2009 [8.1] [8.4]; Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.7] [8.10]; Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.6] [7.8]; Leghaei et al. v. Australia, CCPR/C/113/D/1937/2010, 26 March 2015 [10.3] [10.4]; W.M.G. v. Canada, CCPR/C/116/D/2060/2011, 11 March 2016 [7.6]; D.T. v. Canada, CCPR/C/117/D/ 2081/2011, 15 July 2016 [7.10]; Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018 [9.5] [9.7]. 117 D.T. v. Canada, CCPR/C/117/D/2081/2011 15 July 2016 [7.10] (violation of Art. 17(1), read alone and in conjunction with Art. 23(1)).

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of Article 17(1), read alone and in conjunction with Article 23 (1), in respect of the authors and their children.118

Child Custody and Access Article 17 requires effective protection for the right of a parent to regular contact with his or her minor children. There may be exceptional circumstances in which denying contact is appropriate in the interests of the child and cannot therefore be deemed unlawful or arbitrary. There were no exceptional circumstances present in L.P. v. Czech Republic, and Article 17 was violated, because the domestic court’s ruling that such contact should be maintained between the author and his son was met with an inadequate enforcement response to his wife’s breach of the access order.119 In cases of child custody and access, the relevant criteria for assessing whether the specific interference with family life can be objectively justified must be considered in the light of the effective right of a parent and a child to maintain personal relations and regular contact with each other, on the one hand, and, on the other, the best interests of the child.120 The need for proper judicial oversight of this question was an important aspect of N.T. v. Canada. The author and her daughter lived together until her daughter was four. The author was then placed in institutional custody, but she was in contact with the child for the following two years. This meant that she and her daughter had formed a family. The daughter was removed from her mother’s care for an initial three-month period because of the authorities’ belief, later confirmed by her criminal conviction, that she had assaulted the child. Although removal was temporary, it only granted the author access to her daughter under extremely harsh circumstances. These endured after the initial period so that she was denied all access for eighteen months, and when access was renewed visits were supervised by the authorities at their premises, only every third week, for 90 minutes, and no telephone communication was allowed. This arrangement was terminated by the authorities and the issue was not assessed by a judge for some time. When it was, she was denied access. The Committee found that the authorities’ unilateral termination of access, without a judge reassessing the situation, or the author being given the opportunity to oppose it, constituted arbitrary interference with the family.121 In Buckle v. New Zealand the Committee accepted the State’s assertions that the situation was under regular review and that the author had been given the opportunity to retain access to her children, and found that deprivation of the author’s guardianship rights over her six children was not arbitrary. Her 118 119 120 121

Maalem and Maalem v. Uzbekistan, CCPR/C/123/D/2371/2014, 17 July 2018 [11.7]. L.P. v. Czech Republic, A/57/40 at 294, 25 July 2002 [7.3] [7.4]. See, e.g., D.T. v. Canada, CCPR/C/117/D/2081/2011 15 July 2016 [7.10]. Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.5] [8.6].

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children (at the relevant time aged between 8 and 1 year) were removed, under full judicial scrutiny, because of her inability to look after them adequately. The author’s capacity to care for her children did not improve, and the decision that the children be placed with caregivers was confirmed by regular statutory reviews and an appeal brought by the author against court decisions.122 The State’s failure to adopt suitable measures to allow contact between the author in Arkadiusz Zoltowski v. Australia and his son, after the child’s removal from Poland by his mother who had moved to Australia, resulted in a finding of violation because, as the Committee put it, ‘the author’s application for access was rejected due to concurrent custody proceedings initiated almost four years earlier’.123

Failure to Inform Relatives Arbitrary interference with the family may occur in a range of circumstances involving failure by authorities to inform relatives of particular circumstances affecting an individual. In Tornel et al. v. Spain Article 17 was violated in the failure by prison authorities to inform relatives of the seriousness of an incurably ill prisoner’s condition during the final months of his life, in spite of earlier contact with the relatives and their request to be kept informed. The passive attitude of the authorities deprived them of information, which undoubtedly had a significant impact on their family life and could be characterised as arbitrary.124 The Committee has also indicated that there would be a violation of Article 17 if the family of a disappeared person is not informed of that person’s whereabouts, or the location of their remains.125 Home

Family Home The term ‘home’ denotes the place where a person resides or carries out their usual occupation.126 There was demonstrable arbitrary interference with ‘the privacy of the family home’ in Pathmini Peiris v. Sri Lanka when police officers so harassed a family while in their home through threatening telephone calls and forced visits 122 Buckle v. New Zealand, CCPR/C/70/D/858/1999, 25 October 2000 [5.3], [9.1]. 123 Zoltowski v. Australia, CCPR/C/115/D/2279/2013, 5 November 2015 [7.3]. The decision was strongly opposed in Australia’s response to those Views. 124 Tornel et al. v. Spain, CCPR/C/95/D/1473/2006, 20 March 2009 [7.3] [7.4], relying on Canepa v. Canada, CCPR/C/59/D/558/1993, 3 April 1997 [11.4]. 125 Guinea A/39/40 (1984) 145. See also Lale and Blagojević v. Bosnia and Herzegovina, CCPR/C/ 119/D/2206/2012, 17 March 2017 [7.6] [7.7] (the anguish and distress caused by the continu ing uncertainty resulting from not knowing where their mothers’ remains may be, and the impossibility of giving them a proper burial a violation of Art. 7, read in conjunction with Art. 2(3); in the light of that finding no separate examination was made under Arts 17 and 23(1)). 126 GC 16 [5].

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that the household members feared to live there and were forced into hiding, unable to live a peaceful family life. This began when the father and mother of the family unknowingly purchased a stolen lorry (with fraudulently changed registration plates) from the officer in charge of the local police station and then pressed complaints.127 In A.S. v. Nepal the conduct of police officers constituted unlawful interference with the author’s privacy, family and home (the Committee does not always distinguish them) when, in response to the author’s quest for justice and redress for being tortured, his entire family was subjected to repeated threats and harassment, he and his wife were beaten in their home in front of their daughter, detained and subjected to ill-treatment.128 The claims in Rojas Garcia v. Colombia arose out of an investigation into the murder of the local mayor, in the course of which officers conducted a raid on a family home at 2 am. A group of hooded armed officers forcibly gaining access through the roof, while others entered by the front door. One officer fired a gun in a room where there were young children. The Committee found nothing in the State’s arguments to justify the conduct which, though carried out to the letter of the law (but on the wrong house), amounted to ‘arbitrary interference in the home of the Rojas Garcia family’.129

Searches and Forced Entry Searches of a person’s home should be restricted to those for necessary evidence and should not be allowed to amount to harassment.130 The Committee found an arbitrary interference with privacy, family and the home in Yklymova v. Turkmenistan because the author’s home was searched without legal grounds, she was deprived of telephone contact, and her apartment, passport and identity documents were confiscated, without explanation. ‘Arbitrariness’ was conspicuous given the author was the daughter of a former prominent minister who (along with other ministers) was convicted and sentenced in absentia to life imprisonment for conspiracy to overthrow the president in the wake of a recent assassination attempt.131 In some cases, the Committee has found that the unlawful aspect of the interference is sufficient. In Coronel et al. v. Colombia, a military raid on a number of homes in an indigenous community was unlawful, since the soldiers did not have the judicial warrants prescribed by Colombian law, as confirmed by witnesses from the Attorney-General’s Office. In the absence of any explanation to justify this, the Committee concluded that there had been a violation of Article 127 Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011 [2.8], [7.6] [7.7] (violation of Arts 6, 7 and 17 alone, and of each read in conjunction with Art. 23(1)). 128 A.S. v. Nepal, CCPR/C/115/D/2077/2011, 6 November 2015 [8.5]. 129 García v. Colombia, CCPR/C/71/D/687/1996, 3 April 2001 [7.2], [10.3] (the Art. 23 and 24 claims were inadmissible, because they were of a general nature). 130 GC 16 [8]. 131 Yklymova v. Turkmenistan, CCPR/C/96/D/1460/2006, 20 July 2009 [7.6].

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17(1), ‘inasmuch as there was unlawful interference in the homes of the victims and their families or in the houses where the victims were present, including the home of [one victim] who was not there at the time’.132 A number of cases illustrate violation of Article 17 by ‘unlawful’ interference with the home because victims were arrested following forced entry by soldiers or police in the middle of the night without a warrant.133 Some involved deliberate damage to property and seizure of valuable items such as jewellery,134 or violence in the presence of family members, and in extreme cases in the context of enforced disappearance.135 In Concluding Observations the Committee has expressed concern that searches are common with or without a warrant;136 that abuses occur in house searches, and decisions on the question of legality are in the competence of the General Procurator, without a court review;137 and that there are limited possibilities for those affected by home searches to challenge them.138 Personal and body searches require effective measures to ensure that they are carried out with dignity. Body searches should be conducted by someone of the same sex.139

Demolition of the Home and Eviction Article 17 interferences sometimes entail destruction of the family home as a result of political retaliation, or to move minorities on from the area (particularly Roma) to make way for development. Aouali et al. v. Algeria concerned a politically motivated response to the victim’s support for the Front islamique du salut. Armed plain clothes officers searched the family home without a warrant, and both the family farm and home were completely destroyed, one in the presence of a gendarmerie brigade and the other in the presence of the police commissioner, resulting in findings under both Articles 7 and 17 on substantially the same facts.140 The claim in Saleh Salem 132 Coronel et al. v. Colombia, CCPR/C/76/D/778/1997, 24 October 2002 [9.7]. 133 Article 23 is not always considered in such cases. See, e.g., Mezine v. Algeria, CCPR/C/106/D/ 1779/2008, 25 October 2012 [8.10] (no consideration of Art. 23); Boudehane v. Algeria, CCPR/ C/111/D/1924/2010, 24 July 2014 [8.10] (Art. 23 not considered separately); Dehimi and Ayache v. Algeria, CCPR/C/112/D/2086/2011, 30 October 2014 [8.10] (Art. 23 not considered); Kroumi v. Algeria, CCPR/C/112/D/2083/2011, 30 October 2014 [8.10] (Art. 23 not consid ered); Boudjema v. Algeria, CCPR/C/121/D/2283/2013, 30 October 2017 [8.11] (Art. 23 not considered separately). 134 Marouf v. Algeria, CCPR/C/110/D/1889/2009, 21 March 2014 [7.11]. 135 Bolakhe v. Nepal, CCPR/C/123/D/2658/2015, 19 July 2018 [7.19]; Tshidika v. Congo, CCPR/ C/115/D/2214/2012, 5 November 2015 [6.7]. 136 E.g., Malawi CCPR/C/MWI/CO/1 (2011) 14; Malawi CCPR/C/MWI/CO/1 (2014) 20. 137 E.g., Belarus CCPR/C/79/Add.86 (1997) 15. 138 E.g., USA CCPR/C/USA/CO/3/Rev.1 (2006) 21 (recommendation that the State should ensure that any infringement on an individual’s rights to privacy is strictly necessary and duly authorised by law, and that the rights of individuals to follow suit in this regard are respected). 139 GC 16 [8]. 140 Aouali et al. v. Algeria, CCPR/C/109/D/1884/2009, 18 October 2013 [2.2], [2.3], [7.8], [7.12].

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Hmeed and Others v. Libya arose after armed security officers in plain clothes stormed the family home without a warrant, breaking doors and windows. They beat the author, who was elderly and ill, looted the premises, taking all the valuables, then removed all those family members present and set fire to the house.141 The eviction of a Roma community and the destruction of their property gave rise to findings under Articles 17, 23 and 27 in Georgopoulos et al. v. Greece. Much of the evidence was in dispute, but the Committee was satisfied that they had established that this was arbitrary and unlawful, given significant impact on their family life.142 Occasionally, there is dispute as to what constitutes a ‘home’ for the purposes of Article 17. Naidenova et al. v. Bulgaria involved the threatened eviction of the authors from their houses, in a community consisting of impoverished Roma, which had been in existence for over seventy years. During that time, the housing of the community had been recognised by public authorities in that it was provided with an individual mail service and publicly regulated services, such as electricity, and the community had police registration of their address. The authors were not the lawful owners of the plot of land on which their houses were constructed, but in the light of the long history of their undisturbed presence in the community the Committee considered that their houses were their ‘homes’ within the meaning of Article 17. Neither the authorities nor the courts were required to have regard to the various interests involved in their immediate eviction, or to consider its reasonableness. Nevertheless, the Committee found that the eviction, if carried out, would interfere ‘arbitrarily’ with the authors’ ‘homes’ by not giving due consideration to the consequences of their eviction, such as the risk of their becoming homeless when satisfactory replacement housing was not immediately available.143 Repeated forcible eviction led to the unrefuted claims in Chiti v. Zambia that soldiers, police officers and State security agents forced their way into the family flat, took away all the family belongings, prevented the family from returning, and subsequently forcibly and illegally evicted them from six homes in which they attempted to seek shelter. (This occurred in the context of the torture and ill141 Hmeed et al. v. Libya, CCPR/C/112/D/2046/2011, 17 October 2014 [6.6] (the Committee did not consider the Art. 23(1) separately). 142 Georgopoulou et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010 [7.3]. The demolition of homes has also been raised as an Art. 17 issue in periodic reviews, as a discriminatory or punitive measure, e.g., Israel CCPR/C/79/Add.93 (1998) 24 (destruction of illegally con structed Arabs’ homes in Israel); Israel CCPR/CO/78/ISR (2003) 16 (partly punitive demolition of homes in the Occupied Territories). 143 Naidenova et al. v. Bulgaria, CCPR/C/106/D/2073/2011, 30 October 2012 [14.2] [14.7]. Similarly put by the Committee in ‘I Elpida’ v. Greece, CCPR/C/118/D/2242/2013, 3 November 2016 [12.4], [12.8]. Cf. Basem Ahmed Issa Yassin et al. v. Canada, CCPR/C/ 120/D/2285/2013, 26 July 2017 [3.3] (inadmissible); B.Z. et al. v. Albania, CCPR/C/121/D/ 2837/2016, 8 November 2017 [3.6], [6.4] (inadmissible).

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treatment of the author’s husband, a military officer who was arrested as a suspect in an attempted coup and charged with treason.) The illegal eviction and the destruction of the family’s personal belongings had significant impact on the author’s family life, in ‘infringement on her family’s rights under articles 17 and 23, paragraph 1’.144 Eviction without provision of a different place to live was found to be both arbitrary and unlawful (because it was carried out in a manner contrary to the domestic legislation) in Petr Gatilov v. Russian Federation.145 Forcible eviction has been raised in Concluding Observations under Article 17, for example, as it concerned displaced persons living in camps in Haiti without another solution being found for them;146 and those in informal settlements in Kenya, without prior consultation with the populations concerned and/or without making appropriate resettlement arrangements.147 Other instances have involved mass house demolitions and forced evictions in Turkmenistan to make way for construction and development projects without adequate notice or providing alternative accommodation;148 evictions of Syrian refugees in Lebanon;149 and in Italy against Roma, Sinti and Camminanti communities.150 Loss of the home as a result of discriminatory termination of a lifetime tenancy was an arbitrary interference with the home under Article 17 in Vojnović v. Croatia. The author and his family were forced to leave their State-owned apartment following death threats they received simply for belonging to the Croatian Serb minority. Other inhabitants of the apartment building in the same situation were forcibly evicted when they reported similar threats, and so the author was deterred from reporting until after he and his family had left the city. Even though he informed the authorities of the reasons for his departure from the apartment he was unjustifiably excluded from the court proceedings which determined his tenancy rights. The Committee found that the termination was domestically lawful so the only question was whether it was arbitrary. The State asserted (among other things) a legitimate aim of liberating housing space that was unoccupied to provide accommodation for other citizens in need. The Committee instead focused on the threats and intimidation the authors received on account of their Serb minority status, to conclude that the cause of their departure was duress and related to discrimination.151 144 145 146 147 148

Chiti v. Zambia, CCPR/C/105/D/1303/2004, 26 July 2012 [12 8]. Gatilov v. Russian Federation, CCPR/C/120/D/2171/2012, 13 July 2017 [9.4]. Haiti CCPR/C/HTI/CO/1 (2014) 18 (following the 2010 earthquake). Kenya A/36/40 (1981) 22; Kenya CCPR/C/KEN/CO/3 (2012) 21. Turkmenistan CCPR/C/TKM/CO/2 (2017) 34. See also Mongolia CCPR/C/MNG/CO/6 (2017) 35 (the impact of urban redevelopment on residents facing the risk of forced eviction). 149 Lebanon CCPR/C/LBN/CO/3 (2018) 37. 150 Italy CCPR/C/ITA/CO/6 (2017) 14. See also Romania CCPR/C/ROU/CO/5 (2017) 11 (forced evictions of Roma without adequate advance notice or the possibility of legal challenge and without support by governmental agencies to access adequate alternative accommodation); Serbia CCPR/C/SRB/CO/3 (2017) 14 (forced eviction). 151 Vojnović v. Croatia, CCPR/C/95/D/1510/2006, 30 March 2009 [8.7] (violation of Art. 17 in conjunction with Art. 2(1)).

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Correspondence (Prison Procedures) A prisoner’s right to see their family and relatives or to exchange correspondence with them is secured under the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules). Prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals by corresponding in hard copy or digitally, and by receiving visits.152 A violation was found in Khadzhiev v. Turkmenistan because for the duration of the author’s two years’ imprisonment he was denied the right to see his family and relatives or to exchange correspondence with them.153 As a rule, correspondence should be delivered to the addressee without interception and without being opened or otherwise read.154 Censorship of correspondence by prison authorities is inevitable, but in Pinkney v. Canada the Committee criticised prison regulations concerning correspondence, because they were couched in very general terms which did not provide satisfactory legal safeguards against arbitrary application.155 The claim in Estrella v. Uruguay went much further. Severe censorship prevented detainees writing to their lawyers or to international organisations, and prison officials who acted as ‘censors’ arbitrarily deleted sentences and even refused to dispatch letters. During the author’s detention he was given only thirtyfive letters when he certainly received hundreds. During one particular sevenmonth period he was given none. Senior officials asked him to sign a receipt for letters he never saw.156 Censorship of prison correspondence must be consistent with the standard of humane treatment of detained persons.157 152 United Nations Standard Minimum Rules for the Treatment of Prisoners, A/RES/70/175, 8 January 2016, Rule 58. 153 Khadzhiev v. Turkmenistan, CCPR/C/113/D/2079/2011, 1 April 2015 [8.8]. Cf. Nasir v. Australia, CCPR/C/116/D/2229/2012, 29 March 2016 [6.5] (inability to keep in contact with the author’s family was attributable to his daughters living in a village with very limited access to a telephone, and also due to circumstances inherent to imprisonment). 154 GC 16 [8]. Violation was found in the author’s correspondence being opened and censored in Amanklychev v. Turkmenistan, CCPR/C/116/D/2078/2011, 31 March 2016 [3.4], [7.5]. 155 Pinkney v. Canada [34]. The offending regulation read: ‘2.40(b) Every letter to or from a prisoner shall (except . . . in the case of certain communications to or from a legal adviser) be read by the Warden or by a responsible officer deputed by him for the purpose, and it is within the discretion of the Warden to stop or censor any letter, or any part of a letter, on the ground that its contents are objectionable or that the letter is of excessive length.’ (There was no violation in the absence of evidence establishing that the author himself suffered as a result.) 156 Estrella v. Uruguay, CCPR/C/OP/2 at 93 (1990), 29 March 1983 [1.13], [9.2] (violation of Art. 17 read in conjunction with Art. 10(1)). See also Zaire A/42/40 (1987) 269 (examining procedures for preserving confidentiality of correspondence between detainees and their law yers); Congo CCPR/C/79/Add.118 (2000) 17 (concern at violations of secrecy of correspon dence and request that rules and procedures be drafted to guarantee the secrecy of correspondence and to punish violations of such secrecy). 157 See chapter on Article 10: Treatment of Those Deprived of Their Liberty, sections ‘Conditions of Detention and Privations’, ‘Restrictions on Communications’.

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Attacks on Honour and Reputation

Comments by Presiding Judge There was no ‘unlawful attack’ on honour and reputation in R.L.M. v. Trinidad and Tobago by remarks addressed by a judge to counsel, reminding him of his professional duties to the court and his clients.158

Accusations Followed by Court Vindication of Innocence In some circumstances remedial steps may be required to correct an unlawful attack on honour and reputation. There was a clear unlawful attack on the honour and reputation of the author in Kouider Kerrouche v. Algeria. After he reported acts of corruption and embezzlement which came to his attention in his capacity as accountant for an engineering corporation, a preliminary investigation was discontinued because of political pressure. In apparent retaliation for the author’s appeal to the president, criminal proceedings were brought against him on charges of having insulted a public official. Following his conviction he never received any redress, and had to endure a long period of unemployment due to his unjust conviction and then feared reprisals if he complained about the treatment to which he was subjected.159 A retraction of defamatory statements may go a long way towards restoring honour and reputation. Khidirnazar Allakulov v. Uzbekistan concerned an inadequate retraction of remarks by a newspaper about a university professor, accusing him of fraud. The court in which he was acquitted of fraud charges addressed a letter to the competent minister, referring to the need to restore his honour, dignity and professional reputation, following the criminal proceedings and the newspaper’s remarks. Since no action was taken, the author requested that the newspaper publish a retraction, and he successfully brought proceedings requiring one. When eventually published the retraction failed to mention the author’s name and in the same issue it carried an article criticising his acquittal. Various determinations of a court that the retraction could not be considered as implementing its decision, and orders that suitable text be substituted, were met with challenges ultimately quashing those determinations. Depriving the author of the possibility of rehabilitating his reputation, honour and dignity in these circumstances violated Article 17, read alone and in conjunction with Article 2(3).160 The case bears out the importance of the General Comment statement that States are under an obligation to provide adequate legislation to afford protection to personal honour 158 R.L.M. v. Trinidad and Tobago, CCPR/C/48/D/380/1989, 16 July 1993 [5.2]. 159 Kerrouche v. Algeria, CCPR/C/118/D/2128/2012, 3 November 2016 [8.6]. Cf. Kh.B. v. Kyrgyzstan, CCPR/C/120/D/2163/2012, 13 July 2017 [10.5] (claims that honour and dignity were attacked arbitrarily by the adoption of a parliamentary resolution, but no details provided on the consequences this had). 160 Allakulov v. Uzbekistan, CCPR/C/120/D/2430/2014, 19 July 2017 [7.6].

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and reputation, and provision must be made for everyone effectively to be able to protect against any unlawful attacks that do occur, and to have an effective remedy against those responsible.161 A court finding establishing the author’s innocence was sufficient vindication in Vargas-Machuca v. Peru. He was a commander in the Peruvian National Police and local Chief of the Police Drug Squad who was relieved of duties as a disciplinary measure following the death in custody of someone arrested for international drug trafficking. An order was issued for the author’s arrest, and he was taken to Lima, where he was forced to attend a press conference. No charges were ever brought against him, in either the ordinary or the military courts, for criminal negligence or liability in the course of his duties, or for any other criminal offence arising from the victim’s death. An official report stated that the author had failed to inform his superiors of the action he had taken against the deceased, but the author disputed this. Orders were made at the author’s instigation to reverse the measures already taken against him, but he was never reinstated to active service in the National Police with the rank of commander as ordered. The Committee found that because the domestic courts recognised the author’s innocence there was no violation of Article 17.162

Post-Rape Questioning and Treatment When a 13-year-old victim of rape in a remote village in Argentina was subjected to constant enquiries by a social worker, by medical personnel and by the domestic court into her sexual life and morality, the Committee in L.N.P. v. Argentina concluded there was an arbitrary interference with her privacy and an unlawful attack on her honour and reputation, all the more so because those enquiries were not relevant to the rape case and she was a minor.163 She was subjected to a vaginal examination to check her virginity, despite the fact that the attack she had suffered required an anal examination only. The social worker who was sent to investigate her case questioned the neighbours about her family life and her morality, thereby violating her privacy, her honour and her good name, especially in such a small community. Among other Article 14 issues she claimed that the domestic court hearing the case introduced the issue of virginity as a decisive factor in the trial which was more generally flawed by gender bias that favoured impunity. In its decision the Committee drew attention to its General Comment 28 on Article 3, where it noted that interference under Article 17 occurs when the sexual life of a woman is taken into

161 GC 16 [11]. 162 Vargas Machuca v. Peru, CCPR/C/75/D/906/2000, 22 July 2002 [7.3] (there was, however, a violation of Art. 25(c)). 163 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [13.3] [13.7].

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consideration in deciding the extent of her legal rights and protections, including protection against rape.164

False Rumours to Generate Public Aversion The source of attack on honour and reputation, as well as on the family home, in El Hojouj Jum’a et al. v. Libya was the Libyan ‘Charter of Honour’. This was a law which established the notion of collective responsibility, so that once a person was arrested under it, the members of that person’s family were deprived of public services and evicted from their homes, which were then demolished. Also, ‘those who carry out or encourage or give shelter to or defend any individual or group, activity or behaviour which can be described as treachery or heresy or corruption in any form are criminals’.165 The authors were relatives of Ashraf El-Hojouj, a Palestinian doctor who was charged with premeditated murder and of causing an epidemic by injecting 393 children in a paediatric hospital with HIV/AIDS (he was sentenced to death but later, together with the Bulgarian nurses who were his co-accused, was ultimately deported to Bulgaria as part of a prisoner exchange, and ultimately given citizenship). Following his arrest, the authors were routinely harassed, kept under surveillance, threatened and intimidated; their house was besieged by some 300 individuals, and their water and electricity supplies and telephone line were cut off. They also claimed that the authorities wilfully sought to tarnish their honour and reputation by spreading false rumours about them, in order to generate public aversion towards them. The Committee concluded that there had been multiple unlawful interferences with the authors’ privacy, family and home, as well as unlawful attacks against their honour and reputation, in violation of Article 17.166

Unreasonable Psychiatric Examination for Proceedings As already noted,167 subjecting a person to an order to undergo medical treatment or examination without their consent or against their will constitutes an interference with privacy, and may amount to an unlawful attack on their honour and reputation if, for example, it is to have them declared insane against available medical evidence.168

164 CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10 [20]. 165 Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014 [2.3]. 166 Jum’a et al. v. Libya, CCPR/C/111/D/1958/2010, 21 July 2014 [6.7]. 167 See section ‘Forced Medical and Similar Intervention’, above. 168 Bithashwiwa and Mulumba v. Zaire, CCPR/C/37/D/242/1987, 2 November 1989 [12.7]. The Art. 17 claim in Pestafto v. Philippines, CCPR/C/98/D/1619/2007, 23 March 2010 [6.6], based on the State’s false attribution of the death to suicide was inadmissible because it was not sufficiently substantiated.

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In M.G. v. Germany a domestic court ordered the author to undergo a psychiatric examination in order to assess whether she was capable of taking part in legal proceedings brought against her by her father and other family members, to compel her to stop making certain statements in the wake of her parents’ divorce. The State claimed that in view of her excessive written submissions and appeals, and all the work she had put into the case which negatively affected her health, the order served the legitimate purpose of protecting the ‘proper functioning of the judiciary’ and the author’s mental health. The Committee found that to issue such an order solely on the basis of the case file, without having heard or seen the author in person, and to base this decision merely on her procedural conduct and written court submissions, was not reasonable in the circumstances. The interference with her privacy and her honour and reputation was disproportionate to the end sought and therefore arbitrary.169

False Attribution of Authorship False attribution of authorship may constitute an unlawful attack on a person’s honour and reputation. The author in Komarovski v. Turkmenistan was a US journalist who was in the capital city Ashgabat at the time of the assassination attempt on the Turkmen president, Saparmurad Niyazov. He became a suspect, and his subsequent treatment at the hands of authorities was found to violate Articles 7, 9 and 10. The year following the assassination attempt Turkmen authorities published a book, attributing authorship to the journalist, in which he purportedly admitted his participation in the attempted assassination. He claimed that the book, which served to confirm the official version of events of that day, was a falsification aiming at eliminating the opposition movement in the country, which jeopardised his professional career as a journalist and misleadingly placed him in the eyes of Turkmen people as a devoted defender of the regime. The Committee found that falsely portraying him as the writer of the book was both unlawful interference with his privacy and an unlawful attack on his honour and reputation.170

Negative Association The Committee stressed the obligation on States to adopt legal or other measures to give effect to the prohibitions in Article 17 in Sayadi et al. v. Belgium when the names of the authors were placed on a publicly gazetted UN sanctions list (and equivalent European lists) under Security Council resolutions available on the 169 M.G. v. Germany, CCPR/C/93/D/1482/2006, 23 July 2008 [10.2] (violation of Art. 17(1), in conjunction with Art. 14(1)). Note the Dissenting Opinion of Mr Ivan Shearer who considered there was a justifiable apprehension by the court that the author might not be capable of acting in her own best interests. 170 Komarovski v. Turkmenistan, CCPR/C/93/D/1450/2006, 24 July 2008 [7.7].

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internet under the title The Consolidated List Established and Maintained by the 1267 Committee with Respect to Al-Qaida, Usama Bin Laden, and the Taliban and Other Individuals, Groups, Undertakings and Entities Associated with Them. The listing was premature since the authors were later exonerated by the criminal investigation. The Committee held the State responsible for disseminating personal information about the authors to the Sanctions Committee before the outcome of the criminal investigation. The State was not excused by its attempts to delist the authors (which failed because it did not have control over the lists). The Committee found that as a result of its actions there had been an unlawful attack on the honour and reputation of the authors in view of the negative association between their names and the title of the sanctions list. Many press articles were published casting doubt on their reputation, and they were obliged, on a regular basis, to demand the publication of a right of reply.171 The Committee did not explain in what respects the State action was ‘unlawful’.172

I M P L E M E N TAT I O N Implementation of Article 17 in domestic law is owed priority principally by virtue of the right to the protection of the law against arbitrary or unlawful interference with privacy, family, home or correspondence, and against attacks on honour and reputation. ‘[I]t is precisely in State legislation above all that provision must be made for the protection of the right.’173 Domestic law must specify in detail the precise circumstances in which such interference may be permitted.174 For example, where the State authorises the collection of personal information, whether in the regulation of particular industry sectors, or for purposes of law enforcement, or engages in mass surveillance for national security purposes, domestic law must provide for effective safeguards against abuse, it must limit the powers of use and retention, it must ensure adequate judicial supervision, and remedies for misuse. As already observed, the Committee has taken issue with countries with insufficiently clear legislation. In the case of compulsory DNA sampling, legislation must at least provide for relevant interests to be weighed, as well as other considerations such as young age, and allow adequate exceptions, combined with information about eligibility for those exceptions.175

171 Sayadi and Vinck v. Belgium, CCPR/C/94/D/1472/2006, 22 October 2008 [10.12] [10.13]. 172 In this respect note the Dissenting Opinion of Ms Ruth Wedgwood, who found there had been no ‘arbitrary’ or ‘unlawful’ interference or attacks since the only actions taken by Belgium were in accordance with the binding mandate of the Security Council. Thomas M. Callahan conducts a detailed review of findings in honour and reputation cases in the context of discussion of ‘character assassination’ in reference to Boris Nemtsov, in ‘The Right to Reputation and the Case for Boris Nemtsov’, (2016) 39 Fordham Int. L.J., p. 1289, at pp. 1338 45. 173 GC 16 [2]. 174 GC 16 [8]. 175 S.L. v. Netherlands, CCPR/C/120/D/2362/2014, 18 July 2017 [10.1] [10.11].

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The obligation to provide adequate legislation to protect personal honour and reputation was reiterated firmly in Sayadi et al. v. Belgium when the names of the authors were placed on a publicly gazetted UN sanctions list before the outcome of the criminal investigation,176 and in Allakulov v. Uzbekistan, which also reaffirmed the need for effective enforcement since the author was denied any opportunity to rehabilitate his reputation even when a retraction of negative remarks was ordered by a court.177 Lack of an adequate mechanism to enforce legal remedies was also an aspect of effective protection in L.P. v. Czech Republic, in the context of the care and custody of children.178 Laws which themselves result in Article 17 interference, even without being enforced, which cannot be justified as necessary, are susceptible to being impugned as arbitrary.179 Also of relevance and instruction to the question of implementation are the comments of the Special Rapporteur on the Right to Privacy provided to States concerning national legislation and policy.180

C O N C L US I O N The dual proscriptions against ‘unlawful’ and ‘arbitrary’ Article 17 interference or attack are independent but related. Domestic law is itself capable of being the very source of arbitrary interference. The requirement of lawfulness enables any law resorted to by a State to be scrutinised for its authorising power, and for its requisite properties. In principle, the law, and any interference provided for by law, must comply with the provisions, aims and objectives of the Covenant. Arbitrariness may be evidenced in the law itself, for example, where it is manifestly and unjustifiable discriminatory on its face or where the context discloses its lack of necessity. The concept of ‘arbitrariness’ is harnessed to the principle that any interference must accord with that principle of Covenant-consistency and at all times be reasonable in the particular circumstances. In responding to different varieties of interference the Committee has supplemented this formula with principles which both highlight the deficiencies which led to violation and identify antidotal measures. It placed particular emphasis, for example, on proportionality and necessity in matters concerning privacy (the criminalisation of certain sexual

176 177 178 179 180

Sayadi and Vinck v. Belgium, CCPR/C/94/D/1472/2006, 22 October 2008 [10.12] [10.13]. Allakulov v. Uzbekistan, CCPR/C/120/D/2430/2014, 19 July 2017 [7.6]. L.P. v. Czech Republic, A/57/40 at 294, 25 July 2002 [7.4]; GC 16 [11]. Toonen v. Australia, CCPR/C/50/D/488/1992 (1994), 31 March 1994 [8.2], [8.6]. The Special Rapporteur is mandated by Human Rights Council Resolution 28/16 adopted 26 March 2015.

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conduct in private;181 phone tapping of lawyer–client conversations,182 and registering a change of gender in official documents);183 on the pre-eminent need for effective legal and procedural safeguards in authorisation of mass surveillance, DNA sampling and forced medical treatment;184 on the inadequacy of choosing interference which produces distress and suffering when there are acceptable available alternatives;185 on arbitrariness through failure to give due consideration to the consequences of eviction;186 on the elements of ‘inappropriateness, injustice, lack of predictability and due process of law’, when faced with manifest procedural irregularity;187 on the ill-effects of certain legislation even when not accompanied by individual measures under it;188 on the need for objective justification of measures in the light of their impact, such as when altering a person’s name,189 when family separation results from deportation,190 and when determining child custody and access.191 A consistent current of reasoning emphasises the need for effective judicial supervision and remedies.192

181 182 183 184 185 186 187 188 189 190 191 192

Toonen v. Australia, CCPR/C/50/D/488/1992 (1994), 31 March 1994 [8.2]. Van Hulst v. Netherlands, CCPR/C/82/D/903/1999, 1 November 2004 [7.6] [7.8]. G v. Australia, CCPR/C/119/D/2172/2012, 2 December 2017 [7.1], [7.10]. See sections ‘Surveillance’, ‘DNA Testing’, above. L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, March 2011 [9.2] [9.3]; Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.7] [7.8]. Naidenova et al. v. Bulgaria, CCPR/C/106/D/2073/2011, 30 October 2012 [14.2] [14.7]; ‘I Elpida’ v. Greece, CCPR/C/118/D/2242/2013, 3 November 2016 [12.4], [12.8]. Al Gertani v. Bosnia and Herzegovina, CCPR/C/109/D/1955/2010, 1 November 2013 [10.8] [10.9]; Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.2]; Leghaei and Others v. Australia, CCPR/C/113/D/1937/2010, 26 March 2015 [10.4] [10.5]. Toonen v. Australia, CCPR/C/50/D/488/1992 (1994), 31 March 1994 [8.2]; Aumeeruddy Cziffra et al. v. Mauritius, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(i)3]. Raihman v. Latvia, CCPR/C/100/D/1621/2007, 28 October 2010 [8.3]. Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.8]; Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.9] [7.10]; Warsame v. Canada, CCPR/C/102/D/ 1959/2010, 21 July 2011 [8.9] [8.10]. D.T. v. Canada, CCPR /C/117/D/2081/2011 15 July 2016 [7.10]. L.P. v. Czech Republic, A/57/40 at 294, 25 July 2002 [7.3] [7.4]; D.T. v. Canada, CCPR/C/117/ D/2081/2011, 15 July 2016 [7.10].

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Article 18: Freedom of Thought, Conscience and Religion

INTRODUCTION THE INVIOLATE REALM OF ARTICLE 18 THE ‘MANIFESTATION’ OF RELIGION OR BELIEF PARENTAL AND GUARDIANSHIP RIGHTS: ARTICLE 18(4) IMPLEMENTATION CONCLUSION

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Covenant Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Comparable Provisions in Other International Instruments European Convention: Article 9. American Convention on Human Rights: Article 12. African Charter on Human and Peoples’ Rights: Article 8.

INTRODUCTION General Comment 22 opens by declaring that the ‘right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 499

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18.1 is far-reaching and profound’.1 With similar solemnity, but with particular emphasis on self-autonomy, Nowak observed that ‘freedom of thought and religion is not infrequently termed, along with freedom of opinion, the core of the Covenant, since this nucleus demonstrates that that the international Bill of Rights is based on the philosophical assumption that the individual as a rational being is master of his or her own destiny’.2 Article 18 is broad, encompassing freedom of thought on all matters, personal conviction and the commitment to religion or belief; it protects the expression of theistic, non-theistic or atheistic beliefs, as well as the right not to profess any religion or belief. It is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.3 The content of a religion or belief should be defined by the adherents themselves. In general beliefs are formed by a system of principles or philosophical consideration of life.4 The freedom comprises two discrete spheres of operation, the internal and external. The elemental and inviolable ‘internal’ aspects of freedom of thought and conscience, and to choose religion or belief, have a nuclear quality found elsewhere in the Covenant only in the right to hold opinions without interference under Article 19(1).5 Article 18(2) imbricates choice in religion or belief by an anti-coercion prohibition which only in recent years has been successfully invoked in OP1 petitions. The ‘external’ expressions of religion or belief may be enjoyed individually, collectively, privately or publicly, in all cases within the limits of Article 18(3). The right to ‘manifest’ religion or belief, illustrated more conservatively in the text of Article 18(3) than in its jurisprudence, in terms of ‘worship, observance, practice and teaching’, covers the expression of innumerable private, conscience-driven choices, as well as the public, collective practice of religion, and extends to fulfilling particular mission-oriented or humanitarian objectives. However, it does not protect religious communities from merely adverse comment.6 1 CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4 (GC 22) [1]. 2 Nowak, CCPR Commentary, p. 408. 3 GC 22 [1] [2]. 4 There are limits to what constitutes ‘belief’. In Alger v. Australia, CCPR/C/120/D/2237/2013, 13 July 2017 [6.5], the author’s claim based on his point of view that he did not have sufficient information to make a meaningful decision on who to vote for in a compulsory voting system was inadmissible as it was not based on a belief in the Art. 18 sense. 5 GC 22 [3] States that Art. 18 ‘does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19.1.’ 6 Picq v. France, CCPR/C/94/D/1632/2007, 30 October 2008 [6.3]; Goyet v. France, CCPR/C/94/ D/1746/2008, 30 October 2008 [6.3]. The authors complained of a series of hostile media reactions to their respective religious communities following publication of a parliamentary report, but their claims were inadmissible as they did not demonstrate how the reports’ publication had the purpose or effect of violating their rights.

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Religious manifestation may be limited where necessary on grounds of public safety (e.g., to require a Sikh employee to wear protective headwear instead of a turban); public order; health (a ground that supported a prohibition on possession of cannabis in spite of its sacramental use by Rastafarians); morals; or the fundamental rights and freedoms of others (to bar FGM where it forms part of religious practice inflicted involuntarily). The term necessary has considerable force, as outlined in the Introduction to this work, which describes the operation of that term in conditioning all restrictions on the exressive freedoms (the freedom to manifest religion or belief, and the freedoms of expression, assembly and association in Articles 18, 19, 21 and 22).7 It is in the nature of most belief systems that they have a minority following and many are disfavoured. Because they are often mutually exclusive of other belief systems they attract antagonism. Opposition to particular religious groups in some countries has its roots in cultural or national identity. Religion increasingly presents issues which are politically charged. Enmity towards a particular religion, or even religion in general, cannot itself justify restriction of Article 18 rights no matter how much popular support it may have; indeed, the protection of Article 18 is there precisely to protect against the harmful consequences of any animus where it exists, whether from State or private sources. Whatever the religious composition of a State, or its prevailing or popular ideology, its obligations are to secure freedom for those of any religion, those with no religion, and for those with anti-religious beliefs or convictions, to hold and practise their beliefs freely on the terms of Article 18(1) and (3). There is no bright line between Articles 18 and 19, but the diacritical marks of Article 18 are that it guarantees ‘thought, conscience and religion’ (rather than ‘opinion’), and the outward expression of ‘religion or belief’ (rather than ‘information and ideas’). Because of their different limitation provisions the ‘freedom to manifest’ religion or belief is susceptible to a narrower permissible basis of restriction than freedom of expression, and does not carry with it the ‘special duties and responsibilities’ referred to in Article 19. The freedom of thought, conscience and religion, like the freedom of opinion of expression, is both symptomatic of a healthy democratic society and essential to the pluralism associated with a modern democratic society. As the European Court famously put it: freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the [European] Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, 7 See chapter Introduction, sections ‘The Centrality of the Scope, Limitations, Qualifications and Mandated Provisions’, and ‘Certain Covenant Rights Influence and are a Source of Interpretation for Others’, above.

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a commentary on the iccpr agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.8

Interaction between Article 18 and Other Covenant Provisions Article 18 applies concurrently with numerous other Covenant provisions in various circumstances, including Article 6, where blasphemy or apostasy carry the death penalty,9 or when attacks on life are religiously motivated;10 Articles 6 and 7, when deportation would expose those returned to certain countries to real risk of loss of life or torture because of their religion;11 Article 9, in the arbitrary arrest of those from particular religious groups,12 or detention of conscientious objectors for refusing to perform compulsory military service;13 Article 10, in undue restriction of Article 18 rights of detainees in matters such as diet, access to religious texts, and wearing a beard;14 Article 12, where the criminal prohibition on wearing the fullface veil (e.g., in France) compromises freedom of movement in public,15 or restrictions are applied on access to places of worship (in Israel to non-Jews) ;16 and Article 14, if the independence of the judiciary is compromised by intimidation of judges, for example, those in Pakistan who hear blasphemy cases.17 Article 14(7) has been of particular value to conscientious objectors to military service, to prevent multiple sanctions for not obeying renewed orders

8 Kokkinakis v. Greece, App. No 14307/88, [1993] ECHR 20, [31]. For parallel dicta in the context of freedom of expression, see Handyside v. United Kingdom, App. No. 5493/72, [1976] ECHR 5 (7 December 1976) [49]. 9 E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 33; Sudan CCPR/C/SDN/CO/5 (2018) 49, 50. 10 E.g., Indonesia CCPR/C/IDN/CO/1 (2013) 17. 11 See chapter on Article 6: The Right to Life, section ‘Duty to Investigate Issues Raised’. 12 E.g., Lao CCPR/C/LAO/CO/1 (2018) 31 (arbitrary arrests of Christians (Arts 9, 18 and 26)). 13 See section ‘Compulsory Military Service’, this chapter, below. 14 GC 22 [8]: ‘Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint’; Boodoo v. Trinidad and Tobago, CCPR/C/74/D/721/1996, 2 April 2002 [6.6]; CCPR General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 10 April 1992, Adopted at the Forty fourth Session of the Human Rights Committee (GC 21) [3]. See chapter on Article 10: Treatment of Those Deprived of their Liberty, sections ‘Conditions of Detention and Privations’, ‘Denial of Religious Requirements’. For an unusual restriction on a change of religion by prisoners, see A/HRC/16/53/Add.1 (2011) [409] (the Special Rapporteur on Religion or Belief brought to the attention of the US Government rules which did not permit changes of religious designation in certain circumstances). 15 The Committee did not address Art. 12 claim in Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [3.12] and Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [3.12] because it found violations of the more immediately applicable Arts 18 and 26. 16 E.g., Israel CCPR/C/ISR/CO/3 (2010) 20 (concern at frequent disproportionate restrictions on access to places of worship for non Jews (Arts 12, 18 and 26). 17 Pakistan CCPR/C/PAK/CO/1 (2017) 33.

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to serve in the military.18 Article 15 may also be relevant to the broad legislative formulation of concepts such as ‘extremism’ used to unduly restrict freedom of religion.19 Article 18 coincides with Article 19 in bans on foreign funding for religious groups,20 restrictions on the importation and distribution of religious materials,21 and constraints on academic freedom;22 and with Article 22 in unjustified (usually discriminatory) restrictions on registering religious organisations.23 Hate crimes and hate speech are often directed at religious minorities, typically triggering the operation of Articles 18, 20, 26 and 27.24 The protection for ‘religious’ minorities in Article 27, to profess and practise their own religion, may overlap more generally with Article 18 and the non-discrimination provisions of Articles 2 and 26 where there is legal differentiation between ‘traditional’ and ‘nontraditional’ religions.25 Articles 2, 3 and 26 may be engaged simultaneously with Article 18 where university regulations prohibit particular forms of religious dress on a discriminatory basis, in a way that disproportionately burdens women. Chapter Outline The main division within this chapter is between those rights which are susceptible to no restriction at all (the ‘inner’ aspects of Article 18(1) and Article 18(2)), and those constituting the manifestation of religion or belief (to which the limitation regime of Article 18(3) applies). Parental and guardianship rights in Article 18(4), though also not subject to limitation, are considered last, in keeping with the numerical ordering of Article 18. Issues concerning implementation, spanning most aspects of this chapter are separately considered at the end.

18 E.g., Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015 [7.5]; GC 32 [55]. See chapter on Article 14: Fair Trial Rights, section ‘Article 14(7): Criminal Prosecution: Ne bis in idem (Double Jeopardy)’. 19 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 13, 14 (recommendation to ensure compliance with the principles of legal certainty and predictability); Nasheed v. Maldives, CCPR/C/122/D/ 2270/2013, 4 April 2018. See chapter on Article 15: Retroactive Criminal Law, section ‘Nulla poena sine lege certa’. 20 E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 35, 36. 21 Azerbaijan CCPR/C/AZE/CO/4 (2016) 32; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 47; Turkmenistan CCPR/C/TKM/CO/2 (2017) 38. 22 E.g., Hungary CCPR/C/HUN/CO/6 (2018) 51 (2017 changes to legislation on National Higher Education). 23 See section ‘Registration’, this chapter, below. 24 E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 33; Romania CCPR/C/ROU/CO/5 (2017) 43; Switzerland CCPR/C/CHE/CO/4 (2017) 20; Bulgaria CCPR/C/BGR/CO/4 (2018) 36. 25 E.g., Serbia CCPR/C/SRB/CO/3 (2017) 36 (legal differentiation between ‘traditional’ and ‘non traditional’ religions (Arts 2, 18 and 27)).

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T H E I N V I O L ATE R E A L M O F A RT I C L E 1 8 Freedom of Choice of Religion or Belief and Freedom from Coercion in That Choice

The Origins of Article 18(2) The terms of Article 18 of the Universal Declaration and Article 18 of the Covenant differ. The right to ‘change’ religion, found in the Universal Declaration, was debated extensively in the drafting of the Covenant. The substitute expression ‘freedom to have or to adopt a religion or belief of his choice’ was taken up to overcome objections of certain Muslim countries to an explicit right to ‘change’ religion or belief, which connoted only a right to change, rather than maintain, one’s religion.26 The Committee’s position on the right to change religion is unequivocal: the ‘freedom to “have or to adopt” a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief’.27 For the same reason that certain Muslim countries were opposed to a ‘change’ of religion (from Islam), they resisted the activities of missionaries and religious proselytisers in encouraging such a change. Article 18(2) has its origins in a twopart amendment proposed by Egypt.28 The first was to add a right ‘to maintain’ one’s religion. The second was an additional provision (which ultimately became Article 18(2)) that ‘[n]o one shall be subject to any form of coercion which would impair his freedom to maintain or to change his religion or belief’. Saudi Arabia objected that to single out a right to ‘change’ religious beliefs ‘might be interpreted as giving missionaries and proselytisers a free rein’.29 The amendment was accepted, as long as it was not given a restrictive interpretation. The Australian delegate wanted it clearly understood ‘that the expression “coercion” would not include persuasion or appeals to conscience’.30 The Lebanese delegate would support it only if it confirmed the right of others to preach and seek to influence a person either to maintain or to change religion.31 The UK delegate supported it if it could not be interpreted as imposing limitations or restrictions on argument and discussion.32 Whatever the origins of the anti-coercion provision, it cannot be 26 See Paul M. Taylor, Freedom of Religion, UN and European Human Rights Law and Practice (Cambridge University Press, 2005), pp. 24 et seq.; Linde Lindkvist, Religious Freedom and the Universal Declaration of Human Rights (Cambridge University Press, 2017), pp. 61 et seq. For an earlier European perspective, see, Carolyn Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford University Press, 2001), and more generally Malcolm Evans, Religious Liberty and International Law in Europe (Cambridge University Press, 1997). 27 GC 22 [5]. 28 E/1992 (1951), Annex 1; E/CN.4/SR.319 (1952) (Egypt). 29 A/C.3/SR.367 (1951) 124 [41] (Saudi Arabia). 30 E/CN.4/SR.319 (1952), 7 (Australia). 31 E/CN.4/SR.319 (1952), 8 (Lebanon). 32 E/CN.4/SR.319 (1952), 9 (UK).

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taken to endorse steps aimed at maintaining a person’s religion if it would impair their choice to leave.

Proselytism, Missionary Activity and Humanitarian Work Nothing in General Comment 22 readily equates proselytism with coercion; the examples it provides of coercion include restrictions on access to education, medical care and employment.33 In his famous study Arcot Krishnaswami applauded the work of missionaries and the results they have achieved in many parts of the world where children would not otherwise be educated. He acknowledged the possibility of isolated cases of improper inducements amounting even to outright bribes, but concluded that ‘where the prior right of parents or guardians to decide whether or not their children shall attend religious instruction is conceded, and where the institutions in question advance social welfare, the advantages obtained by such educational and humanitarian activities can hardly be considered to constitute a material inducement to change religion or belief’.34 The Special Rapporteur on Religion or Belief was prompted to examine the impact of missionary work following a number of complaints in the aftermath of the 2004 Indian Ocean tsunami about ‘unethical conversions’ by those offering material benefits such as food and medicine to the most poor and vulnerable. She concluded that at worst it would seem that the conduct was very disrespectful and dishonest towards the local population they were addressing, and culturally insensitive and lacking respect for the belief of Sri Lankans, but not a violation of the freedom of religion of others.35 The Special Rapporteur more commonly characterises proselytism positively, as a legitimate practice under Article 18, and has issued a reminder that restrictions on it must be justified by the State,36 with a warning against vague or overly broad legislative provisions to regulate it.37 An example of such provisions is offered by the administrative offence committed by foreigners who conducted missionary activity without registration in Kazakhstan, which caused the author in Leven v. Kazakhstan to be convicted when all he had 33 See GC 22 [5]. 34 A. Krishnaswami, Study of Discrimination in the Matter of religious Rites and Practices, E/ CN.4/Sub. 2/200/Rev. 1 (1960), 227 at 255. 35 2006/5/Add. 3 (2005), Mission to Sri Lanka [50]. For discussion on the adoption of internal codes of ethical conduct by some groups concerning missionary activities, see interim report at A/67/ 303 (2012) [29]. 36 A67/303 (2012) [28] (general provisions against ‘proselytism’, a term that often remains undefined or merely vaguely circumscribed while typically carrying negative connotations would not suffice to meet the criteria prescribed in Art. 18(3)). See also A/HRC/28/66/Add.1 (2014) [20] (Kazahkstan country visit) for the application of such disciplines. 37 A67/303 (2012) [46]: ‘vague and overly broad definitions of “proselytism”, “unethical conver sion” and related “offences” may create an atmosphere of insecurity in which law enforcement agencies can restrict acts of religious communication in an arbitrary manner . . . However, in view of the right to try to convert others by means of non coercive persuasion, registration should not be a precondition for practising one’s religion or belief, including through missionary activities.’

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done was participate in his church by preaching, praying and conducting meetings. Consistent with General Comment 22, the Committee considered these activities simply formed part of his right to manifest his beliefs.38 The Committee has shown consistent support for proselytism and missionary activities, expressing concern at the criminalisation of such practices,39 as well as less invasive restrictions on them.40 It recognised in Sister Immaculate Joseph et al. v. Sri Lanka that it is a central tenet of many faiths to spread knowledge, to propagate their beliefs to others and to provide assistance within the protected scope of Article 18(1), and for authority that this was within Article 18 it relied on Article 6 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,41 which refers to ‘the right to establish and maintain appropriate charitable or humanitarian institutions’. Article 18(1) was violated because a domestic court did not allow incorporation of a religious order in the light of its missionary objectives, because (in the words of that court) this ‘would necessarily result in imposing unnecessary and improper pressures on people, who are distressed and in need, with their free exercise of thought, conscience and religion with the freedom to have or to adopt a religion or belief of his choice’, contrary to Sri Lanka’s Constitution.42

Coercion The Committee’s decision in Hudoyberganova v. Uzbekistan represents an important development, signalling greater readiness to find violation of the unrestricted realm of Article 18. It concerned the enforcement of university regulations to exclude a student for refusing to remove the ‘hijab’ which she wore in accordance with her beliefs. The Committee could have approached this on the basis of religious manifestation since, as it acknowledged, the freedom to manifest religion encompasses the right to wear religious dress in public. Instead, it found a violation of Article 18(2), relying on the remark in its General Comment that policies or practices having the same intention or effect as direct coercion, such as 38 Leven v. Kazakhstan, CCPR/C/112/D/2131/2012, 21 October 2014 [9.2]. On the subject of subjecting religious practice to registration, see also E/CN.4/2005/61 (2004) [55] [58]; A/61/ 340 (2006) [52] [54]; A/HRC/19/60 (2011) [41] [44]. Note also Belarus CCPR/C/BLR/CO/5 (2018) 45 (permission required by foreign citizens for participation in religious activities (Arts 18 and 26)). 39 E.g., Iran CCPR/C/IRN/CO/3 (2011) 23; Armenia CCPR/C/ARM/CO/2 (2012) 24; Sudan CCPR/C/SDN/CO/5 (2018) 49. See also Bahrain CCPR/C/BHR/CO/1 (2018) 51 (restrictions on their right to ‘profess’ religious beliefs). 40 E.g., Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 22; Uzbekistan CCPR/C/UZB/CO/4 (2015) 22. 41 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55. 42 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [2.2], [7.2]. The Committee’s sensitivity to this issue is evident in its observation directed to the USSR that where legislation expressly authorised atheistic propaganda, it appeared by implication not to allow the propagation of religious beliefs: USSR A/40/40 (1985) 300.

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those restricting access to education, are inconsistent with Article 18(2).43 The university informed the author’s father that she was in touch with a dangerous religious group, and that her activities (in continuing to wear her headdress) showed that she belonged to an extremist organisation of Wahabis. She was told that if she changed her mind about the hijab, the order excluding her from the university would be annulled. Not long before Hudoyberganova, in a very clear case of coercion concerning non-religious belief in Kang v. Korea the Committee avoided an Article 18(2) finding after the author was subjected to the State’s ‘ideology conversion system’. It instead focused on the State’s failure to justify use of that system for any permissible limiting purpose under Article 18 or 19. The author was held in solitary confinement for thirteen years for distributing dissident publications on numerous sensitive issues, he was classified as a Communist and was denied parole unless he ‘converted’. It is difficult to imagine a more palpable form of coercion. The Committee accepted the coercive nature of such a system (and in the ‘oath of law-abidance system’ which replaced it) yet it avoided Article 18(2) and instead found a violation of Articles 18(1) and 19(1), both in conjunction with Article 26, because the system was applied in discriminatory fashion with a view to altering his political opinion (by offering inducements of preferential treatment while in prison and improved possibilities of parole). It restricted freedom of expression, and of manifestation of belief, on the discriminatory basis of political opinion.44 The avoidance of Article 18(2) may be explained in terms of a preference for a common approach to Articles 18 and 19 when there was no available counterpart to Article 18(2) to invoke under Article 19. Compulsory Military Service The right to conscientious objection to military service has long been recognised.45 For many years the Committee somewhat artificially found 43 Hudoyberganova v. Uzbekistan, CCPR/C/82/D/931/2000, 5 November 2004 [6.2]. For a finding of coercion in religious choice under the European Convention, see Ivanova v. Bulgaria, App. No. 52435/99, (ECHR, 12 April 2007). For Committee concern at restrictions with potentially coercive effect, see, e.g., Jordan CCPR/C/JOR/CO/5 (2017) 28 (restrictions on freedom of religion include those that prevent the marriage of or deny inheritance rights to those who renounce Islam); Algeria CCPR/C/DZA/CO/4 (2018) 41 (the conditions and rules governing non Muslim worship, which criminalised certain activities, could cause individuals to renounce the Muslim faith). 44 Yong Joo Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.2]. 45 GC 22 [11]. For recent General Assembly resolutions concerning conscientious objection to military service, see A/HRC/RES/20/2 of 16 July 2012, A/HRC/RES/24/17 of 27 September 2013; for reports on conscientious objection to military service, see E/CN.4/ 2004/55 (2004), E/CN.4/2006/51 (2006), A/HRC/4/67 (2007), A/HRC/9/24 (2008), A/HRC/23/ 22 (2013), A/HRC/35/4 (2017). For detailed discussion of the right to conscientious objection developed before 2008, see Hitomi Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Springer, 2008).

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violations of Article 18 in the conviction and sentencing of conscientious objectors for refusing the universal draft, on the basis that this unjustifiably restricted their ability to manifest their religion or belief. For example, in Yoon and Choi v. Korea the Committee prefaced its finding with the observation that while the right to manifest one’s religion or belief did not imply the right to refuse all obligations imposed by law, it provided a certain protection against being forced to act against genuinely held religious belief. On whether any restriction on this right was ‘necessary’, it observed that an increasing number of the States with mandatory military service had introduced alternatives, and Korea had failed to show what special disadvantage it would suffer if the rights of the authors under Article 18 were to be fully respected. The Committee responded to the contention that this was necessary for public safety, in order to maintain its national defensive capacities and to preserve social cohesion, by stating that respect on the part of the State for conscientious beliefs and their manifestation was itself an important factor in ensuring cohesive and stable pluralism in society. It was not only possible, but in practice common, to conceive of viable alternatives that supported the aims of universal conscription while making equivalent demands on the conscientious objector, in such a way as to eliminate unfair disparities with those undertaking military service.46 It was not until Jeong et al. v. Korea that the Committee fundamentally switched its position, favouring findings of violation of the inner aspect of Article 18(1), rather than the unjustified restriction on external manifestation. By way of preamble it commented: Although the Covenant does not explicitly refer to a right of conscientious objection, the Committee considered that such a right derives from Article 18, inasmuch as the obligation to be involved in the use of lethal force may seriously conflict with the freedom of conscience. The right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if this cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion. A State may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside the military sphere and not under military command. The alternative service must not be of a punitive nature. It must be a real service to the community and compatible with respect for human rights.47

It was uncontested that the authors’ religious beliefs were genuinely held and that their refusal to be drafted derived from those beliefs. The Committee found that their conviction and sentence for refusing military service amounted to an

46 Yoon and Choi v. Korea, CCPR/C/88/D/1321 1322/2004, 3 November 2006 [8.4]; Eu min Jung et al. v. Korea, CCPR/C/98/D/1593 1603/2007 (2010), 23 March 2010 [8.4]. 47 Jeong et al. v. Korea, CCPR/C/101/D/1642 1741/2007, 24 March 2011 [7.3].

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infringement of their freedom of conscience, in breach of Article 18(1), adding that ‘repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibit the use of arms, is incompatible with article 18, paragraph 1’.48 Three dissenting Committee members preferred to maintain the earlier treatment of the refusal as a direct expression of religious beliefs, capable of limitation under Article 18(3).49 The majority approach in finding violation of Article 18(1) immune from limitation was confirmed in similar circumstances and by similar rationale in Atasoy and Sarkut v. Turkey.50 Four Committee members still advocated the old approach.51 They accepted that paragraph 3 of General Comment 22 treats freedom of conscience, in contrast to freedom to manifest religion or belief, unconditionally and insusceptible of any limitations whatsoever, but they could not see why conscientious objection to military service should be treated as if it were an instance of the absolutely protected right to hold a belief, nor how it differed from other claims to exemption on religious grounds from legal obligations. Sir Nigel Rodley, supported by two other members, explained his support for the new approach. The distinguishing feature of the military context is that it may be necessary to deprive another human being of life (a point separately endorsed by Fabían Salvioli). Other situations of conscientious objection, such as refusal to pay that part of a tax bill attributable to military expenditure, do not result in such self-evident complicity in the deprivation of another’s life: ‘[t]he right to refuse to kill must be accepted completely. That is why Article 18, paragraph 3, is the less appropriate basis for the Committee’s decision.’52 Fabían Salvioli reviewed at some length the developing recognition of conscientious objection within the Committee and concluded that it is precisely because freedom of thought, conscience and religion is inherent in conscientious objection to compulsory military service that the matter cannot be dealt with under Article 18(3).53 In his Individual Opinion in Atasoy and Sarkut v. Turkey Sir Nigel was also sensitive to the principle that every one is entitled to refuse to disclose their religion or belief (which General Comment 22 confirms is derived from Articles 18(2) and 17),54 but he felt that disclosing beliefs was the cost of avoiding being put in a position of having to deprive another person of life. 48 Jeong et al. v. Korea [7.4]. The ‘repression of the refusal to be drafted’ formula continues to be applied: e.g. Matyakubov v. Turkmenistan, CCPR/C/117/D/2224/2012, 14 July 2016 [7.8]. 49 Concurring Opinion of Yuji Iwasawa, Gerald L. Neuman and Michael O’Flaherty in Jeong et al. v. Korea. 50 Atasoy and Sarkut v. Turkey, CCPR/C/104/D/1853 1854/2008, 29 March 2012 [10.5]. 51 Individual Opinion of Committee member Gerald L. Neuman, jointly with members Yuji Iwasawa, Michael O’Flaherty and Walter Kälin (concurring) in Atasoy and Sarkut v. Turkey. 52 Individual Opinion of Committee member Sir Nigel Rodley, jointly with members Krister Thelin and Cornelis Flinterman (concurring) in Atasoy and Sarkut v. Turkey. 53 Individual Opinion by Committee member Fabían Omar Salvioli (concurring) [13] in Atasoy and Sarkut v. Turkey. 54 GC 22 [3].

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The Committee’s majority view was further cemented in Jong-nam Kim et al. v. Korea. The Committee noted that: freedom of thought, conscience and religion embraces the right not to declare, as well as the right to declare, one’s conscientiously held beliefs. Compulsory military service without possibility of alternative civilian service implies that a person may be put in a position in which he or she is deprived of the right to choose whether or not to declare his or her conscientiously held beliefs by being under a legal obligation, either to break the law or to act against those beliefs within a context in which it may be necessary to deprive another human being of life.55

More recently in Young-kwan Kim and Others v. Korea the State objected to the development of this line of reasoning because it could be extended to justify the refusal to pay taxes or to resist mandatory education. The Committee replied that the distinguishing feature of military service, unlike compulsory schooling and payment of taxes, is that it implicates individuals in a self-evident level of complicity with a risk of depriving others of life.56 The principle that ‘repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18(1)’ is now firmly embedded within the Committee’s jurisprudence.57 It is now much more likely that the Committee would seriously test any State’s assessment that an author did not have an ‘insurmountable objection of conscience to military service . . . because of the use of violent means’, which the Committee somewhat superficially accepted in Paul Westerman v. Netherlands, leading it to find there was no violation in sanctions imposed for the author’s refusal to obey military orders after his application to be recognised as a conscientious objector was refused. (The unorthodox articulation of the author’s assertion of conscience may also not have aided his cause (‘the nature of the military is in conflict with the moral destination of man’).)58 55 Jong nam Kim et al. v. Korea, CCPR/C/106/D/1786/2008, 25 October 2012 [7.3]. 56 Young kwan Kim and Others v. Korea, CCPR/C/112/D/2179/2012, 15 October 2014 [7.3]. 57 Among numerous recent examples, see Abdullayev v. Turkmenistan, CCPR/C/113/D/2218/2012, 25 March 2015; Hudaybergenov v. Turkmenistan, CCPR/C/117/D/2222/2012, 29 October 2015; Japparow v. Turkmenistan, CCPR/C/115/D/2223/2012, 29 October 2015; Aminov v. Turkmenistan, CCPR/C/117/D/2220/2012, 14 July 2016; Matyakubov v. Turkmenistan, CCPR/ C/117/D/2224/2012, 14 July 2016; Yegendurdyyew v. Turkmenistan, CCPR/C/117/D/2227/2012, 14 July 2016; Nasyrlayev v. Turkmenistan, CCPR/C/117/D/2219/2012, 15 July 2016; Nurjanov v. Turkmenistan, CCPR/C/117/D/2225/2012, 15 July 2016; Uchetov v. Turkmenistan, CCPR/C/ 117/D/2226/2012, 15 July 2016; Durdyyev v. Turkmenistan, CCPR/C/124/D/2268/2013, 17 October 2018 [7.4]. 58 Westerman v. Netherlands, CCPR/C/67/D/682/1996, 13 December 1999 [3.2], [9.5]. See Individual Opinions (dissenting) by Committee members P. Bhagwati, L. Henkin, C. Medina Quiroga, F. Pocar and M. Scheinin, and by H. Solari Yrigoyen, emphasising that there should be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs.

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In reviewing State reports, the Committee has consistently raised as a concern the absence of alternatives to compulsory military service;59 it has enquired about the period of alternative service, with recommendations to reduce excessive duration when compared with military service, or otherwise to avoid it having punitive character;60 and to prevent repeated punishment of conscientious objectors in violation of the principle of ne bis in idem.61 It has recommended immediate release, with a clean record, of those sentenced to imprisonment.62 It has expressed concern that exemption has extended only to certain religious groups or individuals,63 such as those who have taken holy orders,64 or who can pay an exemption fee.65 It has been concerned when the right can be exercised only in advance of conscription,66 and expressed regret where the right was acknowledged only in peacetime,67 or was unavailable for those in rural areas.68 It has recommended that the grounds and eligibility for performing alternative service be clarified,69 that assessment of applications for conscientious objector status be under the control of civilian authorities,70 and that recommendations on such applications be made fully independently, in hearings with a right to appeal.71 Conscientious Objection in Other Contexts Outside the military context the question of available alternatives for conscientious objectors was posed in an interesting way in Yachnik v. Belarus, over the documentation required when applying for a pension. The Committee 59 E.g., Kyrgyzstan CCPR/CO/69/KGZ (2000)18; Azerbaijan CCPR/CO/73/AZE (2001) 21; Dominican Republic CCPR/CO/71/DOM (2001) 21; Chile CCPR/C/CHL/CO/5 (2007) 13; San Marino CCPR/C/SMR/CO/2 (2008) 15; Colombia CCPR/C/COL/CO/6 (2010) 22; Mexico CCPR/C/MEX/CO/5 (2010) 19; Kuwait CCPR/C/KWT/CO/2 (2011) 22; Turkey CCPR/C/TUR/CO/1 (2012) 23; Turkmenistan CCPR/C/TKM/CO/1 (2012) 16; Bolivia CCPR/ C/BOL/CO/3 (2013) 21; Tajikistan CCPR/C/TJK/CO/2 (2013) 21; Chile CCPR/C/CHL/CO/6 (2014) 24. 60 E.g., Cyprus CCPR/C/79/Add.39 (1994) 10; France CCPR/C/79/Add.80 (1997) 19; Cyprus CCPR/C/79/Add.88 (1998) 17; Estonia CCPR/CO/77/EST (2003) 15; Latvia CCPR CCPR/ CO/79/LVA (2003) 15; Finland CCPR/CO/82/FIN (2004) 14; Lithuania CCPR/CO/80/LTU (2004) 17; Poland CCPR/CO/82/POL (2004) 15; Russian Federation CCPR/C/RUS/CO/6 (2009) 23; Austria CCPR/C/AUT/CO/5 (2015) 33. 61 E.g., Korea CCPR/C/KOR/CO/3 (2006) 17; Israel CCPR/C/ISR/CO/3 (2010) 19; Greece CCPR/ C/GRC/CO/2 (2015) 37. 62 Korea CCPR/C/KOR/CO/4 (2015) 45. 63 E.g., Kyrgyzstan CCPR/CO/69/KGZ (2000) 18; Ukraine CCPR/C/UKR/CO/6 (2006) 12; Uzbekistan CCPR/C/UZB/CO/3 (2010) 26; Finland CCPR/C/FIN/CO/6 (2013) 14; Greece CCPR/C/GRC/CO/2 (2015) 37. 64 Kazakhstan CCPR/C/KAZ/CO/1 (2011) 23. 65 E.g., Syria CCPR/CO/84/SYR (2005) 11; Mongolia CCPR/C/MNG/CO/5 (2011) 23. 66 France CCPR/C/79/Add.80 (1997) 19. 67 Finland CCPR/CO/82/FIN (2004) 14. See also Morocco CCPR/CO/82/MAR (2004) 22 (com pulsory military service was a fall back applicable only when not enough professional soldiers could be recruited and the right to conscientious objection was not recognised). 68 Paraguay CCPR/C/PRY/CO/2 (2006) 18. 69 Lithuania CCPR/CO/80/LTU (2004) 17. 70 Greece CCPR/C/GRC/CO/2 (2015) 38. 71 Israel CCPR/C/ISR/CO/4 (2014) 23.

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declared inadmissible the author’s claims that the denial of a pension violated Articles 18 and 26 as a result of her religiously motivated refusal to obtain a new-style passport, which she was required to present in order to receive her pension. She refused to apply for a passport because she considered that the State’s assignment of a number to her in the document contradicted her religious beliefs as a devout Orthodox Christian since it equated an individual, created in the image of God, with a soulless object. Replacing her name with a number carried anti-Christian symbolism. The communication was inadmissible because she failed to demonstrate that other documentary evidence would not suffice.72 The dissenting members would have preferred a merits decision, with the onus on the State to explain why alternative forms of identity would not be appropriate. They would have found a violation in view of the disregard the State showed for her religious convictions when warning that if she did later submit the required documents, her pension would only be paid prospectively.73 As far as religion in the workplace is concerned, in his 2014 interim report the Special Rapporteur on Religion or Belief addressed workplace diversity and recommended measures of ‘reasonable accommodation’ to overcome conscience-based religious discrimination, modelled on the Convention on the Rights of Persons with Disabilities, for example, to accommodate the requirements of particular faiths, be it to attend Friday worship or not to work on a Saturday or Sunday.74 Proceeding on the basis that ‘there can be no doubt that the freedom to manifest one’s religion or belief without discrimination also applies in the workplace’,75 among his conclusions were that labour contracts may limit some manifestation of an employee’s religion or belief but cannot amount to a general waiver of this right in the workplace. He pointed out that, against a widespread misunderstanding, the purpose of reasonable accommodation is not to ‘privilege’ religious or belief-related minorities, at the expense of the principle of equality. Equality must always be conceived of as diversity-friendly. Measures of reasonable accommodation should be appreciated as instruments of translating the principle of equality into different social contexts.76 He recommended that policymakers, legislators and judges should treat claims of reasonable accommodation as an important part of combating indirect discrimination based on religion or belief.77 Public and private 72 Yachnik v. Belarus, CCPR/C/111/D/1990/2010, 21 July 2014 [8.4]. 73 Joint Dissenting Opinion of Committee members Gerald L. Neuman and Yuval Shany [5]. See also Singh v. France, CCPR/C/108/D/1928/2010, 26 September 2013, concerning a Sikh’s objection to the requirement that a passport identity photograph show him bare headed, which the Committee concluded was not necessary or proportionate under Art. 18(3). 74 A/69/261 (2014) [46] [48]. 75 A/69/261 (2014) [67]. 76 A/69/261 (2014) [72]. 77 A/69/261 (2014) [78].

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employers were encouraged to develop policies of reasonable accommodation of religious or belief diversity at the workplace in order to prevent or rectify situations of indirect discrimination and to promote diversity and inclusion.78 (The issue of conscientious objection has also been addressed in a number of resolutions of the Parliamentary Assembly of the Council of Europe.79) The Committee has touched on issues of compulsion against conscience (directly or indirectly, and without always using the language of ‘conscience’), for example, with Rwanda, expressing concern for the position of Jehovah’s Witnesses who refuse to sing the national anthem or take an oath holding the national flag;80 Costa Rica, enquiring what oath an atheist was required to take upon appointment as a public official, in the light of a constitutional provision which contemplated a Catholic oath;81 Ireland, when expressing concern that judges were required to take a religious oath;82 Israel, out of concern at the lack of civil marriage and civil burial ceremonies for those not belonging to a religion;83 Bahrain, because the liberty of conscience of members of the Shia community was not effectively guaranteed;84 in the case of Algeria it expressed concern at allegations of attacks, acts of intimidation and arrests targeting those who did not fast during Ramadan;85 and inevitably the Criminal Code provisions in Morocco which criminalised ‘actions contrary to the Muslim religion’ were bound to cause issues of conscience for many who contravened them.86

78 A/69/261 (2014) [81]. 79 See Council of Europe, Parliamentary Assembly Resolution 1763 (2010) (‘The Right to Conscientious Objection in Lawful Medical Care’), Resolution 1743 (2010) (‘Islam, Islamism and Islamophobia in Europe’), Resolution 1887 (2012) (‘Multiple Discrimination against Muslim Women in Europe: For Equal Opportunities’). For broader discussion, see Javier Martinez Torron, ‘Conscientious Objections: Protecting Freedom of Conscience Beyond Prejudice’, in Silvio Ferrari (ed.), Routledge Handbook of Law and Religion (Routledge, 2015), p. 195; Ian Leigh, ‘The Legal Recognition of Freedom of Conscience as Conscientious Objection: Familiar Problems and New Lessons’, in Rex Adhar (ed.), Research Handbook on Law and Religion (Edward Elgar, 2018), p. 378. The ODIHR Guidelines for Review of Legislation Pertaining to Religion or Belief also contain some brief coverage of exemptions at 22 24 (to assist in the analysis of laws and draft legislation). 80 Rwanda CCPR/C/RWA/CO/4 (2016) 37. 81 Costa Rica A/35/40 (1980) 347 348. For European Court decisions concerning oath swearing, see Buscarini and Others v. San Marino, App. No. 24645/94, ECHR (18 February 1999); Dimitras and Others v. Greece, App. Nos 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08, ECHR (3 June 2010); Dimitras and Gilbert v. Greece, App. No. 36836/09, ECHR (2 October 2014). 82 Ireland CCPR/C/79/Add.21 (1993) 15. For conscience issues in oath taking on taking public office, see chapter on Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service, section ‘Without Any of the Distinctions Mentioned in Article 2’. 83 Israel CCPR/C/79/Add.93 (1998) 29. See also Romania CCPR/C/ROU/CO/5 (2017) 43 (concern at obstacles to religious freedom by national minorities, such as conducting burials in accordance with their faith and in some cases gaining access to burial (Arts. 18 and 27)). 84 Bahrain CCPR/C/BHR/CO/1 (2018) 51, 52. 85 Algeria CCPR/C/DZA/CO/4 (2018) 41. 86 Morocco CCPR/C/MAR/CO/6 (2016) 39.

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T H E ‘ MANIFESTAT ION ’ O F R E L IG IO N O R B E L I E F Scope of the Freedom to Manifest Religion or Beliefs General Comment 22 identifies a broad range of acts within the freedom ‘to manifest religion or belief in worship, observance, practice and teaching’. It spans aspects of external practice which are private as well as public, individual and collective, as well as some which are distinctly organisational in character. To one degree or other they all involve religious expression in accordance with belief: The concept of worship, extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including building places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.87

Article 6 of the 1981 Declaration enlarges upon the collective and organisational aspects of the freedom, affirming the following: (a) to worship or assemble in connexion with a religion or belief, and to establish and maintain places for these purposes; (b) to establish and maintain appropriate charitable or humanitarian institutions; (c) to make, acquire and use to an adequate extent the necessary Articles and materials related to the rites or customs of a religion or belief; (d) to write, issue and disseminate relevant publications in these areas; (e) to teach a religion or belief in places suitable for these purposes; (f) to solicit and receive voluntary financial and other contributions from individuals and institutions; (g) to train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; (h) to observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief; and (i) to establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.88 87 GC 22 [4]. 88 Article 7 requires these and other freedoms in the Declaration to ‘be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and

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In Sister Immaculate Joseph et al. v. Sri Lanka the Committee relied on the 1981 Declaration when interpreting the scope of religious manifestation under Article 18.89 It would appear that the Committee does not follow the narrow approach of the former European Commission and European Court under Article 9 of the European Convention in requiring a particular nexus between beliefs and their manifestation first voiced in Arrowsmith v. United Kingdom.90 Terms of Limitation Article 18(3) has much in common with equivalent limitation provisions in Articles 19, 21 and 22 by rendering the freedom to manifest religion or belief ‘subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. The first distinguishing feature of Article 18 from such provisions is that under Article 4(2) it is non-derogable. No derogation may be made from Article 18, even temporarily, in times of officially proclaimed public emergency threatening the life of the nation. This includes times of armed conflict. It does not simply prevent discriminatory measures being taken solely on religious or other grounds in such circumstances, since that is separately prohibited in Article 4(1). Article 4(2) prohibits derogation from all aspects of Article 18, not just some.91 Issues of derogation and limitation in any event are separate: a State may not under any circumstances avoid its obligations under Article 18 in times of public emergency; if it does restrict the right to manifest religion or belief it must justify its actions by reference to the terms of Article 18(3), even in such extreme conditions.92 The external aspects of Article 18 are therefore immediately distinguishable from the freedoms in Articles 19, 21 and 22 in this respect. Article 18(3) refers to the ‘fundamental’ rights and freedoms of others, which is a stricter qualification missing from equivalent limitation text in Articles 19(3), 21 and 22(2). Nowak imported significance to the addition of the word ‘fundamental’ when commenting that by contrast to Article 18, the ‘rights and freedoms of others’ in Article 12(3) means ‘e contrario that restrictions on freedom of movement are permissible in the interest of all

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freedoms in practice’. The Declaration has been interpreted since 1986 by the mandate of the Special Rapporteur. For a thematic study co authored by a former Special Rapporteur, see Heiner Bielefeldt, Nazila Ghanea Hercock and Michael Wiener, Freedom of Religion or Belief: An International Law Commentary (Oxford University Press, 2016). Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [7.2]. Arrowsmith v. United Kingdom, App. No. 7050/75 (1978) 19 D&R 5. For a comparison of the UN and European approaches, see Taylor, Freedom of Religion, pp. 210 22. Cf. Art. 19 (only the right to hold opinions is non derogable). See General Comment No. 29, States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (2001) [7].

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rights of others, i.e., not only their constitutional rights or the rights guaranteed in the Covenant’.93 In both Article 18 and 19 the requirement that limitations be ‘necessary’ does not include the additional reference to ‘a democratic society’ in spite of a proposal to include it in Article 18.94 In view of the drafting history Alexandre Kiss suggests that this omission from both Article 18 and 19 may reflect the feeling that these rights are so sacrosanct that it was undesirable to stress that democratic societies are entitled sometimes to limit them.95 He concluded that in addition to applying a restrictive interpretation to limitations, and requiring adequate legal justification, limitations must also be acceptable in the specific political context which has been defined as a ‘democratic society’. This ‘recognizes the principle that government is limited by the concept of human rights, and that even the good of the majority or the common good of all does not permit certain invasions of individual autonomy and freedom’.96 Disciplines Applicable to Limitation Paragraph 8 of General Comment 22 provides a neat synopsis of the principles by which Article 18(3) is to be interpreted and applied. It is frequently cited by the Committee when examining the necessity of restrictions under Article 18(3):97 States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in Articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in Article 18. The Committee observes that paragraph 3 of Article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.98

Put simply, a restriction may be applied only on the particular grounds stated in Article 18(3), in a way that is non-discriminatory, that avoids vitiating any Article 18 rights, that accords with a strict construction of the terms of Article 18(3), and is ‘necessary’ in the sense of being directly related to and proportionate to the specific need for which it is invoked. A more detailed exposition of principles of 93 Nowak, CCPR Commentary, p. 280 (emphasis in the original). 94 A/2929 Ch.VI (1955), pp. 48 49 [113]. 95 See chapter on Article 21: Freedom of Assembly, section ‘Necessary in a Democratic Society’; Kiss, ‘Permissible Limitations on Rights’, pp. 306 and fn. 67, 490. 96 Kiss, ‘Permissible Limitations on Rights’, p. 309. 97 E.g., Leven v. Kazakhstan, CCPR/C/112/D/2131/2012, 21 October 2014 [9.3]. 98 GC 22 [8].

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necessity was given subsequently in the Committee’s General Comment 27 on freedom of movement,99 which may be taken to apply equally under Article 18 since it has been adopted for the purposes of freedom of expression,100 with the qualification already noted concerning the ‘fundamental’ rights and freedoms of others in Article 18(3). General Comment 27 is particularly valuable in pointing out that ‘[r]estrictive measures . . . must be the least intrusive instrument amongst those which might achieve the desired result . . . and . . . [t]he principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law’.101 General Comment 27 also expresses the general principle that in adopting laws providing for permitted restrictions States should always be guided by the principle that the restrictions must not impair the essence of the right; and the relation between right and restriction, between norm and exception, must not be reversed.102 Grounds of Limitation The stated grounds of limitation are discussed under separate headings for convenience but inevitably overlap.

Public Safety The author in Singh Bhinder v. Canada argued that the risks resulting from his choice to wear a turban rather than a protective helmet in a designated ‘hard hat’ work area did not satisfy the test of necessity to protect ‘public’ safety since the risk of doing so was confined only to himself. This was the first occasion on which the Committee ruled on this ground of limitation under Article 18 and in the briefest possible terms it found no violation, whether approached under Article 18(3) or under Article 26.103 It does not represent the clearest authority and certainly does not exemplify the disciplines just mentioned. A more contemporary approach (though one predating General Comment 27) is reflected in Singh v. France brought by a Sikh who was required to appear bareheaded in his identity photograph, like everyone else in his position with permanent French residence. The State maintained that a uniform approach eased administration (because officials did not have to make individual assessments of 99 CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9 (GC 27) [14] and [15]. 100 General Comment No. 34: Article 19 (Freedom of Opinion and Expression), 12 September 2011, CCPR/C/GC/34 (GC 34). 101 GC 27 [14] and [15], adopted at GC 34 [34]. 102 GC 27 [13], adopted in GC 34 [21]. See also A67/303 (2012) (interim report of the Special Rapporteur) the relationship between a freedom and its possible limitation is one of rule and exception. 103 Karnel Singh Bhinder v. Canada, CCPR/C/37/D/208/1986, 9 November 1989 [6.2].

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whether different types of headgear overly obscured the face). Its objective was to minimise the risk of fraud or falsification of residence permits, in order to protect ‘public order and public safety’. The Committee found the requirement was not ‘necessary’, within the Article 18(3) meaning, in the absence of an explanation why it would be more difficult to identify the author depicted wearing a turban, since he wore it all the time. Nor did the State explain how, specifically, identity photographs in which people appear bareheaded helped to avert the risk of fraud or falsification of residence permits. This is a good example of the Committee requiring specific justification based on each stated reason for limitation. Even though the State tried to characterise posing bareheaded as a one-time requirement, the Committee pointed out that it would potentially interfere with the author’s freedom of religion on a continuing basis because he would always appear without his turban and, to match his photograph, could be compelled to remove it during identity checks.104 At the heart of the complaint by members of the Vaishnava community in Malakhovsky v. Belarus were burdensome registration formalities for it to become a ‘religious association’, which would then permit it to do such things as establish monasteries, religious congregations, religious missions and spiritual educational institutions, and invite foreign clerics to visit the country for the purposes of preaching or conducting other religious activity. The authors submitted their application and there then followed a series of exchanges in which the application was returned with directions that successive changes be made to it. This prolonged the process over a year instead of the requisite one-month period, and even then a decision was only made because of legal proceedings which forced the decision. The application was ultimately refused because the legal address provided was a residential address (even though this aspect of the application had previously been approved). The legal address was required to be approved for a range of the association’s functions, not simply those needed to record its establishment. The Committee accepted that a religious association’s right to carry out its religious activities may be predicated on its use of premises that satisfy public health and safety standards relevant to those activities, but it found a violation of Article 18 here because the State failed to explain why it was necessary, simply in order to register a religious association, that it have an approved legal address that not only met the standards required for the administrative seat of the association but also those necessary for religious ceremonies, rituals and other group undertakings. Premises for non-administrative use (i.e., ceremonial or collective use) could be acquired after registration. The Committee also noted the disproportionate impact of being denied legal status as a religious association in that it could not undertake the functions already outlined.105 104 Ranjit Singh v. France, CCPR/C/102/D/1876/2009 (2011), 22 July 2011 [8.4]. 105 Malakhovsky and Pikul v. Belarus, CCPR/C/84/D/1207/2003, 26 July 2005 [7.4] [7.6] (the Committee did not address the Art. 22 claim).

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Two recent cases against France, Sonia Yaker v. France and Miriana Hebbadj v. France, concern the criminal prohibition in France, affecting those who wear the niqab, of concealing the face in public areas. Appealing to ‘public order’ and ‘public safety’ grounds, the State argued that it must be possible to identify all individuals when necessary to avert threats to the security of persons or property and to combat identity fraud. This failed because the prohibition was not limited to situations requiring individuals to reveal their faces in specific circumstances of a risk to public safety or order, or for identification purposes contexts, but applied comprehensively in public at all times. The State also needed to demonstrate how wearing the full-face veil in itself represented a threat to public safety or order that would justify such an absolute ban. There was no explanation why covering the face for certain religious purposes (i.e., by wearing the niqab) was prohibited while covering the face for other purposes, such as sporting, artistic, and other traditional and religious purposes, was allowed. The Committee expected the State to describe, which it did not do, how there was a specific and significant threat to public order and safety. Nor did it address (for any ground relied on) the question of proportionality (particularly in view of the considerable impact of denying a woman the wearing of the full-face veil) or attempt to demonstrate that the ban was the least restrictive measure necessary to ensure the protection of the freedom of religion or belief. In answering the State’s reliance on ‘the fundamental rights and freedoms of others’ the Committee required identification of the specific fundamental rights affected, and the persons affected. Article 18(3) exceptions are to be interpreted strictly and not applied in the abstract.106

Public Order The Committee’s comparatively early admissibility decision in Coeriel and Aurik v. Netherlands does not faithfully reflect its current practice. The authors wanted to study and practise Hinduism and become Hindu priests, but to do this it was mandatory to adopt Hindu names. They claimed that Article 18 was violated when the Dutch authorities refused to allow their change of surname. The Committee ‘considered that the regulation of surnames and the change . . . was eminently a matter of public order’ and restrictions were therefore permissible under paragraph 3 of Article 18’, but it found this part of the claim inadmissible, accepting the State’s somewhat artificial contention that the authors’ inability to pursue their studies in India was the consequence of requirements imposed by Indian Hindu leaders, and could not be attributed to the Dutch Government’s rules on name 106 Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.4] [7.12]; Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [8.4] [8.12]. See also Switzerland CCPR/C/CHE/ CO/4 (2017) 44 (concern about the proliferation of regulations relating to the school environ ment or to attire worn in public and imposing significant fines, that appear to affect Muslims in particular).

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changes.107 The Committee may have been influenced by the European Commission’s decision to render the claim inadmissible under Article 9 of the European Convention ‘as they had not established that their religious studies would be impeded by the refusal to modify their surnames’. The Committee did, however, find a violation of Article 17 in the State’s arbitrary grounds for refusing to change their surnames, namely, that the names had religious connotations and were not ‘Dutch sounding’, which the Committee considered not to be reasonable.108 (If the Article 18 claim had been admissible, it is likely that the restriction on name change would not have been found ‘necessary’.)

Health The Committee approached the religious use of prohibited drugs in M.A.B., W.A.T. and J.A.Y.T. v. Canada by ruling that ‘a belief consisting primarily or exclusively in the worship and distribution of a narcotic drug cannot conceivably be brought within the scope of Article 18’.109 Later, in Prince v. South Africa, it accepted Rastafarianism as a religion within the meaning of Article 18 and the petition was admissible. The author was unable to complete community service, as required for admission as an attorney, after he disclosed two previous convictions for possessing cannabis, and his intention, in the light of his religious dictates, to continue using cannabis. The State justified its general prohibition on possession and use of cannabis as a measure designed to protect ‘public safety, order, health, morals or the fundamental rights and freedoms of others’ based on its harmful effects (having presented supporting evidence to the domestic court on the harmful effects of cannabis). In particular, it asserted that an exemption allowing a system of importation, transportation and distribution to Rastafarians may constitute a threat to the public at large were any of the cannabis to enter into general circulation. The Committee could not agree with the author’s claim that the failure to grant exemption to specific religious groups was not proportionate and necessary to achieve this purpose.110 The Committee has not had to address issues similar to those faced by the European Court in Jehovah’s Witnesses v. the Russian Federation concerning doctrinal abstinence from blood transfusion, which raises questions of public health, but in that instance strong emphasis was placed by the European Court on the personal autonomy of the individual.111 107 108 109 110 111

Coeriel and Aurik v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [6.1]. Coeriel and Aurik v. Netherlands, CCPR/C/52/D/453/1991, 31 October 1994 [10.5]. M.A.B., W.A.T. and J.A.Y.T. v. Canada, CCPR/C/50/D/570/1993, 8 April 1994 [4.2]. Prince v. South Africa, CCPR/C/91/D/1474/2006, 31 October 2007 [7.3]. Jehovah’s Witnesses of Moscow v. Russian Federation, App. No. 302/02, ECHR 10 June 2010 [135] (the very essence of the Convention is respect for human dignity and human freedom and the notions of self determination and personal autonomy are important principles underlying the interpretation of its guarantees. The ability to conduct one’s life in a manner of one’s own

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Morals The question of ‘morals’ does not often arise in Article 18 claims (it has been a more common issue under Article 19 in the use of broadcast media), although in General Comment 22 the Committee has stated that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’.112 It had previously taken issue with a limitation in Panama’s Constitution guaranteeing freedom to practise all religions but requiring respect for Christian morals.113 The Committee has also expressed concern at official enforcement of strict dress requirements for women in public places in Sudan, under the guise of public order and morality, and at inhuman punishment imposed for breaches.114

Rights and Freedoms of Others In Malcolm Ross v. Canada the Committee undertook a detailed analysis under Article 19(3)(a) of the ‘rights or reputations of others’ affected by off-duty antiSemitic remarks by a school teacher. Since these were such as to raise or strengthen anti-Semitic feeling the Committee supported the aim of disciplinary action taken against him in order to uphold the right of those of Jewish faith to have an education in the public school system free from bias, prejudice and intolerance. In its assessment of the Article 18 claim, it noted that the restriction was not aimed at the school teacher’s thoughts or beliefs as such, so did not fall within the absolute protection of Article 18(1). The Committee did not undertake a separate analysis under Article 18(3) beyond considering the issues to be substantially the same as already considered under Article 19, enabling it to find that Article 18 had also not been violated (relying on the ‘fundamental rights and freedoms of others’ in Article 18(3)).115 In Singh v. France the Committee accepted that legislation prohibiting public school pupils from wearing conspicuous displays of religious affiliation served purposes related to protecting the rights and freedoms of others, public order and safety,116 but it importantly restated the need for evidence to a high standard in proof of necessity. The author was expelled from a public secondary school for

112 113 114 115 116

choosing includes the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the individual concerned). GC 22 [8]. See Panama A/39/40 (1984) 416; Panama A/46/40 (1991) 446; Panama CCPR/C/PAN/CO/3 (2008) 15. Sudan CCPR/C/79/Add.85 (1997) 22. Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000 [11.6] [11.8]. Bikramjit Singh v. France, CCPR/C/106/D/1852/2008, 1 November 2012 [8.6].

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wearing a keski (worn by young Sikh boys as a precursor or alternative to a larger turban). At first, he was prevented from entering the classroom. Later (while the school conducted dialogue required under the legislation), he was sent to the school canteen, where he received no teaching but was provided with school books on request. He was ultimately permanently expelled. The purpose of the legislation was to defuse community tension after the Stasi Commission found that identity-related conflicts could become a factor relating to violence in schools. The Committee recognised that a secularist policy (laïcité) is itself a means by which a State may seek to protect the religious freedom of all its population, and that the legislation responded to actual contemporary incidents of interference with the religious freedom of pupils and sometimes even threats to their physical safety. However, it found a violation of Article 18 because there was no compelling evidence that by wearing his keski the author would have posed a threat to the rights and freedoms of other pupils or to order at the school (notice ‘compelling evidence’). His permanent expulsion was disproportionate, with serious effects on his education, which was an entitlement. The Committee was influenced by the fact that the State imposed this sanction, not because the author’s personal conduct created any concrete risk, but (as a matter of administrative expediency) solely because of his inclusion in a broad category of persons defined by their religious conduct. France had therefore not shown how the sacrifice of those persons’ rights was either necessary or proportionate to the benefits achieved.117 The Committee more recently observed that such laws in France also engender a feeling of exclusion and marginalisation among certain groups, contrary to their intended goals.118 In Miriana Hebbadj v. France and Sonia Yaker v. France the rights of others asserted in support of the criminal prohibition against concealing the face in public areas, namely, ‘to interact with any individual in public and the right not to be disturbed by other people wearing the full-face veil’, were simply not protected by the Covenant.119 This chapter has already touched on how proselytism is claimed to impinge on ‘the fundamental rights and freedoms of others’, but the Committee has yet to make an adverse finding in this area. On the contrary, in Sister Immaculate Joseph et al. v. Sri Lanka, when incorporation of a religious order was sought to better enable the authors to realise its objects, the Committee commented that it is 117 Bikramjit Singh v. France, CCPR/C/106/D/1852/2008, 1 November 2012 [8.7]. See also France CCPR/C/FRA/CO/4 (2008) 23 (the Committee considered that respect for a public culture of laïcité would not seem to require forbidding wearing such common religious symbols. On the best interests of the child and the need to ensure children are not excluded or marginalised from the school system and other settings, see CRC/C/15/Add.240 [25] [26]. 118 France CCPR/C/FRA/CO/5 (2015) 22. 119 Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.10]; Yaker v. France, CCPR/C/ 123/D/2747/2016, 17 July 2018 [8.10].

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a central tenet of numerous religions (including the authors’) to spread knowledge, to propagate their beliefs to others and to provide assistance to others, as an individual’s manifestation of religion and free expression within Article 18. Permissible restrictions on Covenant rights are exceptions to the exercise of the right in question and must be interpreted narrowly, with careful scrutiny of the reasons advanced by way of justification. The State was unsuccessful in relying on Article 18(3) in its characterisation of the order’s activities as the coercive or improper propagation of religion through the provision of material and other benefits to vulnerable people (based on a misreading of the European Court decisions in Kokkinakis v. Greece and Larissis v. Greece) without any evidentiary or factual foundation, and without reconciling this assessment with the analogous benefits and services provided by other religious bodies that had been incorporated.120 In Sister Immaculate Joseph there was no justification for the State’s conclusion that spreading knowledge of a religion would ‘impair the very existence of Buddhism or the Buddha Sasana’, as claimed, contrary to the Constitution. The position of dominant State ideology, whether religious or secular, was put by the Committee as follows in General Comment 22: The fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including Articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers . . . If a set of beliefs is treated as official ideology (for example in constitutions, statutes or in practice) this shall not result in any impairment of the freedoms under Article 18 or any other rights recognized under the Covenant, nor in any discrimination against persons who do not accept the official ideology or who oppose it.121

The distaste for missionary activities of any kind is deep-seated in many countries. The author in Viktor Leven v. Kazakhstan was convicted for not having been registered as a foreign missionary on behalf of his church. His activities consisted of preaching, praying and conducting meetings and religious rituals among the followers of the church. The Committee found a violation of Article 18(1) because the State did not advance any argument to explain how it was necessary to require him to register as a foreign missionary before engaging in those activities. It simply relied on the fact that there had been a contravention of domestic law. The absurdity of the requirement is evident in the fact that this particular church had existed in Kazakhstan since the author was a child, he fell foul of the legislation 120 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [7.2] [7.4], responding to the State’s citation of Kokkinakis v. Greece, App. No. 14307/88, ECHR 19 April 1993, and Larissis v. Greece, App. Nos 23372/94, 26377/94 and 26378/94, ECHR 24 February 1998 (violation of Arts 18(1) and 26). 121 GC 22 [9] [10].

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only because he had lived in Germany where he acquired citizenship, and he had participated in the church’s activities before and after he acquired German citizenship. The harsh consequence in terms of fine, denial of citizenship, threat of deportation and separation from his family was not shown to serve any legitimate purpose, nor was it proportionate to any purpose that it might ostensibly serve. The Committee issued a reminder that Article18 protects the right of all members of a religious congregation, not only missionaries, and not only citizens.122 Recent Article 18 findings of violation against France concerning the headscarf are discussed in detail in the chapter on Article 26, and evidence the clearest divergence from European Convention decisions in which wearing the headscarf was treated as a ‘powerful external symbol’ akin to proselytism.123 The author in F.A. v. France was a teacher in a primary school established by a private association who habitually wore a headscarf but on her return from parental leave was dismissed for breaching her employer’s ‘internal regulations for refusing to remove her “Islamic veil”’. The relevant clause read, ‘the principle of the freedom of conscience and religion of each staff member may not hinder compliance with the principles of secularism and neutrality that apply to all [of the association’s] activities’. The State relied on European Convention decisions in asserting the rights and freedoms of others against a ‘powerful external symbol’, but could not explain why the headscarf would be incompatible with the purpose of the school association, to work in support of early childhood in deprived areas and to promote the social and professional integration of local women, especially given that one of the association’s objectives was ‘to promote the social and professional integration of women regardless of political opinion or faith’. The integration of the author, regardless of her faith, fitted well with that objective. As to proportionality, the obligation to remove her headscarf while at the centre and her stigmatising dismissal for ‘serious misconduct’, which meant she lost all severance pay, did not meet the criteria of Article 18(3). The Committee merely noted but did not entertain further the State’s reliance of a ‘margin of appreciation’ which has long been a hallmark of decisions under Article 9 of the European Convention.124 The Committee further diverged from European Court rulings (particularly Leyla Şahin v. Turkey)125 when in Seyma Türkan v. Turkey it found a violation 122 Leven v. Kazakhstan, CCPR/C/112/D/2131/2012, 21 October 2014 [9.4]. 123 Dahlab v. Switzerland, App. No. 42393/98, ECHR 15 February 2001; Leyla Şahin v. Turkey, App. No. 44774/98, [2005] ECHR 819. See chapter on Article 26: Equality before the Law Equal Protection of the Law, sections ‘Grounds of Discrimination’, ‘Religion’, ‘Religious Practice’. For the argument that by failing to scrutinise the necessity of restrictions and the role of secularism the European Court is not fulfilling its role as ‘the conscience of Europe’ see Stephanie Berry, ‘“A Good Faith” Interpretation of the Right to Manifest Religion? The Diverging Approaches of the European Court of Human Rights and the UN Human Rights Committee’, (2017) 37(4) Legal Studies, p. 672. 124 F.A. v. France, CCPR/C/123/D/2662/2015, 16 July 2018 [8.7], [8.9]. 125 Leyla Şahin v. Turkey, App. No. 44774/98, [2005] ECHR 819.

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of Article 18 (and Article 26, and of Article 3 read in conjunction with Article 18) when the author was refused registration at the university where she had won a competitive place, because she wore a wig instead of a headscarf out of religious duty.126 Collective Aspects of Religion or Belief Protection for the collective dimension of religious practice is acknowledged in Article 18(1) by the words ‘in community with others’, and it entails autonomy for religious institutions.127 It is inseparable from the individual dimension, as Yoram Dinstein explained: [F]reedom of religion, as an individual right, may be nullified unless complemented by a collective human right of the religious group to construct the infrastructure making possible the full enjoyment of that freedom by individuals.128

Organisational Ethos In reports to the General Assembly the Special Rapporteur on Religion or Belief has made a number of observations on the corporative aspects of freedom of religion, including religious bodies as employers. In his 2014 report he acknowledged the parameters indicated by the ILO Committee of Experts on the Application of Conventions and Recommendations, when it insisted on a narrow interpretation of the inherent requirements provision of the ILO Discrimination Convention.129 Nevertheless, he considered the characteristics of certain religious groups qualifies them to fall within these parameters. Religious institutions ‘constitute a special category, as their raison d’être is, from the outset, a religious one. The autonomy of religious institutions thus undoubtedly falls within the remit of freedom of religion or belief.’130 The Special Rapporteur referred to recent decisions of the European Court concerning the limits within which a religious organisation as an employer may require employees to uphold its values, to allow the possibility for religious employers to impose religious rules of conduct on the workplace, depending on the specific purpose of employment. The context for some of those decisions was European 126 127 128 129

Türkan v. Turkey, CCPR/C/123/D/2274/2013, 17 July 2018 [7.2] [7.6]. A/HRC/69/261 (2014) [41]. Yoram Dinstein (ed.), The Protection of Minorities and Human Rights (Springer, 1992), p. 152. ILO Discrimination (Employment and Occupation) Convention, C111, 25 June 1958, C111, Art. 1(2): ‘Any distinction, exclusion or preference in respect to a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.’ The Committee of Experts stated ‘Such exceptions should be interpreted restrictively and on a case by case basis so as to avoid undue limitation of the protection that the Convention is intended to provide’ (2012 General Survey on the fundamental Conventions, [827] [831]). 130 A/69/261 (2014) [38].

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Council Directive 2000/78/EC which, like the ILO Convention, aims to promote equal treatment in the workplace and ensure that those of a particular religion or belief, disability, age or sexual orientation do not suffer discrimination. It is more specific than the ILO Convention in that it contains occupational requirements exemptions which allow for different treatment based specifically on those characteristics.131 In some of the European Court’s decisions upholding the employer’s ethos in a finding of no violation of the rights of the employee, the latter’s rights at issue have included their private and family life,132 the right to marry133 and freedom of religion.134 Among all the major world religions it is possible to find doctrine or precepts which are inconsistent with Covenant standards. The Special Rapporteur expanded on this issue when discussing the self-autonomy of religious communities. On the subject of gender-based distinctions, the Special Rapporteur noted that in many denominations, positions of religious authority, such as bishop, imam, preacher, priest, rabbi or reverend, remain reserved to males, in direct conflict with the principle of Article 3.135 He pointed to a number of principles and norms relevant to this question, including the positive role of the State to provide the framework for religious pluralism, and its duty to respect the autonomy of religious institutions, even where beliefs conflict with Covenant standards: It cannot be the business of the State to shape or reshape religious traditions, nor can the State claim any binding authority in the interpretation of religious sources or in the definition of the tenets of faith. Freedom of religion or belief is a right of human beings, after all, not a right of the State . . . questions of how to institutionalize community life may significantly affect the religious self-understanding of a community. From this it follows that the State must generally respect the autonomy of religious institutions, also in policies of promoting equality between men and women . . . What the State can and should do, however, is to provide an open framework in which religious pluralism, including pluralism in institutions, can unfold freely.136

Respect for the internal autonomy of religious communities has been a matter of on-going concern for the Special Rapporteur, particularly where the intention of

131 European Council Directive 2000/78/EC of 27 November 2000 establishing a general frame work for equal treatment in employment and occupation. See also European Court decisions Obst v. Germany, App. No. 425/03, ECHR, 23 September 2010; Schüth v. Germany, App. No. 1620/03, ECHR, 23 September 2010; Siebenhaar v. Germany, App. No. 18136/02, ECHR, 3 February 2011; Fernández Martínez v. Spain, App. No. 56030/07, ECHR, 12 June 2014; Travaš v. Croatia, App. No. 75581/13, ECHR, 4 October 2016. See also the Committee’s decision in Arenz, Röder and Dagmar v. Germany, CCPR/C/80/D/1138/2002, 24 March 2004 [8.6] (a claim that expulsion from a political party based on their affiliation with Scientology was inadmissible when it subsisted merely in the fact that domestic courts gave priority to the principle of party autonomy over the authors’ wish to be members). 132 Obst v. Germany; Fernández Martínez v. Spain. 133 Fernández Martínez v. Spain. 134 Siebenhaar v. Germany. 135 A/68/290 [58]. 136 A/68/290 (2013) [59] [60].

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the State is to exercise political control by interfering with leadership, or has involved community infiltration, or intimidation.137

Registration Among the most significant obstacles to collective religious practice in recent times have been procedures for registration. On the one hand, registration may facilitate organisational aspects of religious practice, by furnishing communities of individuals with the necessary legal personality to enter into transactions and to buy, rent or build premises (whether for administration, worship or other functions), to undertake purchasing and other financial responsibilities, to set up bank accounts or trusts, and to employ staff, including religious leaders. However, they may also be used repressively, at worst to threaten the very existence of religious communities. Concluding Observations demonstrate how registration procedures have been misused: to prevent peaceful religious activities outside registered structures, and to confine the use of religious materials within registered premises;138 to preclude juridical personality for churches;139 as an unjustified precondition to the proper functioning of a religious community;140 and to impose penalties for religious activities without registration.141 Requirements for registration or recognition are often onerous,142 and the procedure has been used to discriminate between religious groups,143 including on the basis of membership size,144 and whether the doctrines of a new religious sect are different from those of existing sects.145 In some cases, the State has enjoyed excessive power to control activities of religious associations, including by banning religious 137 A/22/51 (2012) [51]. (Examples include the government appointment of religious community leaders in ways which contradict the self understanding of the respective group and their traditions, thereby violating their autonomy. It also referred to reports about State agents implanted in monasteries to tighten control over the religious life in China, the compulsory establishment of an unelected ‘monastery management Committee’ in every monastery in Tibet, and intimidation of Bahá’í leaders in Iran.) 138 E.g., Uzbekistan CCPR/C/UZB/CO/4 (2015) 22. 139 E.g., Mexico A/38/40 (1983) 74. 140 E.g., Azerbaijan CCPR/C/AZE/CO/3 (2009) 13. 141 E.g., Moldova CCPR/C/MDA/CO/2 (2009) 25; Kazakhstan CCPR/C/KAZ/CO/1 (2011) 24; Turkmenistan CCPR/C/TKM/CO/1 (2012) 17; Uzbekistan CCPR/C/UZB/CO/4 (2015) 22; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 47; Turkmenistan CCPR/C/TKM/CO/2 (2017) 38. 142 E.g., Indonesia CCPR/C/IDN/CO/1 (2013) 24; Moldova CCPR/C/MDA/CO/3 (2016) 37, 38 (lengthy and burdensome process of registering a religious organisation with recommendation to ensure compliance with Art. 22, in particular with the need to develop transparent legal criteria that would meet requirements of necessity and proportionality). 143 E.g., Lithuania CCPR/C/79/Add.87 (1997) 18; Hungary CCPR/CO/74/HUN (2002) 14; Belgium CCPR/CO/81/BEL (2004) 26; Lithuania CCPR/CO/80/LTU (2004) 16; Bulgaria CCPR/C/BGR/CO/3 (2011) 25; Tajikistan CCPR/C/TJK/CO/2 (2013) 20; Kyrgyzstan CCPR/ C/KGZ/CO/2 (2014) 22; Austria CCPR/C/AUT/CO/5 (2015) 31 32; Belarus CCPR/C/BLR/ CO/5 (2018) 45; Bulgaria CCPR/C/BGR/CO/4 (2018) 35. 144 E.g., Poland A/47/40 (1992) 142; Cyprus CCPR/C/CYP/CO/4 (2015) 24. 145 E.g., Zaire A/42/40 (1987) 270, 285. See also Congo A/42/40 (1987) 252.

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denominations.146 The Committee is concerned whenever rights, such as the right to incorporate, are conferred on a discretionary basis.147 The manner of restitution of property belonging to religious groups in various countries of the former Soviet Union was also an issue, especially for religious minorities,148 in some instances because registration was a precondition for restitution.149 The misuse of registration laws does not appear to diminish, in spite of attention in OSCE Guidelines,150 condemnation by the Committee151 and the Special Rapporteur, and resolutions from the Commission on Human Rights,152 the Human Rights Council153 and the General Assembly.154 Since 2006 the Special Rapporteur has also included registration as a specific category within the framework for communications.155

Leadership The Committee has taken issue with Mexico on legislative limits on the number of ministers of religious creeds according to the needs of each locality,156 and restrictions on the freedom of ministers of religion to criticise laws, the authorities or the government;157 and with Poland on the discriminatory requirement that church authorities inform the relevant minister of an impending appointment of a foreigner to an executive post.158

Teaching, Preaching and Professing On religious teaching the Committee expressed regret that Indonesia’s law on defamation of religion unduly restricted the freedom of religion and expression of religious minorities by prohibiting interpretations of religious doctrines considered divergent from the teachings of protected and recognised religions.159

146 E.g., Tajikistan CCPR/C/TJK/CO/2 (2013) 20. 147 E.g., Monaco CCPR/C/MCO/CO/2 (2008) 13 (the Committee was concerned about the discre tion given to authorities to decide whether a body corporate being set up is sectarian in nature). 148 E.g., Hungary CCPR/CO/74/HUN (2002) 14; Georgia CCPR/C/GEO/CO/4 (2014) 18. 149 E.g., Lithuania CCPR/CO/80/LTU (2004) 16. 150 Guidelines for Review of Legislation Pertaining to Religion or Belief, Organization for Security and Co operation in Europe (OSCE, 2004), and Guidelines on the Legal Personality of Religious or Belief Communities (OSCE, 2014). 151 E.g., obstacles to incorporation (Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/ 1249/2004, 21 October 2005) and registration (Malakhovsky and Pikul v. Belarus, CCPR/C/84/ D/1207/2003, 26 July 2005). 152 Commission on Human Rights Resolution 2005/40 of 19 April 2005, E/CN.4/RES/2005/40. 153 Human Rights Council Resolutions 6/37 of 14 December 2007; and 16/13 of 24 March 2011. 154 General Assembly Resolutions 60/166 of 16 December 2005; 61/161 of 19 December 2006; 63/ 181 of 18 December 2008; 64/164 of 18 December 2009; and 65/211 of 21 December 2010. 155 See framework for communications in E/CN.4/2006/5 (2006) [28] [35] and Annex. 156 Mexico A/38/40 (1983) 74. 157 Mexico A/38/40 (1983) 74; Luxembourg A/41/40 (1986) 69. 158 Poland A/47/40 (1992) 142. 159 Indonesia CCPR/C/IDN/CO/1 (2013) 25.

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Legislation proposed in Bulgaria would have prohibited preaching in any language except Bulgarian.160

Worship The Committee has expressed concern about undue restrictions on the construction of places of worship by religious minorities,161 and denial of licences to construct places of worship.162 Restrictions on access to places of worship include those that limit worship to one day per week,163 or which inappropriately invoke security concerns.164 It deplored the ban on worship imposed on the Baha’i community in Egypt.165 Other recurring issues affecting worship include destruction of places of worship;166 vandalism of places of worship;167 forced closure of churches and evangelical institutions, and various restrictions on worshippers who belong to religious minorities;168 discriminatory attacks on places of worship of religious minorities;169 and hate crimes against those belonging to religious minorities and their places of worship.170

Private not Public Practice The Committee has addressed measures which confine religious practice by minorities to private places such as apartments,171 or have similar effect because minorities have no public places of worship,172 as well as restrictions on religious leaders who have been trained abroad carrying out certain functions in public.173

160 Bulgaria CCPR/C/BGR/CO/4 (2018) 35. 161 E.g., Kuwait CCPR/C/KWT/CO/2 (2011) 23. See also Switzerland CCPR/C/CHE/CO/3 (2009) 8 and Switzerland CCPR/C/CHE/CO/4 (2017) 42 (ban on the construction of new minarets). 162 E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 35. 163 E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 18 (worship by Muslims restricted to Friday). 164 E.g., Israel CCPR/C/ISR/CO/3 (2010) 20 (disproportionate restrictions on access to places of worship for non Jews). 165 Egypt CCPR/CO/76/EGY (2002) 17. 166 E.g., Congo CCPR/C/COD/CO/4 (2017) 27; Turkmenistan CCPR/C/TKM/CO/2 (2017) 38; Sudan CCPR/C/SDN/CO/5 (2018) 49, 50. 167 E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 35. See also Australia CCPR/C/AUS/CO/6 (2017) 19 (attacks on places of worship). 168 E.g., Algeria CCPR/C/DZA/CO/4 (2018) 41. 169 E.g., Bangladesh CCPR/C/BGD/CO/1 (2017) 11. 170 E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 33. For an analysis of the substance of the right to establish and maintain places of worship, see Noel Villaroman, ‘Places of Worship’, (2014) 3 JLRS 276. 171 E.g., Azerbaijan CCPR/C/72/L/AZE SR 2639 (2009) 64. 172 E.g., Maldives CCPR/C/MDV/CO/1 (2012) 24. 173 E.g., Azerbaijan CCPR/C/AZE/CO/3 (2009) 13.

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PA R E N TA L A N D G UA R D I A N S H I P R I G H T S : A RT I C L E 1 8 ( 4 ) Religious Education in Public Schools The range of beliefs protected by Article 18(1) and (4) is very broad.174 Article 18(4) supports parental convictions which are religious, secular or anti-religious. Most issues considered by the Committee under Article 18(4) have concerned teaching on Christianity as the dominant religion, in a way that once traditionally permeated the education system in countries like Norway and Finland.175 The obligation to ensure parental choice in the education of children under Article 18(4) ‘is related to the guarantees of the freedom to teach a religion or belief stated in article 18.1’,176 but it goes further than the right to teach (which is subject to limitations in Article 18(3)) because ‘the liberty of the parents and guardians to ensure religious and moral education cannot be restricted’.177 An unusual clause in the Norwegian Constitution provided that individuals professing the Evangelical-Lutheran religion were bound to bring up their children in the same faith, which caused the Committee to recommend repeatedly that this be brought in line with Article 18, but it did not specify whether the concern was under Article 18(1) or 18(4).178 The Committee does not appear to be averse to the teaching of religions in public schools, but it is inconsistent with Article 18(4) to do so without nondiscriminatory exemptions or alternatives to accommodate the wishes of parents and guardians.179 Alternative instruction must respect the convictions of parents and guardians who do not believe in any religion.180 Religiously-biased content of textbooks and curricula in public schools could also be incompatible with Article 18(4), if not also 18(1).181 Any system of exemption must operate effectively. In Leirvåg v. Norway a system of partial exemption from compulsory instruction in ‘Christian Knowledge and Religious and Ethical Education’ imposed too great a burden 174 GC 22 [2]; Leirvåg v. Norway, CCPR/C/82/D/1155/2003, 3 November 2004 [14.2]. 175 Hartikainen v. Finland, Communication No. 40/1978, CCPR/C/OP/1 at 74 (1984), 9 April 1981 [10.4]. 176 GC 22 [6]. 177 GC 22 [8]. 178 Norway CCPR/C/79/Add.27 (1993) 10; Norway CCPR/C/NOR/CO/5 (2006) 15. 179 Hartikainen v. Finland, Communication No. 40/1978, CCPR/C/OP/1 at 74 (1984), 9 April 1981 [10.4]; GC 22 [6]. In considering Costa Rica’s third periodic report the Committee noted with concern that legislation effectively impeded the teaching of religions other than Catholicism in public schools and gave power to bar non Catholics from teaching religion in the public school curricula. Costa Rica CCPR/C/79/Add.31 (1994) 9, 13. On discriminatory funding, see Waldman v. Canada, CCPR/C/67/D/694/1996, 5 November 1999. 180 Hartikainen v. Finland, Communication No. 40/1978, CCPR/C/OP/1 at 74 (1984), 9 April 1981 [10.4]; GC 22 [6]. 181 Pakistan CCPR/C/PAK/CO/1 (2017) 33 (religiously biased content of textbooks and curricula in public schools and madrasas). See also Turkmenistan CCPR/C/TKM/CO/2 (2017) 38 (restrictions on religious education).

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on those seeking to avoid it, as they had to be acquainted with the subject matter, including its religious content, in order to determine those aspects from which they should be exempted. Also, alternative education on religious knowledge was combined with religious practice, such as learning prayers by heart, singing religious hymns and attending religious services. Although exemption could be sought by ticking a box on a form, the scheme overall was not practicable.182 Article 18(4) may therefore require organisational changes within public education to accommodate the wishes of parents and guardians. Exemption should avoid a sense of marginalisation.183 The Committee has raised with numerous countries the practical operation of exemptions. It has recommended that States ensure that every student has the freedom to participate, or to choose not to participate, in religious education at school, with easily available nonburdensome exemption,184 it has expressed concern where students are required to remain in class in spite of being exempted,185 where legislation may effectively impede the teaching of religions other than the dominant religion in public schools and bars those of other religions from teaching religion in the public school curricula.186 In the early days of examining State reports the Committee questioned whether compulsory religious instruction for all public school pupils who were members of a church or religious community recognised by the law was compatible with freedom of religion,187 and it asked how domestic law could be reconciled with the freedom where it only excused a child from instruction in religious knowledge when the person with custody of the child declared in writing that they would provide the child with such instruction.188 It pointed out that pupils not wishing to attend religious education classes should not be obliged to declare their religion.189 It issued a reminder to one country which was not intending to provide full exemption that ‘the right to freedom of thought, conscience and religion implies not only the freedom to accept and follow particular religions or beliefs but also the right to reject them’. It recommended reform to the education curriculum in that case to promote religious diversity as well as to ensure that the preferences of believers and of non-believers are both accommodated.190 It was concerned that children may receive religious education only from State-licensed religious educational institutions.191

182 Leirvåg v. Norway, CCPR/C/82/D/1155/2003, 3 November 2004 [14.6] [14.7]. 183 CRC Committee, Concluding Observations, Italy CRC/C/15/add.198 (2003) 29 30. For the rights of the child more generally, see Eva Brems (ed.), Article 14: The Rights to Freedom of Thought, Conscience and Religion (Brill, 2006), ch. 3 (Scope of Article 14); Jean François Renucci, The Right of the Child to Religious Freedom in International Law (Martinus Nijhoff, 2007). 184 Cyprus CCPR/C/CYP/CO/4 (2015) 19. 185 Ibid. 186 Costa Rica CCPR/C/79/Add.31 (1994) 9, 13. 187 Austria A/38/40 (1983) 194. 188 Denmark A/36/40 (1981) 82. 189 Greece CCPR/CO/83/GRC (2005) 14. 190 Indonesia CCPR/C/IDN/CO/1 (2013) 26. 191 Tajikistan CCPR/C/TJK/CO/2 (2013) 20.

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The Convention on the Rights of the Child is also directly relevant since it upholds the choices of children and parents: for children by requiring States to ‘respect the right of the child to freedom of thought, conscience and religion’; for parents by the obligation to ‘respect the rights and duties of parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child’.192 That Convention also supports the self-identity of children by specific obligations to respect the child’s right to preserve their identity, including religious identity (Article 8), in addition to more general obligations against discrimination (Article 2). Under Article 29(1)(d) States agree that the education of the child shall be directed to the ‘preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’. The CRC is less accommodating than the European Court has been on prohibitions on schoolteachers wearing religious clothing,193 and for its part considers that banning schoolteachers from wearing religious clothing does ‘not contribute to the child’s understanding of the right to freedom of religion or to the development of an attitude of tolerance as required by the Convention on the rights of the child’.194 In his 2011 report, the Special Rapporteur on Religion or Belief surveyed issues affecting religious symbols in schools, with the operating presumption that students were entitled to wear religious symbols, but with due allowance for exceptional circumstances requiring protection of minority students from pressure from schoolmates or their community, or the influence a teacher may have on students, depending on the general behaviour of the teacher, the age of students and other factors.195 In 2013, he turned his attention to school programmes addressing gender and sexuality issues, which have sometimes triggered resistance on the part of parents who fear that this might go against their moral convictions. Without providing a recipe for handling such conflicts, but with reference to the relevant rights of the child, he observed that each individual case requires a careful analysis of the specific context and of the human rights norms invoked by the conflicting parties: One should bear in mind that neither the right to education, including education ‘in the spirit of . . . equality of sexes’, nor the right to freedom of religion or belief can be dispensed with, since both have the status of inalienable human rights. It is 192 Convention on the Rights of the Child, 20 November 1989, UNTS vol. 1577, 3, Art. 14. 193 See, e.g., Dahlab v. Switzerland, App.No. 42393/98, ECHR, 15 Feb 2001; Dogru v. France, App. No. 27058/05, ECHR, 4 December 2008. 194 Germany CRC/C/15/Add.226 (2004) [30] [31] (it also had the mischief of singling out a particular religious group). 195 A/16/53 (2010) [41] [46]. For general criteria on the assessment of conflicts over religious symbols, see E/CN.4/2006/5 (2006) [51] [60].

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always advisable to try to prevent or de-escalate conflicts, for instance by training teachers, dispelling mistrust and misunderstandings and establishing outreach programmes towards particular communities . . . The Special Rapporteur would like to reiterate in this context that, according to Article 18, paragraph 2, of the International Covenant, the forum internum dimension of freedom of religion or belief receives unconditional protection and does not allow any restrictions or infringements, for any reason. Even the undeniably significant aim of promoting gender equality and using school education for that purpose cannot justify forms of teaching that may amount to violation of a student’s forum internum. States are therefore obliged to exercise due diligence in this area, for instance by sensitizing teachers, employing professional mediators and establishing suitable monitoring mechanisms.196

The Special Rapporteur has also taken account of the Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence,197 with recommendations that school education should include fair information on religious and beliefrelated issues as part of the mandatory curriculum, taking seriously the selfunderstandings of the respective religious communities to overcome external descriptions which are often stereotypical.198 Denominational Schools Private religious schools may be seen as a means of supporting the religious and moral education of children in conformity with parental convictions. The Special Rapporteur clearly considers them to be relevant to Article 18(4) (and its equivalent in Article 5 of the 1981 Declaration and Article 14(2) of the Convention on the Rights of the Child) when considering the negative repercussions of restrictions on their establishment.199 He regarded denominational schools as a part of the institutionalised diversity within a modern pluralistic society, but their existence cannot serve as an excuse for the State not to pay sufficient attention to religious and belief diversity in public school education. Even if such schools provide one way of respecting parental rights under Article 18(4), the public school system must also respect religious and belief diversity.200 Where private denominational schools have a de facto monopoly in a particular area, so that students and parents cannot avoid education based on a denomination that does not match their beliefs, it is up to the State to prevent students being exposed to religious instruction against their will, and to support the right of parents to ensure

196 A/68/290 (2013) [55] [56] (footnotes omitted). 197 Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence, A/HRC/22/17/Add.4, Appendix (2013). 198 A/HRC/25/58 (2013) 70(n). 199 A/HRC/19/60 (2011) [47]. 200 A/HRC/16/53 (2010) [54] [55].

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a religious and moral education of their children in conformity with their own convictions.201 The way in which denominational schools are funded may raise issues under Article 18. The Committee clarified this in Waldman v. Canada in a discrimination claim which resulted from the author having to meet the full cost of religious education privately when public funding was available for Roman Catholic schools, but not for Jewish schools. The Covenant does not oblige a State to fund schools which are established on a religious basis, but if it chooses to provide public funding to religious schools, it should make it available without discrimination. Funding available for schools of one religious group and not for another must be based on reasonable and objective criteria.202 The Committee has also raised the status of religious schools in the reporting process, asking why religious schools were banned and why courses of study pursued in seminaries were not recognised in the same way as courses in other educational institutions.203 It also asked why parents seemed to be prohibited from organising the religious instruction of their children on a private basis.204

I M P L E M E N TAT I O N As with any Covenant right that admits no restriction, the elements of Article 18(1) and (4) which are not subject to limitation require particular attention in domestic law. Similarly, with the non-derogable nature of Article 18 in its entirety, to comply with Article 4(2). Compliance with Article 18(3) terms of limitation also remains a priority. With that in mind the Committee has reminded States that the right to choose religion may not be subject to any limitations;205 it has made firm recommendations in the face of reports of the forced confinement of new followers of minority religious groups in an effort to ‘de-convert’ them;206 it has repeatedly recommended the abolition of the crime of apostasy given its incompatibility with Article 18;207 and, indeed, any restriction on 201 A/HRC/16/53 (2010) [56]. 202 Waldman v. Canada, CCPR/C/67/D/694/1996, 5 November 1999 [10.6]. See also Liechtenstein CCPR/C/LIE/CO/2 (2017) 27, 28 (recommendation that funding be provided for religious organisations of all religious communities on a basis of equality). 203 Mexico A/38/40 (1983) 74. 204 USSR A/40/40 (1985) 300. 205 E.g., Morocco CCPR/C/79/Add.113 (1999) 22; Yemen CCPR/CO/84/YEM (2005) 18; Iran CCPR/C/IRN/CO/3 (2011) 24; Iraq CCPR/C/IRQ/CO/5 (2015) 37 38. See also Egypt CCPR A/48/40 (1993) 683 (apostasy treated as a breach of public order). 206 Japan CCPR/C/JPN/CO/6 (2014) 21. 207 E.g., Sudan CCPR/C/SDN/CO/3 (2007) 26; Maldives CCPR/C/MDV/CO/1 (2012) 24; Sudan CCPR/C/SDN/CO/4 (2014) 20; Mauritania CCPR/C/MRT/CO/1 (2013) 21; Sudan CCPR/C/ SDN/CO/5 (2018) 49, 50.

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converting to or away from a religion;208 it called for revision of legislation with a view to recognising clearly the right to conscientious objection to military service;209 and it has expressed concern that liberty of conscience is not effectively guaranteed.210 It has scrutinised compliance with Article 18(3) to determine whether national security is wrongly permitted as a ground of limitation;211 it has addressed other bases of limitation which are not legitimate,212 such as ‘subversive progaganda’,213 the use of religion for ‘political ends’214 and where religious practice provokes ‘public indignation’;215 and it has recommended the decriminalisation of blasphemy.216 It has also paid close attention to whether domestic law allows derogation from Article 18 in a state of emergency.217 The Committee declared the Maldives’ reservation to Article 18 to be ‘incompatible with the object and purpose of the Covenant’, where it applied ‘without prejudice to the Constitution of the Republic of Maldives’. The objection was that the reservation ‘applied unrestrictedly to all the provisions of Article 18 of the Covenant, including the right to have or adopt a religion, which right may not be subject to restriction’.218 As already noted, the Committee has focused extensively on the practical operation of exemptions from religious education in public schools in order to accommodate the wishes of parents and guardians in accordance with Article 18(4). 208 E.g., Yemen CCPR/CO/75/YEM (2002) 20; Maldives CCPR/C/MDV/CO/1 (2012) 24 (prohi bition on Maldivian citizens adopting a religion other than Islam). See also Iran A/37/40 (1982) 316. 209 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 34, 35; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 45, 46; Turkmenistan CCPR/C/TKM/CO/1 (2012) 16 & Turkmenistan CCPR/C/TKM/CO/2 (2017) 41; Belarus CCPR/C/BLR/CO/5 (2018) 48; Lithuania CCPR/C/LTU/CO/4 (2018) 26. 210 Bahrain CCPR/C/BHR/CO/1 (2018) 51, 52 (liberty of conscience of members of the Shia community was not effectively guaranteed; recommendation to guarantee that all people within its territory can fully enjoy the right to freedom of conscience, religion or belief). 211 E.g., Bulgaria CCPR A/48/40 (1993) 739 (protection of the security of the State was not one of the criteria listed in Art. 18 of the Covenant, but that was not the case with Bulgarian legislation). See also Kiss, ‘Permissible Limitations on Rights’, who, at p. 296, concludes that the omission of national security was intentional. 212 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 48 (recommendation to revise all relevant laws and practices with a view to removing all restrictions that go beyond the narrowly construed restrictions permitted under Art. 18); Turkmenistan CCPR/C/TKM/CO/2 (2017) 39 (guarantee the effective exercise of freedom of religion and belief in practice and refrain from any action that may restrict it beyond the narrowly construed restrictions permitted under Art. 18). 213 Dominican Republic A/45/40 (1990) 375. 214 Congo A/42/40 (1987) 238. 215 Sweden A/33/40 (1978) 79; Sweden A/41/40 (1986) 146. 216 E.g., Kuwait CCPR/C/KWT/CO/3 (2016) 38, 40, 41; Pakistan CCPR/C/PAK/CO/1 (2017) 34; Bahrain CCPR/C/BHR/CO/1 (2018) 54. See also Ireland CCPR/C/IRL/CO/4 (2014) 22. 217 E.g., Algeria, A/47/40 (1992) 299; Nepal CCPR/C/79/Add.42 (1994) 9; Armenia CCPR/C/79/ Add.100 (1998) 7; Ukraine CCPR/CO/73/UKR (2001) 11; Gambia CCPR/C/GMB/CO/2 (2018) 19 (the Constitution provides for derogation of the right to freedom of thought, conscience and religion during a state of emergency). 218 Maldives CCPR/C/MDV/CO/1 (2012) 5.

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C O N C L US I O N At a time of increasingly negative political discourse and media presentation in some countries directed against those with religious beliefs, there is a greater importance for Article 18 protection in combination with that under Articles 2, 26 and 27. The boundary between protected and prohibited speech under Articles 19 and 20 needs to be observed in this area with special care, for example, to avoid foreclosure of open discussion about religion and other beliefs. The role of the State is to uphold the principles of religious and other pluralism, and to promote conditions in which pluralism across the full variety of belief systems may flourish.219 In Yoon and Choi v. Korea the Committee responded to State arguments based on social cohesion and equitability, with the statement that ‘respect on the part of the State for conscientious beliefs and manifestations is itself an important factor in ensuring cohesive and stable pluralism in society’.220 The review in the previous section of the requirements for implementing Article 18 indicate the precision required in domestic law, particularly in confining suitably the eligible grounds of limitation, avoiding any possible restriction on absolute protection and avoiding derogation of any sort. Recent religious dress code decisions against France demonstrate the contrast between, on the one hand, the ease of satisfying as legitimate the purpose of measures, and, on the other hand, the stringency of the test of necessity, requiring ‘evidence to a high standard in proof of necessity’. The mere fact that a measure serves a theoretically acceptable aim does little to provide the justification needed, yet States often rely on that alone. This was most obvious in Bikramjit Singh.221 Article 18 decisions which treat wearing the headscarf as a legitimate manifestation of religion, including Hudoyberganova v. Uzbekistan, are in clear divergence from European Convention decisions which proceed on the long-established basis that the headscarf is a ‘powerful external symbol’ akin to proselytism, warranting restriction.222 Yaker v. France and Hebbadj v. France produced findings of Article 18 violation when criminal provisions which prohibited concealing the face in public areas on public order and safety grounds were not justified because they applied comprehensively in public at all times: the State needed but failed to describe how such a practice posed ‘a specific and significant threat to public order and safety’. In answering the State’s reliance on ‘the fundamental rights and 219 For the relevance of belief content, see Paul M. Taylor, ‘Controversial Doctrine: the Relevance of Religious Content in the Supervisory Role of International Human Rights Bodies’, in Rex Adhar (ed.), Research Handbook on Law and Religion (Edward Elgar, 2018), p. 309. 220 Yoon and Choi v. Korea, CCPR/C/88/D/1321 1322/2004, 3 November 2006 [8.4]. 221 Bikramjit Singh v. France, CCPR/C/106/D/1852/2008, 1 November 2012 [8.6] (there being no ‘compelling evidence’). 222 Dahlab v. Switzerland, App. No. 42393/98, ECHR, 15 February 2001; Leyla Şahin v. Turkey, App. No. 44774/98, [2005] ECHR 819. See chapter on Article 26: Equality before the Law Equal Protection of the Law, sections ‘Grounds of Discrimination’, ‘Religion’, ‘Religious Practice’.

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freedoms of others’ the Committee required identification of the specific fundamental rights affected and the persons affected. There was also a failure to demonstrate that the ban was the least restrictive measure necessary. The lesson is that Article 18(3) exceptions are to be interpreted strictly and not applied in the abstract.223 This degree of specificity required in justification matches similar developments under Articles 19 and 21. The finding of violation in F.A. v. France in the dismissal of an employee of a private association from what was claimed to be a ‘belief-based company’, for failing to observe ‘neutrality’ by wearing the headscarf, was the result of obvious incongruity between the ostensible aim of the restriction and the association’s constitution.224 That decision also touched on an important issue discussed in this chapter (though not aired in that decision) concerning the scope available to an organisation to require employees to uphold its values. It has been given greater attention by the Special Rapporteur than the Committee, in support of freedom for religious employers to apply religious rules of conduct, depending on the specific purpose of employment. The organisational dimension of Article 18 protection exists in parallel with Article 22 to support the institutional autonomy of religious organisations within certain limits.

223 Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.4] [7.12]; Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [8.4] [8.12]. 224 F.A. v. France, CCPR/C/123/D/2662/2015, 16 July 2018 [8.7], [8.9].

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Article 19: Freedom of Expression

INTRODUCTION ARTICLE 19(1): FREEDOM OF OPINION ARTICLE 19(2): FREEDOM OF EXPRESSION ARTICLE 19(3): TERMS OF LIMITATION IMPLEMENTATION CONCLUSION

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Covenant Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Comparable Provisions in Other International Instruments European Convention: Article 10. American Convention on Human Rights: Article 13(1)–(4). African Charter on Human and Peoples’ Rights: Article 9.

INTRODUCTION The freedoms of opinion and expression are independent but coexist as adjuvants. Freedom of expression depends on the anterior right to hold an opinion, which in turn is shaped by others exercising their right to impart information and ideas. The freedoms of opinion and expression facilitate enquiry and the dissemination of information of every kind, through all conceivable media, as well as the propagation of political and other perspectives, and scrutiny and accountability of State 538

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institutions. They depend on conditions which support a multiplicity of influences on opinion, especially through mass media channels. They are personal freedoms, but are also cardinal to the proper functioning of democracy, free participation in public affairs and accountability of those wielding power. They are the rationale for most forms of association and assembly.1 As the Committee put it: Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.2

The freedoms of opinion and expression are particularly closely related to the freedom of thought, conscience and religion. It is difficult to divorce development of belief (protected in Article 18) from iterative engagement with the neighbouring freedoms of opinion and expression. The freedom of opinion is inviolable, like the ‘inner’ protection of Article 18(1)). However, the terms of limitation of Article 19(3) differ in important particulars from those of its counterparts. Freedom of expression may be restricted according to Article 19(3) on the basis of ‘respect of the rights or reputations of others’ (rather than ‘the rights and freedoms of others’ provided for in Articles 12(4), 21 and 22(2), or the ‘fundamental rights and freedoms of others’ in the case of Article 18(3)). Article 19(3) is unique in the Covenant in stating that the exercise of freedom carries with it ‘special duties and responsibilities’, a qualification that has regard, for example, to the power of mass media, social media3 and the risks of the negative impact on the rights of others, particularly those affected by reputational damage (‘honour and reputation’ in Article 17(1)), and hate speech, to be prohibited by Article 20(2). Given the unusual limitation text of Article 19(3), it 1 For a succinct summary of the objectives of freedom of expression, see R v. Secretary of State for the Home Department, ex parte Simms [2002] 2 AC 115, 126, per Lord Steyn: ‘First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.’ 2 General Comment No. 34: Article 19 (Freedoms of Opinion and Expression), 12 September 2011, CCPR/C/GC/34 (GC 34) [2] (footnote omitted). Tarlach McGonagle and Yvonne Donders offer detailed coverage of the rights of freedom of expression and information in UN legal instruments (including on the work of the UN Special Rapporteur on Freedom of Expression) in The United Nations and Freedom of Expression and Information (Cambridge University Press, 2015). 3 For a critique on the United Kingdom, see Dominic McGoldrick, ‘The Limits of Freedom of Expression on Facebook and Social Networking Sites: a UK Perspective’, (2013) 13 HRLR, p. 125; and on Nordic countries, Mart Susi, Jukka Viljanen, Eiríkur Jónsson and Artūrs Kučs, Human Rights Law and Regulating Freedom of Expression in New Media: Lessons from Nordic Approaches (Routledge, 2018).

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may make a difference whether certain forms of expression are protected under Article 19 or another provision, such as Article 21.4 Interaction between Article 19 and Other Covenant Provisions The interrelation between Articles 5, 19, 20 and 21 is important to understand, as part of the internal consistency and integrity of the Covenant scheme. Articles 5 and 20 represent immovable outer limits to the ‘expressive freedoms’ (i.e., those in Articles 18, 19, 21 and 22). Article 5 rules out the suggestion that anything in the Covenant implies the right to undertake activities aimed at the destruction of the Covenant rights of others, or at their limitation to a greater extent than is permitted. Conduct falling within that description will always be outside the protection of the Covenant.5 Article 20(2) obliges States to prohibit advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence.6 Restrictions on conduct falling within Article 20(2) will always be justified under Article 19(3) (as well as under the limitation terms of other applicable Covenant provisions, such as Articles 18(3), 21 and 22(2)). The interrelation between Articles 20 and 19 is discussed further in the chapter on Article 20: Propaganda for War and Hate Speech. At the same time, Article 19 offers protection to the expression of ‘ideas of all kinds’, including those which are ‘deeply offensive’.7 Strict justification is required for all restrictions on freedom of expression, under Article 19(3), including of such ideas. It may also be said that particular value is placed on the freedom when exercised in certain circumstances, for example, to challenge public figures,8 or in support of Article 25 rights when airing public and political issues.9 There is a strong coincidence between Article 19 and other Covenant provisions, including Article 6, in the threats, violent assaults and murder of journalists, human rights defenders and others posing political opposition (constantly reported in Concluding Observations);10 Article 7, in cruel, inhuman or degrading treatment 4 E.g., Kivenmaa v. Finland, CCPR/C/50/D/412/1990, 31 March 1994 [9.2] [9.3]. 5 See chapter on Article 5: Bar on Interpreting the Covenant in Abuse of Rights, section ‘Article 5(1)’, and as an illustration M.A. v. Italy, Communication No. 117/1981, A/39/40 at 190 (1984), 21 September 1981 [13.3] (the acts of which M.A. was convicted (reorganising the dissolved fascist party) were of a kind which are removed from the protection of the Covenant by Article 5). 6 See chapter on Article 20: Propaganda for War and Hate Speech, section ‘Hate Speech: Article 20(2)’. 7 GC 34 [11]. 8 E.g., Bodrožić v. Serbia and Montenegro, CCPR/C/85/D/1180/2003, 31 October 2005 [7.2] (in circumstances of public debate in a democratic society, especially in the media, concerning figures in the political domain, the value placed by the Covenant upon uninhibited expression is particularly high). 9 General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7 (GC 25) [25]. 10 For numerous instances, see chapter on Article 6: The Right to Life, section ‘Interaction between Article 6 and other Covenant Provisions’.

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for exercising the freedom of opinion or expression;11 Article 9, in arrest and detention under vaguely defined offences affecting free speech (including those directed against terrorism,12 defamation or blasphemy);13 Article 10, in the adverse conditions while imprisoned on the basis of political opinion;14 Article 12, in travel bans used to limit the activities of journalists and political opponents;15 Article 14, where charges are laid based on legislation susceptible to wide interpretation to limit freedom of expression,16 or an unfair trial follows charges brought for exercising the freedom of expression;17 Article 17, in instances of compulsion to reveal political opinions and other opinions;18 Article 18, through restrictions on the importation and distribution of religious materials, or visits from foreigners for the purposes of preaching or conducting other religious activity;19 Article 21, in the unjustified (and often violent) disruption of demonstrations, or the refusal to grant permission for an assembly as a means of limiting protest;20 Article 22, in unjustified (usually discriminatory) restrictions on registering organisations;21 Article 24, in measures to protect children against exploitation through child pornography;22 Article 25, because of the dependence of the democratic rights in that provision on the freedoms of opinion and expression, which are severely diminished by laws creating liability for insulting public officials or the head of state, or failure to show respect to the president and other senior officials;23 Article 25 rights are also constrained by unjustified regulation of election campaigns, including by giving power to certain bodies to approve (or not) specific campaigning acts, by requiring use of a particular 11 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018 [10.7]. 12 Saidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018 [9.7] [9.8] (unlawful detention of a prominent politician); Khadzhiyev v. Turkmenistan, CCPR/C/122/D/2252/2013, 6 April 2018 [7.7] (arbitrary detention for journalistic and human rights activities). See also sections ‘Domestic Law Requirements’ and ‘National Security’, this chapter, below; and chapter on Article 9: Liberty and Security, section ‘Interaction between Article 9 and Other Covenant Provisions’. 13 See section ‘Respect of the Rights and Reputations of Others’, this chapter, below. 14 E.g., Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.2]; Kozulina v. Belarus, CCPR/C/ 112/D/1773/2008, 21 October 2014 [9.3], [9.5]. 15 See chapter on Article 12: Freedom of Movement of the Person, sections ‘Interaction between Article 12 and Other Covenant Provisions’ and ‘Provided by Law’. 16 E.g., Nasheed v. Maldives, CCPR/C/122/D/2270 & 2851/2013, 4 April 2018 [8.3] (failure to comply with the principle of legal certainty and predictability). 17 E.g., Esergepov v. Kazakhstan, CCPR/C/116/D/2129/2012, 29 March 2016 [11.3]. 18 E.g., Alger v. Australia, CCPR/C/120/D/2237/2013, 13 July 2017 (inadmissible Art. 17 claim because an invitation to demonstrate eligibility for an exemption from voting did not require such disclosure). 19 E.g., Malakhovsky and Pikul v. Belarus, CCPR/C/84/D/1207/2003, 26 July 2005 [7.4] [7.6]. 20 E.g., Youbko v. Belarus, CCPR/C/110/D/1903/2009, 17 March 2014 [9.7]. 21 See chapter on Article 22: Freedom of Association, sections ‘Public Order’ and ‘Protection of Public Health or Morals’. 22 E.g., Kerrouche v. Algeria, CCPR/C/118/D/2128/2012, 3 November 2016 [8.7] [8.8] (offence to defame and insult State officials). See also section ‘Public Health and Public Morals’, this chapter, below. 23 See sections ‘Domestic Law Requirements’, ‘Respect of the Rights and Reputations of Others’ and ‘National Security’, this chapter, below.

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language, by confining campaigning to particular periods, and limitations on the use of broadcast media;24 Articles 2 and 26, in reprisals (because of political opinion) against individuals who criticise their governments, and in laws which authorise restrictions on freedom of expression on a discriminatory basis;25 and Article 27, when charges are brought against members of indigenous communities merely for protesting or demanding the protection of their land rights,26 when indigenous peoples are not able to express themselves in their own languages and promote their cultures through media such as community radio stations,27 or laws criminalising the publication of material containing place names different from those officially allowed.28 Chapter Outline This chapter should be read in conjunction with the chapter on Article 20, to complete the discussion on the Article 19(3) terms of limitation, given the way in which the mandated prohibition of certain types of speech under Article 20 maintains consistency with Article 19(3). This chapter introduces the freedoms of opinion and expression (including freedom to ‘seek’ and ‘receive’ information) in order to explain their scope under Article 19(1) and (2), their unusual features and certain requirements for implementation. The terms of limitation in Article 19(3) and the disciplines which are to be observed when restricting the freedom of expression are discussed at some length, informed by the Committee’s recent General Comment 34, a theme that continues in the discussion on the individual grounds of limitation. Issues of implementation are considered briefly together at the end, although they also form part of the narrative of most sections.

A RT IC L E 1 9 ( 1 ) : F R E E D O M O F O P I N IO N Freedom of opinion includes the right to hold opinions freely (whether of a political, scientific, historic, moral, religious or other kind) and not be subject to coercion, criminalisation, harassment, intimidation or stigmatisation, whether on the basis of actual, perceived or supposed opinions. It also includes freedom not to express one’s opinion.29 24 See chapter on Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service, section ‘Interaction between Article 25 and Other Covenant Provisions’. 25 E.g.. Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012. 26 E.g., Chile CCPR/C/CHL/CO/5 (2007) 7. 27 E.g., Guatemala CCPR/C/GTM/CO/4 (2018) 38. 28 E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 21. For other examples, see chapter on Article 27: Ethnic, Religious and Linguistic Minorities, section ‘Interaction between Article 27 and Other Covenant Provisions’. 29 GC 34 [9] [10].

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Freedom of opinion is not susceptible to any restriction or limitation whatsoever.30 It is also considered to be non-derogable, even though Article 19 is not listed in Article 4 as one of the rights from which no derogation is permitted during a proclaimed State of emergency.31 Any reservation to Article 19(1) would be incompatible with the object and purpose of the Covenant, as would a general reservation to the rights in Article 19(2), rather than to particular elements.32 Freedom of opinion has much in common with the forum internum protection of Article 18. Although there is no explicit mention in Article 19(1) of coercion which would impair an individual’s freedom to hold opinions (which was included in Article 18(2) in response to the specific, identified need discussed in the chapter on Article 18),33 freedom from coercion in the right to hold opinions is indicated in Article 19(1) by the words ‘without interference’. An extreme form of coercion resulted in a finding of violation of Article 19(1) in Kang v. Korea because the author, who was a State-labelled communist, was held in solitary confinement for thirteen years for his refusal to ‘convert’. The Committee recognised the coercive nature of the ‘ideology conversion system’ to which he was subjected, and the ‘oath of law-abidance system’ which succeeded it, with a view to altering his political opinion by a system of inducements of preferential treatment. However, for reasons discussed in the chapter on Article 18,34 the Committee was reluctant to find a violation of the as yet not well-acknowledged realm of absolute protection within either Articles 18 or 19, and treated it as a restriction on freedom of expression and of manifestation of belief.35 The term ‘without interference’ in Article 19(1) covers private as well as State sources. The qualification ‘without governmental interference’ was rejected in its 30 E.g., Hungary A/35/40 (1980) 312 (the Committee wondered how the right to choose one’s ideology could be reconciled with the Constitution, which stated that civic rights had to be exercised in harmony with the interests of a socialist society); Iraq A/35/40 (1980) 136 (the right to freedom of opinion is an absolute and unqualified right which could not be restricted except within the terms of Art. 4, and the question was asked whether the exercise of that right was subject to restrictions and reservations). 31 GC 34 [5]; General Comment No. 29: Article 4 (Derogations during a State of Emergency), 31 August 2001, CCPR/C/21/Rev.1/Add.11 (GC 29) [11], [13]. See also El Salvador A/42/40 (1987) 166 (one member wished to know what possible justification there could be for restricting freedom of opinion during the state of emergency). 32 GC 34 [6]; General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, CCPR/C/21/Rev.1/Add.6 [6] [8]. 33 See chapter on Article 18: Freedom of Thought, Conscience and Religion, section ‘The Origins of Article 18(2)’. 34 See chapter on Article 18: Freedom of Thought, Conscience and Religion, sections ‘Coercion’ and ‘Compulsory Military Service’. 35 Yong Joo Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.2] (violation of Arts 18(1) and 19(1), both in conjunction with Art. 26). Cf. Sannikov v. Belarus, CCPR/C/122/D/2212/ 2012, 6 April 2018 [6.10] [6.11] in which the Committee was content to make a finding only under Art. 19(2) (not 19(1)) for the prosecution and sentence of five years’ imprisonment on an opposition candidate for exercising his freedom of expression.

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drafting, in favour of protection against every form of interference.36 (It is in contrast to Article 10 of the European Convention, which refers to ‘interference by public authority’.) The non-discrimination provisions of Articles 2 and 26 include ‘political and other opinion’ as a prohibited ground of discrimination, and overlap with the right to hold opinions in Article 19(1).

ARTICLE 19(2): FREEDOM OF EXPRESSION Scope Freedom of expression (as with freedom of opinion) is an indispensable condition ‘for the free development of the person’.37 It is fundamental in cultivating the arts and entertainment. It occupies a central role in informing matters of public interest, and in contributing to the essential characteristics of a democratic society.38 It promotes political participation through freedom of assembly under Article 21 (as demonstrations inform and heighten personal accountability, and public scrutiny of those involved in the conduct of public affairs); freedom of association under Article 22 (as campaigning and open debate contributes to a plurality of political representation); and it furnishes the substance on which Article 25 rights depend (to participate in public affairs directly or through elected representatives, to vote and be elected). Without the expressive freedoms the rights in Article 25 have no prospect of fulfilling their purpose. Freedom of expression protects the dissemination of political ideas,39 advertising,40 teaching in accordance with personal views,41 and publication of content which many, in some cases most, may find unwelcome or repugnant (spanning pornography, offensive art, anti-Semitic messages42 or messages in support of terrorism).43 It also underpins academic

36 E/CN.4/365 and E/CN.4/440 discussed by Nowak, CCPR Commentary, p. 441. 37 GC 34 [2]; General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9 (GC 27) [1]. 38 For the principles of a democratic society with significance for all limitation provisions, see chapter on Article 21: Freedom of Assembly, section ‘Necessary in a Democratic Society’. For a summary of the travaux in reference to Art. 19, see Svensson McCarthy, The International Law of Human Rights and States of Exception, pp. 106 7. 39 Kalenga v. Zambia, CCPR/C/48/D/326/1988 (1993), 27 July 1993 [6.2]; Aduayom et al. v. Togo, CCPR/C/51/D/422/1990, 423/1990 and 424/1990, 12 July 1996 [7.4]. 40 Ballantyne et al. v. Canada, CCPR/C/47/D/359/1989 and 385/1989/Rev.1, 18 October 1990 [11.3]. 41 Paes v. Colombia, Communication No. 195/1985, A/45/40 vol. 2 (1990) p. 43, 12 July 1990 [5.8] (freedom of expression and of opinion will usually cover the freedom of teachers to teach their subjects in accordance with their own views). 42 GC 34 [11]; Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000 [11.1]. 43 GC 34 [46].

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freedom.44 The means of impartation may include intrusive methods such as telesales, door-knocking45 or soap-boxing.46 Some Committee decisions should be read with caution. On occasion the Committee has decided that certain claims do not raise issues under Article 19(2), suggesting some confining of scope for the freedom of expression, which may not have been intended, when it would have been preferable to avoid anomaly by subjecting the restrictions in question to analysis under Article 19(3). In Guesdon v. France it determined that there is no right to use the language of one’s choice in a court of law (instead of treating the refusal to allow the author and twelve witnesses to give testimony in Breton in a Frenchspeaking court as a restriction requiring justification).47 In S.G. v. France it found that defacing of road signs did not raise issues under Article 19 in a case involving protest at the lack of bilingual road signs (when it would seem difficult to treat this as anything other than the exercise of freedom of expression).48 In Nam v. Korea it decided that Article 19 did not include a right to have educational material scrutinised for approval or rejection by authorities as a textbook for use in public middle schools (the absence of such procedure might better have been treated as a restriction on dissemination of the textbook in those schools).49 However, Nam might be treated as analogous to Hertzberg et al. v. Finland discussed below, which turned on the limited extent to which individuals have a right to access broadcast media to carry their content.50 Access to Information Freedom to ‘seek’ and ‘receive’ information and ideas of all kinds is a crucial but less wonted aspect of Article 19(2) than the freedom to impart. It is a right to access generally accessible information, which extends beyond passive reception (of, say, broadcasts) to active investigation and exploration.51 It embraces a right 44 For the treatment of academic freedom under the Covenant, ICESCR and European Convention, see Paul M. Taylor, ‘Academic Freedom: Between Indispensable Right and Scenic Accessory’, (2018) 35 Aust. YBIL, p. 157. 45 Japan CCPR/C/JPN/CO/5 (2008) 26 (unreasonable restrictions such as the prohibition of door to door canvassing). 46 Coleman v. Australia, CCPR/C/87/D/1157/2003, 17 July 2006 [7.2]. 47 Guesdon v. France, CCPR/C/39/D/219/1986 (1990), 25 July 1990 [7.2] (claim inadmissible since the inability to speak the language of choice before the French courts raised no issues under Art. 19(2)). 48 S.G. v. France, CCPR/C/43/D/347/1988, 1 November 1991 [5.2] (inadmissible because ‘the defacing of road signs does not raise issues under article 19’). 49 Nam v. Korea, CCPR/C/78/D/693/1996, 28 July 2003 [10] (cf. dissenting Individual Opinion of Mr Solari Yrigoyen at [2] (the fact that the author had no possibility of submitting his textbook for approval or rejection on valid grounds, in his view, gave rise to a violation)). 50 See section ‘An Independent and Diverse Media’, this chapter, below. 51 For relevant travaux préparatoires pointing to the deliberateness of the prevailing text in securing active access, see Nowak, CCPR Commentary, p. 446.

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of access to information held by public bodies.52 To give effect to it, States should for their part put in the public domain proactively government information of public interest, and make every effort to ensure ‘easy, prompt, effective and practical access’ to it.53 The freedom to ‘seek’ and ‘receive’ is susceptible to restriction under Article 19(3), for example, on national security or public order grounds to prevent access to official secrets, or in the interests of ‘the rights or reputations of others’ to limit intrusive privacy incursion under Article 17. Access to information under Article 19(2) is indispensable to the individual in forming their opinion protected by Article 19(1) (as well as their beliefs protected by Article 18). Journalists play a special role in uncovering and disseminating information, as well as in shaping opinion.54 Both the freedoms to seek and receive information and to impart it were found to be violated in Zhagiparov v. Kazakhstan in sanctions applied to the editor of the regional newspaper for participating in an unauthorised public event when he was covering a public gathering and even showed his professional accreditation to the police.55 General Comment 34 endorses the principle that a ‘free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights’.56 Journalists do not enjoy access to information beyond what is generally accessible, but they are entitled not to disclose their sources (known as ‘reporter’s privilege’) as a component of Article 19(2).57 It safeguards that particular information against access by others. The Article 19 freedoms more generally resist restrictive schemes for registration or licensing of journalists. As the Committee explained in Koktish v. Belarus when considering accreditation schemes for journalists, these must be applied in a manner that is non-discriminatory and compatible with Article 19 and other provisions of the Covenant, based on objective criteria and taking into account that journalism is a function shared by a wide range of actors. 52 GC 34 [18]. The claim was inadmissible in N.D. v. Russian Federation, CCPR/C/120/D/2161/ 2012, 14 July 2017 [6.6] because the relevant department did not have the requested information in its possession. 53 GC 34 [19]. 54 For the application of legal standards and self regulation of journalistic practice see Merris Amos, Jackie Harrison and Lorna Woods, Freedom of Expression and the Media (Martinus Nijhoff Publishers, 2012). 55 Zhagiparov v. Kazakhstan, CCPR/C/124/D/2441/2014, 25 October 2018 [13.4]. See also Pranevich v. Belarus, CCPR/C/124/D/2251/2013, 15 October 2018 [6.5] (it is normally incom patible with Art. 19(3) to restrict the freedom of journalists and others who seek to exercise their freedom of expression). 56 GC 34 [13] (see [13] [16], [39] and [44] [46] for other references to the media). 57 GC 34 [45]. See also Bolivia A/44/40 (1989) 422 (questioning what type of protection was guaranteed for journalists’ sources); Kuwait CCPR/CO/69/KWT (2000) 20 (journalists required to reveal their sources); Burundi CPR/C/BDI/CO/2 (2014) 20 (a broad exception to provisions for the protection of journalists’ sources in cases involving national security, public order, defence secrets and the physical or mental integrity of one or more persons).

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The relevant criteria for accreditation must be specific, fair and reasonable, and their application transparent.58 The Committee first considered the importance of media access to information under OP1 in Gauthier v. Canada. Press facilities in the Canadian Parliament were granted only to members of a private association, allowing the author, a newspaper publisher, at best only a temporary pass without access to press communiqués or the ability to take notes in parliamentary sittings. In finding a violation of Article 19(2) the Committee was influenced by the importance of free communication of information and ideas about public and political issues under Article 25, which implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members.59 Rodriguez Castañeda v. Mexico concerned the denial of a request for access to information, but turned in large part on the practicalities involved. The author wanted all used, unused and spoilt ballot papers from all the polling stations for the 2006 presidential election, to analyse how accurately voting was recorded in polling station records. Votes were already scrutinised in the presence of representatives of the political parties, as well as by accredited election observers in some cases, and the results returned by each polling station could be challenged and submitted for review by higher authorities, as indeed had occurred in this election. The refusal was proportionate, important factors being the existence of a legal mechanism to verify the vote count, the information already provided, the nature of the information sought and the need to preserve its integrity, and the complexity of meeting the request.60 Any one may benefit from protection comparable with that given to journalists, depending on their reason for requiring access to the information. In Toktakunov v. Kyrgyzstan a member of the general public and legal consultant of a human rights NGO successfully claimed that the authority’s refusal to provide him with information on the number of individuals sentenced to death violated his right to seek and receive information. When exercising watchdog functions on matters of legitimate public concern, associations or private individuals should be afforded similar protection to the press when requesting access to State-held information. In such circumstances the right of access to it included two dimensions of the freedom, individual and social, that must be guaranteed simultaneously.61 There 58 59 60 61

Koktish v. Belarus, CCPR/C/111/D/1985/2010, 24 July 2014 [8.3]. Gauthier v. Canada, CCPR/C/65/D/633/1995, 5 May 1999 [13.4], citing GC 25 [25]. Castañeda v. Mexico, CCPR/C/108/D/2202/2012, 18 July 2013 [7.7]. Toktakunov v. Kyrgyzstan, CCPR/C/101/D/1470/2006, 28 March 2011 [7.4] (also at [7.7] the general public had a legitimate interest in having access to information on the use of the death penalty). Cf. S.B. v. Kyrgysztan, CCPR/C/96/D/1877/2009, 30 July 2009 [4.2] (similar claim to that in Toktakunov inadmissible as actio popularis where author did not explain why exactly he, personally, needed the information in question; rather, he contended that this was a ‘matter of public interest’).

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was similarly a violation of the right to seek and receive information in Kungurov v. Uzbekistan because the author and other members of a human rights factfinding NGO that was denied official registration were prevented from gathering information about the human rights situation in Uzbekistan.62 The right supplements other Covenant provisions guaranteeing access to information. The obligation under Article 7 to provide the family of victims of disappearance with an effective remedy includes providing them with detailed information about the results of any investigation.63 Likewise, the lack of information provided to relatives about an executed prisoner, including the location of their grave, was the basis of an Article 7 finding in the continued anguish and mental stress caused to them.64 An aspect of the Article 7 findings in Mellet v. Ireland and Whelan v. Ireland in the suffering for women who had to travel overseas for an abortion when the foetus was not viable was further aggravated by the obstacles they faced in receiving needed information about appropriate medical options from known and trusted medical providers (though the Committee did not separately examine the Article 19 allegations).65 Article 14 entitles those accused of criminal offences to access certain information to enable them to assert their rights.66 For those detained, the consistent and unexplained denial of access to relevant medical records has been sufficient for finding a violation of Article 10(1).67 Article 17 enables an individual to establish what personal data is stored electronically by public authorities, and for what purposes, and to call for rectification of inaccurate information.68 In certain circumstances Article 27 may be used to secure access to publications intended for ethnic, religious or linguistic minorities. In Mavlonov and Sa’di v. Uzbekistan registration restrictions resulted in cancellation of the right to publish a newspaper serving a minority group, carrying educational and other materials for Tajik students and youth on events and matters of cultural interest. The Committee found a violation of Article 19 and Article 27, read together with Article 2, given that the use of a minority language press was an essential element of the Tajik minority’s culture, as a means of airing issues of significance and importance to the Tajik minority community.69 (This is in contrast to P.L. v. Belarus in which a claim 62 63 64 65 66 67 68 69

Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011 [8.9]. Marouf v. Algeria, CCPR/C/110/D/1889/2009, 21 March 2014 [9]. E.g., Kovaleva et al. v. Belarus, CCPR/C/106/D/2120/2011, 29 October 2012 [11.10]. Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.3] [7.6]; Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017 [7.3] [7.6]. General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 (GC 32) [33]. Zheludkov v. Ukraine, CCPR/C/75/D/726/1996, 29 October 2002 [8.4]. General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988 [10]; GC 34 [18]. Mavlonov and Sa’di v. Uzbekistan, CCPR/C/95/D/1334/2004, 19 March 2009 [8.7].

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arising out of the decision by a State-owned subscription service to drop a particular newspaper which was otherwise available to the author was inadmissible.70) Access to information is especially important for minorities, to enable their members to celebrate minority culture, religion or language, when threatened with the passing of generations with the most immediate connection with the minority identity.71 The right of access to information has arisen in Concluding Observations, for example, in the absence of legislation protecting the right,72 in response to allegations that the State had blocked access to internet sites used by human rights defenders or political activists,73 had dismantled private satellite dishes to prevent access to information from foreign sources,74 more generally that internet access to the public was limited and monitored,75 and that online media outlets were State-controlled.76 The Committee has also been concerned about restrictions as a result of laws concerning blasphemy and censorship,77 and where access to information about abortion services was limited.78 An Independent and Diverse Media In a democratic society the right to freedom of expression and of a free and uncensored press or other media are of ‘paramount importance’.79 General Comment 34 charges States to ‘take particular care to encourage an independent and diverse media’,80 and to ‘take all necessary steps to foster the 70 P.L. v. Belarus, CCPR/C/102/D/1814/2008, 26 July 2011 [6.3] (absence of sufficient information allowing the Committee to evaluate the extent of the interference). 71 For State responsibilities to minorities when a decision may substantially affect their way of life and culture, see Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009 [7.6] [7.7]. See also Ballantyne et al. v. Canada, CCPR/C/47/D/359/1989 and 385/1989/Rev.1, 18 October 1990 [11.4]. 72 E.g., Jamaica CCPR/C/JAM/CO/4 (2016) 48 (recommendation to take measures to enhance full implementation of its law on access to information); Namibia CCPR/C/NAM/CO/2 (2016) 40 (the State Party should develop and adopt new legislation on the right to access information); Gambia CCPR/C/GMB/CO/2 (2018) 40 (expedite the enactment of relevant legislation). 73 E.g., Syria CCPR/CO/84/SYR (2005) 13. See also Argentina A/45/40 (1990) 225; Austria A/47/ 40 (1992) 110. 74 Turkmenistan CCPR/C/TKM/CO/2 (2017) 42. 75 E.g., Iran CCPR/C/IRN/CO/3 (2011) 27. See also Mongolia CCPR/C/MNG/CO/6 (2017) 37 (broad legal restrictions on the media, including internet media); Cameroon CCPR/C/CMR/CO/ 5 (2017) 41 (shutdowns of Internet access for months at a time). 76 E.g., Belarus CCPR/C/BLR/CO/5 (2018) 49 (legislation extended State control to online media outlets and introduced a procedure for registration as official online media outlets with the obligation for news portals to install mandatory identification of website visitors). 77 Ireland CCPR/C/79/Add.21 (1993) 15 (also interviews were prohibited with certain groups outside the borders by the broadcast media). On blasphemy see also chapter on Article 20: Propaganda for War and Hate Speech, section ‘Domestic Measures to “Prohibit by Law”’. 78 E.g., Ireland CCPR/C/79/Add.21 (1993) 15; Colombia CCPR/C/COL/CO/7 (2016) 21; Pakistan CCPR/C/PAK/CO/1 (2017) 15. 79 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.8]; GC 25 [25]. 80 GC 34 [14].

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independence of . . . new media and to ensure access’ to it.81 The Committee also emphasises the importance of guaranteeing independence and editorial freedom in public broadcast services, and of avoiding funding practices which undermine the independence of those services, such as subsidies to media outlets.82 The press and other media are not considered ‘free’ if subject to excessive censorship or licensing restrictions.83 Licensing conditions on broadcast media should be reasonable and objective, clear, transparent, non-discriminatory and Covenant-compliant,84 and free of preventive formalities such as registration.85 The Committee is particularly concerned to ensure plurality in the media, by avoiding monopolies and other concentrations, to ensure a diversity of sources and views.86 It recommends that States establish an independent public broadcasting licensing authority. Where capacity is limited, there should be an equitable allocation of access and frequencies between public, commercial and community 81 GC 34 [15]. 82 GC 34 [41]. 83 E.g., Ireland A/48/40 (1993) 587 (censorship through seizure of personal property at customs posts); Iraq CCPR/C/79/Add.84 (1997) 17 (restrictions, prohibitions and censorship imposed on the creation and functioning of independent broadcasting media, as well as on the dissemination and broadcasting of foreign media); Zimbabwe CCPR/C/79/Add.89 (1998) 22 (mass media as well as many other forms of expression were subject to censorship and largely controlled by the government); Gambia CCPR/CO/75/GMB (2002) 23 (political parties opposed to the govern ment were routinely disadvantaged and discriminated against by denial or serious limitation of the possibility of radio or television broadcasts); Togo CCPR/C/79/Add.36 (1994) 11, and Togo CCPR/C/TGO/CO/4 (2011) 20 (censorship and control by the authorities over the press, radio and television); Madagascar CCPR/C/MDG/CO/4 (2017) 49 (opposition media had their fre quencies jammed and their power supplies cut); Guinea CCPR/C/GIN/CO/3 (2018) 43 (arbitrary closure and suspension of private media and interactive broadcasts). For further information on the ownership of broadcast media, see discussion in section ‘Special Duties and Responsibilities’, this chapter, below. 84 GC 34 [39]. 85 Mavlonov and Sa’di v. Uzbekistan, CCPR/C/95/D/1334/2004, 19 March 2009 [8.3]. 86 GC 34 [40]. For concern about concentration of media ownership and influence by political and private interests that may not reflect public interest, see, e.g., Argentina CCPR/C/ARG/CO/5 (2016) 35, 36; Moldova CCPR/C/MDA/CO/3 (2016) 31; Bulgaria CCPR/C/BGR/CO/4 (2018) 37. For allocation of public funding for the media and journalists in a transparent and non discriminatory manner, see, e.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 38. For recommendations that efforts be made to increase media pluralism and the diversity of views and information accessible to the public, see, e.g., Moldova CCPR/C/MDA/CO/3 (2016) 32; Bulgaria CCPR/C/ BGR/CO/4 (2018) 38. For other aspects of media independence, see, e.g., Azerbaijan CCPR/C/ AZE/CO/4 (2016) 36 (arbitrary interference with media freedom, including revocation of broad cast licences allegedly on political grounds; politically motivated proceedings against indepen dent media outlets; and alleged financial pressure on the independent newspaper); Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 37 (the media was subjected to excessive influence from governments, political parties and private interest groups); Serbia CCPR/C/SRB/CO/3 (2017) 38 (ongoing public influence exercised on some media); Turkmenistan CCPR/C/TKM/ CO/2 (2017) 42 (absence of a genuine independent media despite legislation); Belarus CCPR/C/ BLR/CO/5 (2018) 49 (executive power to shut down media outlets and use of warnings to media outlets that had a chilling effect); Hungary CCPR/C/HUN/CO/6 (2018) 57 (the regulatory bodies lacked sufficient independence to perform their functions). For further information on the own ership of broadcast media, see discussion in section ‘Special Duties and Responsibilities’, below.

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broadcasters,87 and in any event, private media should not be at a relative disadvantage to public media in access to media channels.88 The Committee found a violation of Article 19(2) in Agazade and Jafarov v. Azerbaijan in the author’s inability to obtain radio broadcasting licences as a result of the State’s failure to publish, as required by domestic law, the list of available broadcasting frequencies or to organise on a regular basis multiple open tenders. While acknowledging the need to regulate licensing conditions, the State did not adequately explain why it did not publish the list of available frequencies, nor how the goal of ensuring pluralism in the imparting of information through radio broadcasts had been met in the absence of regular new tenders to allocate frequencies. It also did not explain how the goals of pluralism and diversity could be reconciled with the practice of allocating broadcasting frequencies without a tender to entities with apparent ties with the government.89 Freedom of expression extends to the choice of medium, but does not include an unfettered right to hold press conferences within the parliamentary precincts, or to have such press conferences broadcast by others.90

ARTICLE 19(3): TERMS OF LIMITATION Disciplines Applicable to Limitation This section addresses the disciplines which apply under Article 19(3) whenever an Article 19(2) right is restricted. They are summarised in General Comment 34, which draws on principles from a number of earlier General Comments, and may be taken to reflect commonality across certain aspects of Articles 12(3), 18(3), 19(3), 21 and 22(2).

Domestic Law Requirements For its explanation of domestic law requirements General Comment 34 adopted principles from three other General Comments. First, it stated that Article 19 rights are to be given effect in domestic law in a manner consistent with the guidance in General Comment 31 on the nature of the 87 As to the extent to which individuals have a right to access broadcast media, see Hertzberg et al. v. Finland, Communication No. 61/1979, CCPR/C/OP/1 at 124 (1985), 2 April 1982 [10.2]: ‘While not every individual can be deemed to hold a right to express himself through a medium like TV, whose available time is limited, the situation may be different when a programme has been produced for transmission within the framework of a broadcasting organization with the general approval of the responsible authorities’. 88 GC 34 [41]. 89 Agazade and Jafarov v. Azerbaijan, CCPR/C/118/D/2205/2012, 27 October 2016 [7.3] [7.6]. 90 Zündel v. Canada, CCPR/C/78/D/953/2000, 27 July 2003 [8.5]; Gauthier v. Canada, CCPR/C/ 65/D/633/1995, 5 May 1999 [13.6]. For restrictions on press conferences, see, e.g., Cameroon CCPR/C/CMR/CO/5 (2017) 41.

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general legal obligation imposed on States.91 The Committee’s expectation is that laws and other measures to give effect to Covenant rights in compliance with Article 2(2) will observe the individual terms of limitation, so that rights will not be restricted beyond those terms.92 General Comment 31 also points out the need for observance of those terms of limitation in individual circumstances, so that States must demonstrate the necessity of restrictions and take only such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.93 (General Comment 27 (on Article 12) similarly states that ‘[t]he law itself has to establish the conditions under which the rights may be limited . . . Restrictions which are not provided for in the law or are not in conformity with the requirements of Article 12, paragraph 3, would violate the rights guaranteed by paragraphs 1 and 2.’94) Secondly, on the requirements of the law for the purposes of Article 19, General Comment 34 recalled General Comment 27 to observe that ‘a law must not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution’.95 Thirdly, General Comment 34 called on General Comment 32 (on Article 14) for its stipulations about norms, if they are to qualify as laws for the purpose of the ‘provided by law’ requirement. For a norm to be characterised as a ‘law’ a restriction may not be enshrined in traditional, religious or other customary law.96 When stating in General Comment 34 that to be characterised as a ‘law’ it ‘must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly’, the Committee may have been inspired by European jurisprudence,97 as well as its cited case law.98 It is also consistent with the Committee’s newer lex certa jurisprudence discussed in the chapter on 91 GC 34 [8]. 92 For further discussion, see chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘Achieving Covenant Compliance in Domestic Law, ‘Terms of Limitation’. 93 GC 31 [6]. 94 GC 27 [12]. See Netherlands (Antilles) A/37/40 (1982) 109 (guidelines issued by the prime minister on the freedom of civil servants to express their opinions outside the civil service defined their obligations in broad and general terms (in a Royal Decree concerning the ‘General Rules for the Civil Service’) and it was pointed out that the Covenant required that any restrictions imposed on the freedom of expression should be laid down by law). 95 GC 34 [25], citing GC 27 [13]. 96 GC 34 [24], citing GC 32 [24] (addressing situations where a State recognises courts based on customary law, or religious courts, to carry out or entrust them with judicial tasks). 97 The Sunday Times v. United Kingdom, App. No. 6538/74, ECHR, 26 April 1979 [49]. The ‘prescribed by law’ requirement entails: that the law be adequately accessible, and a norm could not be regarded as a ‘law’ unless it was formulated with sufficient precision to enable the citizen to regulate his conduct he had to be able to reasonably foresee the consequences which a given action could entail. 98 De Groot v. Netherlands, CCPR/C/54/D/578/1994 (1995), 14 July 1995 [3.1], [4.1] (unsuccess ful challenges under Art. 14 to the domestic court’s finding that the charge and the facts on which it was based were sufficiently precise, and Art. 15 that he could not have foreseen that the

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Article 15,99 and reflected in the principle that the laying of charges based on legislation susceptible to wide interpretation is incompatible with Article 14.100 Such legislation is often used to limit unduly freedom of expression, through politically motivated charges against journalists, human rights activists and political opponents,101 including by subjecting opposition politicians to travel bans (Article 12).102 In such situations the proximity of principles under Articles 12 and 19 is logical. In General Comment 34 the Committee added that ‘[l]aws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not’,103 which is a paraphrase of the General Comment 27 injunction that the ‘laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution’.104 Restrictions with a basis only at common law (rather than in legislation) will suffice provided they satisfy those criteria.105 The relevant law must also be transparent. In Toktakunov v. Kyrgyzstan the Committee determined that by-laws governing access to information which were classified as confidential and therefore inaccessible to the public did not constitute ‘law’ for the purposes of Article 19(3).106 The ‘provided by law’ requirement was found wanting in Koktish v. Belarus. It concerned an independent newspaper which applied for accreditation to the National Assembly in order to enable the author, one of its journalists, to report on the work of the House of Representatives. The application was refused by the security service responsible for granting access to the building complex where the National Assembly was located. The refusal was based on two laws, one concerned with the press and other mass media, the other with journalists’ accreditation to the House of Representatives. The first did not contain any grounds for denying accreditation, whereas the second excluded accreditation simply if a journalist was refused access to the building complex. One of the Committee’s objections was that the State did not provide sufficient information on the legal

99 100 101 102 105

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provision on the basis of which he was convicted was applicable to his case by virtue of its imprecision). See chapter on Article 15: Retroactive Criminal Law, section ‘Nulla poena sine lege certa’. See, e.g., Nasheed v. Maldives, CCPR/C/122/D/2270 & 2851/2013, 4 April 2018 [8.3] (failure to comply with the principle of legal certainty and predictability). E.g., Morocco CCPR/C/MAR/CO/6 (2016) 43, 44; Turkmenistan CCPR/C/TKM/CO/2 (2017) 42. E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 30. 103 GC 34 [25]. 104 GC 27 [13]. Gauthier v. Canada, CCPR/C/65/D/633/1995, 5 May 1999 [13.5]: the ‘restriction is, arguably, imposed by law, in that the exclusion of persons from the precinct of Parliament or any part thereof, under the authority of the Speaker, follows from the law of parliamentary privilege’. In Dissanayake v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.2], the Committee appears to have accepted the State’s submission at [4. 7] that ‘restrictions as may be prescribed by law . . . includes contempt of court’. Toktakunov v. Kyrgyzstan, CCPR/C/101/D/1470/2006, 28 March 2011 [7.6].

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grounds for denying access to the building complex, and therefore failed to show that the refusal to grant accreditation was based on the law. (It also failed to show why the restriction was necessary even in principle on one of the Article 19(3) limitation grounds.107) The State’s failure to demonstrate the legal basis for restriction in Yasinovich and Shevchenko v. Belarus similarly resulted in an adverse finding. It was unclear under what legislation the authors’ conduct was actionable for protesting the abolition of social benefits and collecting signatures supporting the recall of those elected representatives who voted for this anti-popular law. The State’s response lacked detail on the scope of the law on which it relied, but in any event it depended on an Electoral Code which addressed conduct distinctly different from that of collecting signatures in this way.108 The Committee has taken a reasonably pragmatic approach to the ‘provided by law’ requirement, and does not always take points against States on this basis when it could, especially when to do so would involve unnecessary evaluation of how domestic law applied. The author in Velichkin v. Belarus was arrested and fined for breach of a law concerning the conduct of assemblies and demonstrations when he distributed copies of the Universal Declaration, to ‘remind the citizens of this date and of their rights’. The domestic courts characterised this as ‘participation in an unauthorised meeting’, attracting the operation of the law invoked, because four other individuals who carried posters also distributed copies of the Universal Declaration. It could be argued that the author was merely ‘imparting information’. The Committee found there was an Article 19 restriction, regardless of its legal qualification, because it amounted to a de facto limitation of the author’s rights.109 In Concluding Observations the Committee pays close regard to observance by States of the strict terms of limitation on freedom of expression to bring about compliance with Article 19(3),110 even if the restrictions are not 107 Koktish v. Belarus, CCPR/C/111/D/1985/2010, 24 July 2014 [8.5] (it is for the State to demonstrate the legal basis for any restrictions; a norm must be formulated with sufficient precision; a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution, but must provide sufficient guidance to those charged with their execution to enable them to ascertain the basis for restricting the rights protected under Art. 19). 108 Yasinovich and Shevchenko v. Belarus, CCPR/C/107/D/1835 & 1837/2008, 20 March 2013 [9.5] [9.6]. This requirement was arguably not met in Zalesskaya v. Belarus, CCPR/C/101/D/ 1604/2007, 28 March 2011 [10.3] [10.4], though the Committee made no finding to that effect. 109 Velichkin v. Belarus, CCPR/C/85/D/1022/2001, 20 October 2005 [7.2]. 110 E.g., Romania CCPR/C/79/Add.111 (1999) 15 (freedom of expression and of the press unduly limited by the Constitution); Monaco CCPR/CO/72/MCO (2001) 19 (‘the protection of indivi dual rights or the safeguarding of general interests’ not consistent with Art. 19(3)); Spain CCPR/C/ESP/CO/5 (2009) 19 (ensure that any restriction (by terrorism law) be necessary, proportional and justified, in accordance with Art. 19(3)); Ethiopia CCPR/C/ETH/CO/1 (2011) 24 (revise legislation to ensure that any limitations are in strict compliance with Art. 19(3)); Angola CCPR/C/AGO/CO/1 (2013) 21 (amend legislation on freedom of press and ensure that

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applied in practice.111 Since its early questioning the Committee has frequently asked about the scope of restrictions and their justification where they appeared to be more restrictive than Article 19(3).112 It has tackled restrictions which are indirect as well as direct,113 it has made a particular focus of criminal defamation,114 of laws which allow restriction on grounds not permitted (such as to avoid undermining the political or religious establishment,115 ‘prejudice to the spirit of national unity’,116 or in the interests of political stability,117 among others).118 The publication of false information has been an offence in some countries, giving rise to objection for failure to meet the requirements of Article 19(3).119 The chilling effect of

111 112 113 114 115 116 117 118

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restrictions fully comply with the strict requirements of Art. 19(3)); Bolivia CCPR/C/BOL/CO/ 3 (2013) 24 (any restriction on the freedom of the press should be in accordance with Art. 19(3)); Chad CCPR/C/TCD/CO/2 (2014) 20 (review legislation to ensure press and media restrictions are in strict compliance with Art. 19(3)); Nepal CCPR/C/NPL/CO/2 (2014) 19 (guarantee, in law and in practice, freedom of expression and compliance with Art. 19(3)); Cambodia CCPR/C/KHM/CO/2 (2015) 21 (review legislation on cybercrimes to avoid the use of vague terminology and overly broad restrictions, in strict requirements of Art. 19(3)); Venezuela CCPR/C/VEN/CO/4 (2015) 19 (any restrictions including in the exercise of mon itoring powers of media content to be in accordance with the strict requirements of Art. 19(3)). E.g., Syria CCPR/CO/71/SYR (2001) 24 (even if limitations such as ‘constructive criticism’ and ‘the integrity of the country and the nation’ have never been applied they should be revised to be compliant). See also Syria CCPR/CO/84/SYR (2005) 13. E.g., Belarus A/33/40 (1978) 536; Iran A/37/40 (1982) 317; Iceland A/38/40 (1983) 114; India A/39/40 (1984) 262. E.g., Viet Nam CCPR/CO/75/VNM (2002) 18; Tanzania CCPR/C/TZA/CO/4 (2009) 24. For further discussion of defamation, see section ‘Respect of the Rights and Reputations of Others’, below. Morocco CCPR/C/79/Add.113 (1999) 23. Egypt A/39/40 (1984) 302. See also questioning of Sweden A/33/40 (1978) 80 (‘security of the Realm’ and of ‘the economic well being of the people’); and section ‘National Security’, below. Viet Nam CCPR/CO/75/VNM (2002) 18. E.g., Libya A/33/40 (1978) 62 (‘the interests of the people’ and ‘the principles of the Revolution’ were thought to be broader than ‘public order’ (ordre public) as envisaged in the Covenant); Colombia A/35/40 (1980) 254 (under the Constitution, freedom of the press was guaranteed except for attacks against personal honour, the social order or the public peace); Romania A/42/40 (1987) 330. See also Israel CCPR/C/ISR/CO/4 (2014) 22 (chilling effect of civil offence of calling for economic, cultural, or academic boycott of people or institutions in Israel for political reasons). E.g., Spain A/34/40 (1979) 200 (reference to ‘truthful information’ in the Constitution); Colombia A/35/40 (1980) 254; Slovakia CCPR/C/79/Add.79 (1997) 22 (offence to ‘dissemi nate false information abroad which harms the interest’ of Slovakia so broadly phrased as to lack any certainty and carries the risk of restricting freedom of expression beyond Art. 19(3) limits); Cameroon CCPR/C/79/Add.116 (1999) 24 (crime of publication of ‘false news’ not compliant with Art. 19(3)); Cameroon CCPR/C/CMR/CO/4 (2010) 25; Sudan CCPR/C/SDN/ CO/4 (2014) 21; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 49 (dissemination of information known to be false). See also responses by States: Canada A/46/40 (1991) 80 (the dissemination of ‘false news’ was an offence under Canadian law although it was a difficult offence to prove, and did not apply if it occurred in the belief that it was true); Uruguay CCPR A/48/40 (1993) 485 (offence of deliberate dissemination of inaccurate information which seriously disrupted public order or severely damaged the economic interests of the State or harmed its credit abroad).

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restrictions is always of concern, for example, in prosecutions for ‘spreading false rumours’ even though charges are dismissed,120 the chilling effect on journalists of measures which create a situation of uncertainty or intimidation,121 as well as the similar effect of legislation in which key terms are vague, broad and open-ended.122

Covenant Compatibility of Laws On the requirement for Covenant compatibility of restrictions, the comparatively early General Comment 22 on Article 18 only ventured so far as to say that ‘[r]estrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner’,123 even though the Siracusa Principles had long before that recommended that ‘[a]ll limitations on a right recognized by the Covenant shall be provided for by law and be compatible with the objects and purposes of the Covenant’.124 In his Individual Opinion in Toonen v. Australia shortly afterwards Bertil Wennergren criticised the discriminatory criminal legislation at issue for being ‘incompatible with the Covenant’.125 General Comment 34 cited Toonen as authority for its summary statement that ‘[l]aws restricting the rights enumerated in Article 19, paragraph 2 . . . must not only comply with the strict requirements of Article 19, paragraph 3 of the Covenant but must also themselves be compatible with the provisions, aims and objectives of the Covenant’.126 (With indirect relevance, but also to stress Covenant compatibility, General Comment 34 also cited General Comment 20 (on Article 7) to observe that laws must not provide for penalties incompatible with the Covenant, such as

120 Slovakia CCPR/CO/78/SVK (2003) 15. 121 Kankanamge v. Sri Lanka, CCPR/C/81/D/909/2000, 27 July 2004 [9.4] (indictments against a journalist for criminal defamation of high officials were pending for six years and left him in a situation of uncertainty and intimidation, and thus had a chilling effect which unduly restricted his freedom of expression). 122 Cambodia CCPR/C/KHM/CO/2 (2015) 21; Russian Federation CCPR/C/RUS/CO/7) (2015) 19 (recommendation to clarify the vague, broad and open ended definition of key terms and ensure that the laws are not used as tools to curtail freedom of expression beyond the narrow restrictions permitted in Art. 19); Rwanda CCPR/C/RWA/CO/4 (2016) 39 (vague definition of crimes, such as separatism, and the chilling effect they may have, e.g., on opposition politicians, journalists and human rights defenders). See also discussion above on lex certa, and below under section ‘National Security’. 123 General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4 (GC 22) [8]. 124 Principle I.A.5., The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4. For further discussion of the Siracusa Principles, see chapter on Article 4: Derogation in Times of Officially Proclaimed Public Emergency Threatening the Life of the Nation. 125 Toonen v. Australia, CCPR/C/50/D/488/1992, 31 March 1994, Individual Opinion by Bertil Wennergren. The main focus of the Committee was arbitrariness under Art. 17. 126 GC 34 [26] (footnotes omitted).

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corporal punishment.127) The Covenant compatibility of restrictive measures, in order to be justifiable, increasingly forms part of the Committee’s narrative, including for Article 19(3), even though not explicit in its text in the way that Article 12(3) requires restrictions to be ‘consistent with the other rights recognized in the present Covenant’.128 Fedotova v. Russian Federation shows how the Committee approached legislation which on its face bore the hallmarks of unjustified discrimination in restricting freedom of expression. The author was convicted for displaying posters near a secondary school declaring ‘homosexuality is normal’ and ‘I am proud of my homosexuality’, under an administrative offence proscribing ‘propaganda of homosexuality (sexual act between men or lesbianism) among minors’. The Committee did not need to consider whether the restriction was ‘provided by law’ because irrespective of the domestic lawfulness of the restriction, and following the requirement by then stated in General Comment 34, laws restricting Article 19(2) rights must themselves be compatible with the provisions, aims and objectives of the Covenant, including the Covenant’s non-discrimination provisions (in addition to complying with the strict requirements of Article 19(3)). In examining Covenant compatibility the Committee applied the usual test under Articles 2 and 26: differentiation would not amount to discrimination if it was based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant. It was decisive that the State failed to show that a restriction on the right to freedom of expression in relation to ‘propaganda of homosexuality’ – as opposed to propaganda of heterosexuality or sexuality generally – among minors was based on reasonable and objective criteria. Her rights under Article 19(2) read in conjunction with Article 26, were violated by her conviction on the basis of the ambiguous and discriminatory law.129 In examining OP1 petitions it is not the function of the Committee to be concerned with legislation in abstracto.130 However, this does not alter the fundamental obligation on States under Article 2(2) to achieve Covenant compliance by necessary ‘laws and other measures’.

127 GC 34 [26], citing General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992 [5]. 128 For parallels between the Art. 12(3) condition of Covenant consistency and the Committee’s approach to arbitrariness under Arts 6 and 9, see chapter on Article 12: Freedom of Movement of the Person, section ‘Consistency with the Covenant’. 129 Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012 [10.4] [10.6]. See also Nepomnyashchiy v. Russian Federation, CCPR/C/123/D/2318/2013, 17 July 2018 [7.6] [7.8]. 130 Of many such cases, see, e.g., Robert Faurisson v. France, CCPR/C/58/D/550/1993(1996), 8 November 1996 [9.3].

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Necessity and Proportionality On the question of ‘necessity’ General Comment 34 relied on General Comment 22 for the principle that ‘restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated’.131 (The statement preceding this in General Comment 22 also applies to Article 19, namely, that ‘paragraph 3 of Article 18 is to be strictly interpreted’.) On the need for ‘proportionality’ General Comment 34 preferred the much more expansive and more recent statement in General Comment 27: ‘restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected . . . The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law’.132 The principle of least possible restriction is also reflected in the Committee’s observation in General Comment 34 that a State ‘may never include a ban on a particular publication unless specific content, that is not severable, can be legitimately prohibited under paragraph 3’.133 Similarly, restrictions on internet-based publishing should generally be content-specific since generic bans on the operation of certain sites and systems are not compatible with Article 19(3).134 For the overarching principle that the relationship between right and restriction and between norm and exception must not be reversed, the Committee in General Comment 34 relied on General Comment 27.135 It also recalled the substance of Article 5 (as did General Comments 22 and 27) that restrictions on the exercise of freedom of expression may not put in jeopardy the right itself.136 A neat synopsis of the principle of necessity was provided by Elizabeth Evatt and David Kretzmer in their Concurring Opinion in Faurisson v. France: The power given to States parties under article 19, paragraph 3, to place restrictions on freedom of expression, must not be interpreted as license to

131 GC 34 [22], citing GC 22 [8]. 132 GC 34 [34], quoting from GC 27 [14] [15]. See also Schumilin v. Belarus, CCPR/C/105/D/ 1784/2008, 23 July 2012 [9.4]: ‘even if a State party may introduce a system aiming to strike a balance between an individual’s freedom to impart information and the general interest in maintaining public order in a certain area, such a system must not operate in a way that is incompatible with Article 19 of the Covenant’; Olechkevitch v. Belarus, CCPR/C/107/D/1785/ 2008, 18 March 2013 [8.5]; Komarovsky v. Belarus, CCPR/C/109/D/1839/2008, 25 October 2013 [9.4]. 133 GC 34 [39]. 134 GC 34 [43]. 135 GC 34 [21], citing GC 27 [13]. 136 GC 34 [21], GC 27 [13], GC 22 [8].

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prohibit unpopular speech, or speech which some sections of the population find offensive. Much offensive speech may be regarded as speech that impinges on one of the values mentioned in article 19, paragraph 3(a) or (b) (the rights or reputations of others, national security, ordre public, public health or morals). The Covenant therefore stipulates that the purpose of protecting one of those values is not, of itself, sufficient reason to restrict expression. The restriction must be necessary to protect the given value. This requirement of necessity implies an element of proportionality. The scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect. It must not exceed that needed to protect that value. As the Committee stated in its General Comment 10, the restriction must not put the very right itself in jeopardy.137

They commented that while there was every reason to maintain protection of bona fide historical research against restriction, even when it challenges accepted historical truths and by so doing offends people, anti-Semitic allegations of the sort made by the author, which violate the rights of others, do not have the same claim to protection against restriction.138 The restrictions were intimately linked to the value they were meant to protect – the right to be free from incitement to racism or anti-Semitism; protecting that value could not have been achieved in the circumstances by less drastic means. They therefore concluded that the restrictions on the author’s freedom of expression met the proportionality test and were necessary in order to protect the rights of others.139 The Committee commonly finds a violation of Article 19 where the State relies predominantly on the lawfulness of restrictions without any meaningful engagement on the issue of necessity, as it did in Katsora v. Belarus. Sanctions were imposed on the author for distributing leaflets under laws which prohibited activities on behalf of unregistered political parties and other associations. He was a member of the National Committee of a registered political party and, together with the other political parties, formed an electoral block known as ‘V-Plus’ and distributed leaflets describing a consolidated programme of action of these parties in addressing key issues in Belarus. The State did not advance any argument as to why the sanctions were necessary,140 in keeping with a similar approach by

137 Individual Opinion by Elizabeth Evatt and David Kretzmer in Faurisson v. France, co signed by Eckart Klein (concurring) CCPR/C/58/D/550/1993(1996), 8 November 1996 [8]. 138 Faurisson v. France, CCPR/C/58/D/550/1993(1996), 8 November 1996 [9.5]: ‘I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers . . . I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication’. 139 Individual Opinion by Elizabeth Evatt and David Kretzmer in Faurisson v. France, co signed by Eckart Klein (concurring) CCPR/C/58/D/550/1993(1996), 8 November 1996 [10]. 140 Katsora v. Belarus, CCPR/C/99/D/1377/2005, 19 July 2010 [7.5].

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Belarus in numerous other Article 19 cases.141 In some cases it is even unclear which limitation ground is relied on.142

Onus of Proof The burden of proving the legal basis for restrictions rests with the State relying on them.143 This extends also to establishing the nexus between a restriction and the asserted ground of limitation. As General Comment 34 puts it, the State must ‘demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat’.144

Strict Test of Justification for Restrictions The right to freedom of expression is of paramount importance in any society, and restrictions on its exercise must meet a strict standard of justification.145 Certain intrusions will never satisfy the test of necessity for the purposes of Article 19(3). It is never necessary to restrict freedom of expression by punishing those critical 141 E.g., Poliakov v. Belarus, CCPR/C/111/D/2103/2011, 17 July 2014 [10.4]; Aleksandrov v. Belarus, CCPR/C/111/D/1933/2010, 24 July 2014 [7.4]; Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [9.6]; Evrezov et al. v. Belarus, CCPR/C/112/D/ 1999/2010, 10 October 2014 [8.8]; Nepomnyaschikh v. Belarus, CCPR/C/112/D/2156/2012, 10 October 2014 [9.4]; Lozenko v. Belarus, CCPR/C/112/D/1929/2010, 24 October 2014 [7.7]; Symonik v. Belarus, CCPR/C/112/D/1952/2010, 24 October 2014 [7.5]; Stambrovsky v. Belarus, CCPR/C/112/D/1987/2010, 24 October 2014 [7.6]; Korol v. Belarus, CCPR/C/ 117/D/2089/2011, 14 July 2016 [7.4]; Misnikov v. Belarus, CCPR/C/117/D/2093/2011, 14 July 2016 [9.3]; Melnikov v. Belarus, CCPR/C/120/D/2147/2012, 14 July 2017 [8.4]; Shumilina et al. v. Belarus, CCPR/C/120/D/2142/2012, 28 July 2017 [6.5]; Koreshkov v. Belarus, CCPR/C/121/D/2168/2012, 9 November 2017 [8.4]; Levinov v. Belarus, CCPR/C/ 123/D/2239/2013, 19 July 2018 [6.4]; Severinets v. Belarus, CCPR/C/123/D/2230/2012, 19 July 2018 [8.8] [8.10] (administrative liability for walking with other individuals to a venue of the prayer (i.e., street procession) and clapping hands (i.e., expression of opinion)). For equivalent lack of explanation by other States, see Sviridov v. Kazakhstan, CCPR/C/120/D/ 2158/2012, 13 July 2017 [10.4] (note the observation that the act of a single individual peace fully conveying a message should not be subject to the same restrictions as those applying to an assembly); Kim v. Uzbekistan, CCPR/C/122/D/2175/2012, 4 April 2018 [13.8]. Cf. the minimal explanation provided by the State in Evzrezov v. Belarus, CCPR/C/117/D/2101/2011, 14 July 2016 [8.5] (a sporting event was already scheduled to take place at the same location, on the same date, and the purpose of the picket was to protest the ‘political persecution’ of former candidates for the presidency when that term was not in the Criminal Code). 142 Youbko v. Belarus, CCPR/C/110/D/1903/2009, 17 March 2014 [9.6] [9.8]. 143 GC 34 [27]. See also Korneenko et al. v. Belarus, CCPR/C/88/D/1274/2004, 31 October 2006 [7.5] [7.6]. Androsenko v. Belarus, CCPR/C/116/D/2092/2011, 30 March 2016 [7.3] and Poplavny and Sudalenko v. Belarus, CCPR/C/122/D/2190/2012 [8.3]: it is for the State Party to demonstrate that the restrictions on the author’s rights under Art. 19 were necessary and proportionate. 144 GC 34 [35]. See also Kim v. Korea, CCPR/C/64/D/574/1994, 4 January 1999 [12.4]. 145 Park v. Korea, CCPR/C/64/D/628/1995, 3 November 1998 [10.3]; Mavlonov and Sa’di v. Uzbekistan, CCPR/C/95/D/1334/2004, 19 March 2009 [8.3].

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of the government.146 The value placed on uninhibited expression is especially high in circumstances of public debate concerning figures in the political domain.147 In one instance the Committee explained that the legitimate objective of safeguarding and strengthening national unity under difficult political circumstances may not be achieved by muzzling advocacy of a multi-party democracy, democratic tenets and human rights.148 It is particularly difficult to justify restrictions to protect the reputation of public figures who, as such, are subject to criticism and opposition.149 It is hard to find any justification for Article 19 restrictions imposed on someone solely for exercising their Covenant rights, such as by joining a political party,150 or for regime-critical publications.151 Under no circumstances can an attack on a person, because of the exercise of their freedom of opinion or expression, take such forms as arbitrary arrest, torture, threats to life and killing.152 It would seem that those particularly prone to attack are professors,153 human rights defenders154 and journalists,155 but have on occasion included those who contributed to the work of the Committee.156 Restrictions with regard to sedition, treason and other offences against the State routinely attract the Committee’s attention.157 The principle of proportionality must take account not only of the form of expression but also the means of its dissemination, for example, with a high expectation for uninhibited expression during public debate concerning public 146 GC 34 [42]. 147 Bodrožić v. Serbia and Montenegro, CCPR/C/85/D/1180/2003, 31 October 2005 [7.2]. See also Tulzhenkova v. Belarus, CCPR/C/103/D/1838/2008, 26 October 2011 [9.3] (the State Party has not supplied any specific indication of what dangers would have been created by the distribution of a leaflet advertising an event before permission to hold it had been granted). 148 Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.7] (the question of deciding which measures might meet the ‘necessity’ test in such situations did not arise). 149 Marques de Morais v. Angola, CCPR/C/83/D/1128/2002, 29 March 2005 [6.8]. 150 Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990, 8 July 1994 [6.8]; Bwalya v. Zambia, CCPR/C/48/D/314/1988, 14 July 1993 [6.3]. 151 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [4.8] (inadmissible only due to failure to substantiate that a restriction was a direct consequence of the author’s publication). 152 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018 [10.7]. 153 E.g., El Salvador A/39/40 (1984) 79. 154 E.g., Syria CCPR/CO/84/SYR (2005) 12; Congo CCPR/C/COD/CO/3 (2006) 23; Togo CCPR/ C/TGO/CO/4 (2011) 20; Malawi CCPR/C/MWI/CO/1 (2011) 16. 155 Ribeiro v. Mexico, CCPR/C/123/D/2767/2016, 17 July 2018. 156 Venezuela CCPR/C/VEN/CO/4 (2015) 18. See also GA Resolution 68/268, of 9 April 2014 [8], in which the Assembly ‘strongly condemns all acts of intimidation and reprisals against individuals and groups for their contribution to the work of the human rights treaty bodies, and urges States to take all appropriate action . . . to prevent and eliminate such human rights violations’. 157 E.g., Cyprus CCPR/C/79/Add.39 (1994) 11 (the Committee noted that freedom to criticise the authorities and challenge government policies are a normal and essential part of a functioning democracy). See also questioning at Finland A/34/40 (1978) 413; France A/38/40 (1983) 309; Finland A/41/40 (1985) 215 (defamation of a foreign State); Guyana A/37/40 (1982) 261; UK (Belize) A/34/40 (1979) 320.

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or political figures,158 and during election campaigns.159 It is expected that citizens must be allowed to inform themselves about alternatives to the political parties in power.160 In spite of the vital importance of freedom of expression to democratic processes, the Committee found there was no violation in Jong-Cheol v. Korea when a journalist was convicted for publishing an article on the results of an opinion poll in breach of a statutory moratorium (he published within the last seven days before the election). The relevant law restricted publication of opinion polls for twentythree days in advance of an election, to provide the electorate with a period of reflection, during which they were insulated from considerations extraneous to the issues contested in the elections. The Committee took on board ‘recent historical specificities of the democratic political processes of the State party’ (an election culture prone to biased or manipulated public opinion polls, influencing voters with incorrect information). With uncharacteristic acquiescence the Committee commented that ‘a law restricting the publication of opinion polls for a limited period in advance of an election did not seem, ipso facto, to fall outside the aims contemplated in Article 19, paragraph 3’, even though it acknowledged that twenty-three days was unusually long (it need not have pronounced itself on the compatibility per se of the cut-off date given the breach occurred in the last seven days). On proportionality it considered the author’s criminal sanction (a fine of 1,000,000 won) was not excessive, given those conditions prevailing in South Korea. It could not be categorised as excessively harsh and therefore disproportionate.161 Grounds of Limitation General Comment 34 restated the principle from General Comment 22 that ‘[r]estrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.’162 The pertinency of restrictions to permissible grounds is a constant theme of the Committee.

Special Duties and Responsibilities A distinctive feature of Article 19(3) (shared with Article 10(2) of the European Convention) is that its prefatory wording acknowledges that exercising freedom of expression carries with it special duties and responsibilities. It stems from 158 160 161 162

GC 34 [34]. 159 See, e.g., GC 25 [25]. Aduayom et al. v. Togo, CCPR/C/51/D/422/1990, 423/1990 and 424/1990, 12 July 1996 [7.4]. Jong Cheol v. Korea, CCPR/C/84/D/968/2001, 27 July 2005 [6.2], [8.3]. GC 34 [22], citing GC 22 [8].

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British and US proposals at an early stage in the Commission on Human Rights.163 Those in support argued that freedom of expression was a precious heritage as well as a dangerous instrument and that, in view of the powerful influence the modern media of expression exerted upon the mind and upon national and international affairs, the ‘duties and responsibilities’ in the exercise of the right to freedom of expression should be especially emphasised.164 The word ‘special’ was added later.165 Nowak notes that these responsibilities impose upon opinion-makers an obligation not to abuse their power at the expense of others. For similar reasons responsibilities are imposed on the State, including, as Nowak suggests, to avoid concentration of media ownership, which was once seen as one the clearest means of wielding opinion-shaping power.166 The Committee has often questioned States about ownership of media and its impact on freedom of expression.167 It is concerned if freedom of expression may be unduly restricted by reason of government monopoly of broadcast media,168 or by authorisation requirements,169 and more generally if broadcasters do not enjoy broad discretion as to programming content to allow competing views, including those of political parties opposed to government policy.170 It has emphasised the importance of measures to secure impartial allocation of resources, as well as equitable access to such media,171 it has been keen to ensure the media is independent of political pressure,172 and that regulatory authorities are independent.173 Censorship has long been a subject of regular questioning.174 Social media similarly enables users to harness power to reach global audiences. Karl Partsch speaks of a general duty to present information and news 163 See A/2929, Ch.VI (1955), p. 51 [127]; E/CN.4.SR.160 [29] (GB); E/CN.4.SR.162 [31] (GB); E/CN.4.SR.165 [76] (USA). 164 E/CN.4.SR.163 [4] (AUS); E/CN.4.SR.165 [77] and [89] (GB), [90] (Egypt) and [98] (India); E/CN.4.SR. 320, pp. 5 and 8 (GB). 165 E/CN.4.SR.165 [86] (AUS), [96] (Lebanon) and [99] [102] (GB). 166 Nowak, CCPR Commentary, p. 459. 167 E.g., Norway A/33/40 (1978) 241; Sweden A/41/40 (1986) 150; France A/43/40 (1988) 397; Mexico A/44/40 (1989) 126. 168 E.g., Guyana CCPR/C/79/Add.121 (2000) 19; Togo CCPR/CO/76/TGO (2002) 17 (reports that opposition political parties lack practical access to public audio visual and sound media and that the members of such parties are the target of continuous public slander campaigns in the media). 169 E.g., Belgium CCPR/C/79/Add.99 (1998) 24 (the requirement of prior authorisation for foreign channels on cable networks was not in conformity with Art. 19). 170 E.g., Republic of Moldova CCPR/CO/75/MDA (2002) 14. 171 E.g., Italy CCPR/C/79/Add.37 (1994) 10, 17. See also Sri Lanka CCPR/CO/79/LKA (2003) 17. 172 E.g., Peru A/38/40 (1983) 270; Belarus CCPR/C/79/Add.86 (1997) 17; Italy CCPR/C/ITA/CO/ 5 (2006) 20. 173 E.g., Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 18; Benin CCPR/C/BEN/CO/2 (2015) 32. See also section ‘An Independent and Diverse Media’, above. 174 E.g., Poland A/42/40 (1987) 103; Tunisia CCPR/C/79/Add.43 (1994) 11; Azerbaijan CCPR/C/ AZE/CO/4 (2016) 32; Hungary CCPR/C/HUN/CO/6 (2018) 57; Lebanon CCPR/C/LBN/CO/3 (2018) 45.

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truthfully, accurately and impartially,175 which today has special meaning in the context of the proliferation of ‘fake news’, and the power of first impression which may not adequately be addressed by a correctional apology after a news story has faded. The ‘special duties and responsibilities’ on those exercising the freedom of expression do nothing to relax the disciplines already discussed, which govern the question whether any restriction on the freedom is justified.

Respect of the Rights and Reputations of Others The limitation ground ‘respect of the rights . . . of others’ refers both to Covenant rights and those more generally recognised in human rights law.176 By mentioning also the ‘reputations’ of others Article 19(3) acknowledges that freedom of expression, when exercised, may affect not only the rights of others (e.g., where a journalist exercising the right to access information transgresses the privacy of others), but also their reputations. (Article 17 provides protection both for privacy and against unlawful attacks on honour and reputation.) Defamation law aims to protect the reputations of others and is a frequent source of limitation addressing both the responsibilities of those exercising the freedom and consequential reputational harm. Yet no matter what the ground of limitation the fundamental question remains one of the necessity for every restriction, which is for the State to prove. The Committee attracted particular criticism from two dissenting members in Kozlov v. Belarus (Messrs Dheerujlall Seetulsingh and Walter Kälin), who supported finding a violation but thought the majority had not made the necessity point sufficiently clearly. The author was a retired court expert on issues of transportation who was ordered to pay an administrative fine for slander when the domestic court ruled that the content of his letter to the Minister for Finance was derogatory and humiliating. In his letter he alleged irresponsible management of a State-owned insurance company at the expense of traffic accident victims. He referred to one particular official as ‘empty-headed’, ‘not business-oriented’, and ‘at a general level of an eighth-grade student with the knowledge of an insurance agent’. The Committee based its finding of violation in the State’s failure to demonstrate that the imposition of a fine was proportionate to protect the honour and the reputation of others. It had taken account of the form and context of the expression, as well as its means of dissemination (correspondence), and it noted the public interest in the State ownership of the company concerned. It seemed to be important to the Committee that the author expressed criticism of several others in addition to the official, and that the company was the main issue in his critique. The Committee also observed the minimal impact 175 Karl Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, in Louis Henkin (ed.), The International Bill of Rights (Columbia University Press, 1981), p. 209, at p. 219. 176 GC 34 [28].

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of the criticisms in that they were not publicised. The Committee’s analysis even went as far as justifying the author’s choice of wording to express his criticism. To those two dissenting Committee members, it should have been sufficient for the Committee to make its finding of violation without any extenuating commentary, given the State’s failure to advance any argument why the fine was necessary. The Committee even acknowledged in its merits preamble that the State ‘must demonstrate in specific and individualized fashion why the specific action taken was necessary and proportionate’.177 Defamation laws must not have the practical effect of stifling freedom of expression.178 They should include defences based on public interest and truth; they should not be applied to those forms of expressions that are not by nature subject to verification; and at least with regard to comments about public figures, consideration should be given to avoiding penalising or otherwise rendering unlawful untrue statements that have been published in error but without malice. The Committee has recommended decriminalising defamation or applying the criminal law only in the most serious cases and even then without imprisonment.179 These requirements exemplify the need for full consideration to be given to issues such as the importance of freedom of expression, its purpose, the circumstances in which the restriction occurs, and the rights affected by it. A further important consideration in the context of defamation is that Article 17 imposes a positive duty on States ‘to provide statutory

177 Kozlov v. Belarus, CCPR/C/111/D/1986/2010, 24 July 2014 [7.4] [7.6], and Joint Opinion of Committee members Dheerujlall Seetulsingh and Walter Kälin (dissenting). 178 On the misuse of civil defamation provisions, see, e.g., Moldova CCPR/C/MDA/CO/3 (2016) 31 (concern at the use of civil defamation laws against independent journalists); Mongolia CCPR/C/MNG/CO/6 (2017) 37 (increasing use of civil law defamation clauses, which has a chilling effect). On the criminalisation of reputation related speech, see Kazakhstan CCPR/C/ KAZ/CO/2 (2016) 49 (incitement to ‘social, national, clan, class or religious discord’, defama tion, insult, public insult or other encroachment on the honour and dignity of the president, public insult of a State official); Madagascar CCPR/C/MDG/CO/4 (2017) 49 (insult or defama tion against State officials); Algeria CCPR/C/DZA/CO/4 (2018) 43 (defamation or insults against civil servants or State institutions); Belarus CCPR/C/BLR/CO/5 (2018) 49 (laws prohibiting information harming the ‘honour and dignity’ of high ranking officials, with criminal responsibility for defaming the president, or the Republic); Guinea CCPR/C/GIN/ CO/3 (2018) 43 (defamation against public authorities, constituent bodies, army and courts); Lebanon CCPR/C/LBN/CO/3 (2018) 45 (insult, criticism of public officials and blasphemy). On restriction on the sale of material that ‘distorts historical facts’, see Lithuania CCPR/C/LTU/ CO/4 (2018) 27. 179 GC 34 [47]. For an example of violation through criminal conviction for defamation, see Adonis v. Philippines, CCPR/C/103/D/1815/2008/Rev.1, 26 October 2011. On the criminalisation of defamation, see, e.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 36; Kuwait CCPR/C/KWT/CO/3 (2016) 40; Poland CCPR/C/POL/CO/7 (2016) 37, 38; Honduras CCPR/C/HND/CO/2 (2017) 40, 41; Italy CCPR/C/ITA/CO/6 (2017) 38, 39; Pakistan CCPR/C/PAK/CO/1 (2017) 37; Thailand CCPR/C/THA/CO/2 (2017) 35, 36; Bahrain CCPR/C/BHR/CO/1 (2018) 54; Bulgaria CCPR/C/BGR/CO/4 (2018) 37; Lao CCPR/C/LAO/CO/1 (2018) 33, 34(c); Liberia CCPR/C/LBR/CO/1 (2018) 41.

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protection against intentional infringement on honour and reputation by untrue assertions’.180 In Concluding Observations the Committee has expressed concern about the use of defamation laws to restrict coverage on matters of public interest,181 to silence journalists,182 human rights defenders,183 and more generally to sanction those critical of the government or public officials,184 or to protect national emblems.185 The Committee’s typical response to such laws has been to remind States that the law should set out clearly and precisely applicable restrictions on the freedom expression and ensure that they do not exceed the permissible limits of Article 19(3).186 Articles 5 and 20 are relevant to the special duties and responsibilities of those exercising the freedom of expression, but their sphere of operation is confined to extreme circumstances. Article 20 played a part in the Committee’s decision in Ross v. Canada when determining whether restrictions placed on a school teacher for expressing off-duty anti-Semitic statements were applied for purposes recognised by the Covenant. The communication was not declared inadmissible for incompatibility with the provisions of the Covenant, by virtue of the statements falling within Article 20 (as the State urged it should be, following J.R.T. and W.G. v. Canada).187 The Committee reasoned that ‘restrictions on expression which may fall within the scope of article 20 must also be permissible under article 19, paragraph 3, which lays down requirements for determining whether restrictions on expression are permissible. In applying those provisions, the fact that a restriction is claimed to be required under article 20 is of course relevant.’ In other words, it did not wish to make a finding under Article 20 at admissibility stage (and it did not do so even in its merits decision).188 In Ross the Committee recalled (from Faurisson v. France) that restrictions may be permitted on statements which are of a nature as to raise or strengthen antiSemitic feeling, in order to uphold the Jewish community’s right to be protected 180 Nowak, CCPR Commentary, p. 462. 181 E.g., Russian Federation CCPR/C/RUS/CO/6 (2009) 24; Czech Republic CCPR/C/CZE/CO/3 (2013) 21. See also Ecuador CCPR/C/ECU/CO/6 (2016) 29. 182 E.g., Congo CCPR/C/COD/CO/3 (2006) 22; Paraguay CCPR/C/PRY/CO/2 (2006) 19; Moldova CCPR/C/MDA/CO/2 (2009) 26. 183 E.g., Turkey CCPR/C/TUR/CO/1 (2012) 24. 184 E.g., Iran A/33/40 (1978) 310; Bolivia A/44/40 (1989) 424; Iraq CCPR/C/79/Add.84 (1997) 16; Dominican Republic CCPR/CO/71/DOM (2001) 22; Guatemala CCPR/CO/72/GTM (2001) 28; Kuwait CCPR/C/KWT/CO/2 (2011) 25; Indonesia CCPR/C/IDN/CO/1 (2013) 27; Kazakhstan CCPR/C/KAZ/CO/1 (2011) 25; Croatia CCPR/C/HRV/CO/3 (2015) 23; Korea CCPR/C/KOR/CO/4 (2015) 46 47; San Marino CCPR/C/SMR/CO/3 (2015) 18. 185 E.g., Italy A/36/40 (1981) 125; Austria A/38/40 (1983) 195. 186 E.g., Croatia CCPR/CO/71/HRV (2001) 17. See also Azerbaijan CCPR/CO/73/AZE (2001) 22; Azerbaijan CCPR/C/AZE/CO/3 (2009) 15. 187 J.R.T. and W.G. Party v. Canada, Communication No. 104/1981, CCPR/C/OP/2 at 25 (1984), 6 April 1983 [8]. 188 Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000 [10.6].

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from religious hatred,189 and it added that such restrictions derive support from the principles reflected in Article 20(2). The author’s statements were of a particular nature and effect that the purpose of removing him from his teaching position was to protect the ‘rights or reputations’ of persons of Jewish faith, including their right to have an education in the public school system free from bias, prejudice and intolerance. The statements were discriminatory against persons of the Jewish faith and ancestry, they denigrated the faith and beliefs of Jews, and they went beyond a call to question the validity of Jewish beliefs and teachings with an appeal to hold those of the Jewish faith and ancestry in contempt. Reference was made to Article 20 in order to justify the purposes of the restriction. The ‘special duties and responsibilities’ on the author were particularly relevant to the school system in the light of the influence of school teachers on young students, to ensure that legitimacy should not be given by the school system to the expression of discriminatory views. Given the context that enabled the domestic court to consider it reasonable to anticipate a causal link between the expressions of the author and the ‘poisoned school environment’ experienced by Jewish children in the district, the Committee decided that removing the author from a teaching position (while still retaining him) was necessary.190 As Faurisson and Ross demonstrate, ‘others’ may be individuals or a community as a whole.191 The Committee is critical of measures which are overprotective of the rights of others, still more so where they do not serve their ostensible purpose. In Svetik v. Belarus there was a violation of Article 19 in penalties imposed for encouraging voters to boycott a forthcoming parliamentary election. The Committee distinguished between, on the one hand, intimidation and coercion (which Covenant parties should prohibit by penal laws, and enforce, in order to protect the right of every citizen to vote, under Article 25(b)) from, on the other hand, the conduct of the author, which was merely to encourage voters to boycott the election, by an open letter published in a newspaper. It did not affect the freedom of voters to choose whether or not to participate in the election. He was a high school teacher and a representative of an NGO whose open letter criticised the policy of the authorities. It was signed by hundreds making an appeal not to take part in local elections as a protest against the electoral law which they believed was incompatible with international norms. His being fined for doing so did not even legitimately serve an Article 19(3) purpose.192 In similar circumstances, the authors in 189 Faurisson v. France, CCPR/C/58/D/550/1993, 8 November 1996 [9.6]. 190 Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000 [10.6], [11.5] [11.6]. 191 Faurisson v. France, CCPR/C/58/D/550/1993, 8 November 1996 [9.6]; Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000 [11.5]. 192 Svetik v. Belarus, CCPR/C/81/D/927/2000, 8 July 2004 [7.2] [7.3]. The Committee appears to have put some store by the fact that voting was not compulsory, which sparked a strongly worded individual opinion by Sir Nigel Rodley for suggesting that a system of compulsory

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Shchetko v. Belarus were fined for distributing ‘literature’ (a registered newspaper) calling for the boycott of forthcoming elections. The fact that the law in question was amended shortly after the domestic court’s decision against the author tended to underline the lack of reasonable justification for the restrictions which the law authorised. The Committee (more broadly than in Svetik) found that the fine was not justified under any of the criteria set out in Article 19(3).193 Ballantyne, Davidson and McIntyre v. Canada provides a good summary of the principles to be applied under the ‘respect of the rights of others’ limitation ground. The Committee found a violation of Article 19(2) in laws forbidding the use of English for commercial advertising in Québec. The right that the State sought to protect by this was the right of the Francophone minority there to use their own language. This was not jeopardised by advertising in another language, and it was therefore not necessary, in order to protect the vulnerable position of the Francophone group, to prohibit commercial advertising in English. Emphasising the requirement of least restriction, the Committee also noted that this protection could be achieved in other ways that did not preclude freedom of expression in a language of choice of those engaged in such fields as trade. For example, the law could have required advertising to be in both French and English.194

National Security General Comment 34 cautions that ‘extreme care’ should be taken against the misuse of national security as a ground of limitation, such as in sedition laws and measures which protect official secrets, or those which result in the prosecution of journalists, researchers, environmental activists, human rights defenders or others for disseminating information of legitimate public interest.195 It has been critical of the misuse of national security grounds as a basis of limitation;196 it has

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voting would of itself justify the enforcement of a law that would make advocacy of electoral boycott an offence. Shchetko v. Belarus, CCPR/C/87/D/1009/2001, 11 July 2006 [7.4] [7.5]. Ballantyne et al. v. Canada, CCPR/C/47/D/359/1989 and 385/1989/Rev.1, 18 October 1990 [11.4]. See also J.G.A. Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000, Individual Opinion of Elizabeth Evatt, Eckart Klein, David Kretzmer and Cecilia Medina Quiroga (concurring) who considered that the instruction given by the State to civil servants not to respond to correspondence in the Afrikaans language restricted the freedom of the authors (who were members of a community descended from indigenous Khoi and Afrikaans settlers) to receive and impart information in that language under Art. 19(2) (in addition to the majority finding under Art. 26). GC 34 [30]. For recent comments on sedition laws, see, e.g., Thailand CCPR/C/THA/CO/2 (2017) 35; Gambia CCPR/C/GMB/CO/2 (2018) 39. E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 49 (blocking of social media, blogs, news sites and other internet based resources on national security grounds); Kuwait CCPR/C/KWT/CO/3 (2016) 40 (restrictive, vague and broadly worded provisions to prosecute activists, journalists, bloggers and others for expressing views which threaten the national security of Kuwait or its relations with other States); Kuwait CCPR/C/KWT/CO/3 (2016) 48 (revocation of citizenship of government critics for ‘threatening the higher interests of the State or its security’); Morocco

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condemned counter-terrorism measures which are incompatible with Article 19(3) by creating offences which are defined vaguely,197 or which result in disproportionate interference with freedom of expression,198 including where they prevent non-violent discussion.199 A series of petitions against Korea set the pattern for other findings of violation in the State’s failure ‘to specify the precise nature of the threat’ posed. In Sohn v. Korea the author was charged with contravening a prohibition against intervening in a labour dispute for the purpose of manipulating or influencing the parties to the dispute when not sufficiently concerned in it, and he was sentenced to one and a half years’ imprisonment. He had merely joined with sixty other members of a forum of unions in issuing a statement supporting a strike at a shipyard, and condemning the government’s threat to send in troops to break the strike. As the Committee observed, the State invoked national security and public order by reference to the general nature of the labour movement and by alleging that the public statement was a disguise for inciting a national strike. Its finding of violation turned on the State’s failure to specify the precise nature of the threat that the author’s conduct posed and because none of the arguments sufficed to render the restriction compatible with Article 19(3).200 Similarly, in Tae Hoon Park v. Korea the author’s conviction was based on his membership and participation in a peaceful group, ‘Young Koreans United’, while at university in the United States, which discussed issues of peace and unification between North and South Korea, and was critical of the military government. The national security justification advanced by the State lay in the general situation in the country and the threat posed by ‘North Korean communists’, but this failed to ‘specify the precise nature of the threat which it contends that the author’s exercise of freedom of expression posed’ and lacked argument or evidence establishing necessity.201 The legal provisions were so broadly articulated in Keun-Tae Kim v. Korea as to prompt the Committee to comment (as it has done in other cases) that the ‘need for

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CCPR/C/MAR/CO/6 (2016) 43 (deep concern that journalists and human rights defenders were prosecuted on charges of posing a threat to the country’s territorial integrity); Belarus CCPR/C/ BLR/CO/5 (2018) 49 (broadly formulated provision forbidding distribution of information among mass media harming national interest). For recent examples, see Russian Federation CCPR/C/RUS/CO/7) (2015) 20 (vague and open ended definition of ‘extremist activity’ did not require any element of violence or hatred; no clear and precise criteria on how materials may be classified as extremist were provided in the law); Morocco CCPR/C/MAR/CO/6 (2016) 17; Bangladesh CCPR/C/BGD/CO/1 (2017) 9; Algeria CCPR/C/DZA/CO/4 (2018) 17. GC 34 [46]. See also Bangladesh CCPR/C/BGD/CO/1 (2017) 9; Jordan CCPR/C/JOR/CO/5 (2017) 12; Algeria CCPR/C/DZA/CO/4 (2018) 17 (allowing detention and prosecution of those exercising freedom of expression). Turkey CCPR/C/TUR/CO/1 (2012) 16. For a comparison of free speech responses to terrorism in the United States, United Kingdom and Australia, see Katharine Gelber, Free Speech after 9/11 (Oxford University Press, 2016). Sohn v. Korea, CCPR/C/54/D/518/1992, 19 July 1995 [10.4]. Tae Hoon Park v. Korea, CCPR/C/64/D/628/1995, 3 November 1998 [10.3].

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careful scrutiny by the Committee is emphasised by the broad and unspecific terms in which the offence under the National Security Law is formulated’. The author was convicted for having read out and distributed printed material with the intention of siding with the activities of the Democratic People’s Republic of Korea (DPRK; North Korea), while at war with South Korea. The Committee questioned whether the author’s activities were even of a nature to attract the national security restriction allowed by Article 19(3). North Korean policies were well known and it was not clear how the (undefined) ‘benefit’ that might arise for the DPRK from the publication of views similar to their own created a risk to national security, nor was it clear what was the nature and extent of any such risk. There was no indication that the courts, at any level, addressed those questions or considered whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, let alone be necessary.202 It is difficult to imagine quite how a painting could provoke national security assertions by the State, but in Shin v. Korea the author was convicted, and one of his paintings was confiscated, because it depicted a dream of peaceful unification and democratisation of his country based on his experience of rural life during his childhood. In domestic proceedings the prosecution argued that it portrayed the author’s opposition to a corrupt militaristic South and the merits of the peaceful, traditionally-based farming North, and was thus an incitement to ‘communisation’ of the Republic of Korea. The Committee found a violation, as it had done in Tae Hoon Park v. Korea and Keun-Tae Kim v. Korea, in the State’s failure to demonstrate ‘in specific fashion the precise nature of the threat to any of the enumerated purposes’, as well to provide an individualised justification of why the measure was necessary for an enumerated purpose.203 Laptsevich v. Belarus provides an illustration of the Committee’s expectations concerning proof of necessity. The author offended a requirement that publishers display on periodicals certain data, including an index and registration numbers. This could only be obtained from the administrative authorities. The State implied that sanctions on the author for publishing leaflets in breach of this requirement were necessary to protect national security. The Committee instead was of the view that by adhering to this requirement on a leaflet with a print run as low as 200, as the author’s was, the State had established such obstacles as to restrict the freedom to impart information. It pointed out how the State did not attempt to address this issue, it did not give reasons for the requirement, it did not explain why it was necessary for any purpose in Article 19(3), nor did it explain why the author’s breach necessitated not only pecuniary sanctions, but also the confiscation of the remaining leaflets. The reactions of the police and the findings of the 202 Keun Tae Kim v. Korea, CCPR/C/64/D/574/1994, 4 January 1999 [12.3] [12.5]. 203 Hak Chul Shin v. Korea, CCPR/C/80/D/926/2000, 16 March 2004 [7.3].

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courts were based on nothing other than the absence of necessary publication data.204 Some restrictions will never be justified. In Mukong v. Cameroon the author was a journalist, writer and long-time opponent of the one-party system in Cameroon. He frequently and publicly advocated the introduction of multi-party democracy and worked towards establishing a new political party. He was singled out for exceptionally harsh and degrading treatment. The State indirectly justified its actions on national security and/or public order grounds by arguing that the author’s right to freedom of expression was exercised without regard to the country’s political context and continued struggle for unity. The Committee considered that it was not necessary to safeguard an alleged vulnerable state of national unity by subjecting the author to arrest, continued detention and mistreatment in violation of Article 7. The legitimate objective of safeguarding and strengthening national unity under difficult political circumstances could not be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights. Accordingly, the question of deciding which measures might meet the ‘necessity’ test in such situations did not arise.205 The Committee did, however, find a perceived threat to national security and to the rights of others justified the criminal conviction of the authors in A.K. and A.R. v. Uzbekistan for offences related to disseminating ideology propagated by the international Sunni pan-Islamist political party known as Hizb ut-Tahrir. The background included recent terrorist bombings in Tashkent. In concluding that the restrictions were compatible with Article 19(3), the Committee examined various credible sources which supported the national security concerns in the domestic courts, it noted the careful steps taken by the judicial process, including consultation with a group of experts, and it took account of the fact that the authors themselves did not challenge their convictions.206

Public Order Public safety is not a permissible ground of limitation under Article 19, but public order may provide a suitable basis of limitation to meet some safety concerns, for example, those relating to traffic safety (though the State provided no justification in Stambrovsky v. Belarus for refusing permission to hold a picket to a single individual standing in a pedestrian zone of two intersecting streets).207 On occasion, where the State has not invoked any specific limitation ground the Committee has identified the most appropriate one. When this occurred in 204 Laptsevich v. Belarus, CCPR/C/68/D/780/1997, 13 April 2000 [8.5]. See also Sudalenko v. Belarus CCPR/C/104/D/1750/2008, 14 March 2012 [9.5]. See also Symonik v. Belarus, CCPR/C/112/D/1952/2010, 24 October 2014 [7.5]. 205 Mukong v. Cameroon, CCPR/C/51/D/458/1991, 21 July 1994 [9.7]. 206 A.K. and A.R. v. Uzbekistan, CCPR/C/95/D/1233/2003, 31 March 2009 [7.2]. 207 Stambrovsky v. Belarus, CCPR/C/112/D/1987/2010, 24 October 2014 [7.6].

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Velichkin v. Belarus it commented that it was uncontested and the author’s conduct did not pose a threat to public order, which was the nearest available ground.208 In Reyes et al. v. Chile the State partially dismantled an artistic work, ‘Bridges of Memory’, consisting of seventeen banners hung (with official authorisation) in public, commemorating the serious and systematic human rights violations committed during the military dictatorship in Chile. The work was considered a ‘disturbance of public order’, inasmuch as the banners ‘might have been burned’. The Committee observed that any disruption of public order from burning the work was merely speculative, and the State provided no evidence of what specific information it had that gave rise to those fears. It also emphasised two further principles: that States have the obligation to adopt effective measures of protection against attacks aimed at silencing those exercising their right to freedom of expression; and that the State has the positive obligation to facilitate the exercise of the right to freedom of expression. Given that it was the function of the Carabineros to safeguard public order, it was their duty to ensure that the artistic work was not burned.209 A general appeal to the public order ground is therefore manifestly insufficient. The Committee found a violation of Article 19(2) in Esergepov v. Kazakhstan because the State failed adequately to justify how the publication of classified documents left anonymously with a journalist jeopardised public order. His main professional task was to inform society on issues of public interest, and the documents revealed corruption and abuse of power among State officials. What was needed was specific argumentation as to why it was necessary to restrict his freedom of expression.210 However, public order was the ground on which the Committee supported the conviction of a journalist for publishing an article on the results of an opinion poll during the pre-election campaign period in Jong-Cheol v. Korea, as already discussed (as well as respect of the rights of others, namely presidential candidates).211 Public order may be used to support the effective and dignified operation of parliament. In Gauthier v. Canada an independent journalist and publisher was denied full membership of the Canadian Press Gallery, a private association of journalists. The right to enjoy the publicly-funded media facilities of parliament, including the right to take notes when observing meetings of parliament, was confined to those media representatives who were members of the Canadian Press Gallery. On occasion, he held temporary membership, which gave him access to

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Velichkin v. Belarus, CCPR/C/85/D/1022/2001, 20 October 2005 [7.3]. Reyes et al. v. Chile, CCPR/C/121/D/2627/2015, 7 November 2017 [7.4] [7.5]. Esergepov v. Kazakhstan, CCPR/C/116/D/2129/2012, 29 March 2016 [11.6] [11.9]. Jong Cheol v. Korea, CCPR/C/84/D/968/2001, 27 July 2005 [8.3].

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some, but not all, the facilities of the organisation. When he did not hold at least temporary membership he could not access the media facilities nor could he take notes of parliamentary proceedings. The Committee rejected the State’s argument that he did not suffer any significant disadvantage because of technological advances which make information about parliamentary proceedings readily available to the public. The fact remained that his right to have access to information under Article 19(2) was restricted. The State claimed that the membership scheme achieved ‘a balance between the right to freedom of expression and the need to ensure the effective and dignified operation of Parliament and the safety and security of its members’. The Committee agreed that the protection of parliamentary procedure could be seen as a legitimate public order aim and that an accreditation system could be a justified means of achieving it. It described the prerequisites for the operation of such a scheme as follows: its operation and application must be shown as necessary and proportionate to that goal and not arbitrary; the relevant criteria for accreditation should be specific, fair and reasonable; and their application should be transparent. However, because the State had allowed a private organisation to control access to parliamentary press facilities without intervention, and the accreditation system did not ensure that there would be no arbitrary exclusion from access, that system ‘has not been shown to be a necessary and proportionate restriction of rights’ under Article 19(3). The Committee’s deliberate use of the expression ‘has not been shown to be’ served as a reminder of the State’s burden.212 In many countries order and dignity in court proceedings is maintained through power to impose penalties for contempt of court.213 In Dissanakye v. Sri Lanka a sentence of two years’ rigorous imprisonment was found not to be necessary to preserve the respect and reputation of the court, or to preserve public order and morals. The author stated at a public meeting that he would not accept any ‘disgraceful decision’ (a polite translation) of the Supreme Court in relation to a pending opinion on the exercise of defence powers between the president and the Minister of Defence. The sentence was intended to be ‘deterrent’ in nature, since the author had previously been charged with contempt. The incident leading to the charge had not been made in the ‘face of the court’. The Committee found a violation of Article 19, given that there was no reasoned explanation why such a severe penalty was warranted, and because his sentence was based on two contempt charges (without conviction in the case of one of them, following an apology).214 212 Gauthier v. Canada, CCPR/C/65/D/633/1995, 5 May 1999 [13.5] [13.6]. 213 See, e.g., Lovell v. Australia, CCPR/C/80/D/920/2000, 24 March 2003 [9.4] (the author’s conviction for contempt was a permissible restriction of his freedom of expression when he published confidential documents which were directed to be discovered, but were not allowed to be adduced in evidence and therefore would not become part of the published record). 214 Dissanayake v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.3]. See also Fernando v. Sri Lanka, CCPR/C/83/D/1189/2003, 31 March 2005 [9.2] (no reasoned explanation was provided as to why such a severe penalty (a one year term of ‘Rigorous Imprisonment’) was

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Restrictions on prisoners often raise public order issues. In Baban v. Australia the author alleged that his hunger strike was a legitimate expression of his right to protest, and that his forced removal from one detention centre to another violated his freedom of expression. The Committee addressed this only as a matter of admissibility, commenting that even if he is correct that a hunger strike may be subsumed under that right, in the light of the State’s concerns about the health and safety of detainees, including young children and others, the removal of hunger strikers from a location giving rise to these concerns may properly fall within the legitimate restrictions provided for in Article 19(3).215 Civic regulations often control public behaviour in certain places. Coleman v. Australia concerned the conviction and sentencing of the author under a by-law requiring a permit for making a public address in a pedestrian mall. He made a soapbox presentation on issues of public interest, including bills of rights, freedom of speech, and mining and land rights. The by-law undoubtedly aimed to strike a balance between an individual’s freedom of speech and the general interest in maintaining public order in a certain area. However, the author’s address was neither threatening, unduly disruptive or otherwise likely to jeopardise public order in the mall. Police officers present did not curtail his address but allowed him to proceed while videotaping him. The Committee found that the authority’s reaction, in fining him and, when he failed to pay, holding him in custody for five days, was disproportionate.216 It illustrates the point made in General Comments 27 and 34 that the principle of proportionality applies both to the law that produces the restrictions, and to the administrative and judicial authorities that apply the law.217

Public Health and Public Morals Examples of ‘public health’ restrictions on freedom of expression may include the plain packaging regulation of tobacco advertising,218 restrictions on alcohol advertising, public policy controls on the use of trade marks so as not to preclude the use of hazard warnings, and the curtailment of misleading advertising with unfounded health claims as a matter of consumer protection legislation. The protection of ‘public morals’ is noted for its weakness as a basis of limitation, principally for lack of a universally applicable common standard, as the Committee noted in Hertzberg et al. v. Finland when the Finnish Government

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warranted, for repetitious filing of motions by the author, for which an imposition of financial penalties would have evidently been sufficient, and one instance of ‘rais[ing] his voice’ in the presence of the court and refusing to apologise). Baban v. Australia, CCPR/C/78/D/1014/2001, 6 August 2003 [6.7] (claim not substantiated). Coleman v. Australia, CCPR/C/87/D/1157/2003, 17 July 2006 [7.3]. GC 27 [15]; GC 34 [34] (GC 34 appears to cite wrongly GC 27 [14]). See, e.g., the Art. 19 justifications in the explanatory statement to the Australian Tobacco Plain Packaging Amendment Regulation 2012 (No. 1).

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unsuccessfully invoked this ground to justify censorship of programmes dealing with homosexuality. The Committee’s Views, adopted in 1982, are surprising by current standards, in upholding the censorship restriction because the Committee did not feel able to question the authorities’ decision that radio and TV were not the appropriate forums to discuss issues related to homosexuality, ‘as far as a programme could be judged as encouraging homosexual behaviour’. Among the rationale for this (having regard to the special duties and responsibilities of State organs when exercising the freedom of expression) were that broadcast audiences ‘cannot be controlled’ and that the ‘harmful effects on minors cannot be excluded’.219 The concurring but clarifying Individual Opinion of Torkel Opsahl stressed the State’s obligation to prove the necessity of restrictions, even if the relevant laws may reflect prevailing moral conceptions. He aired some important features of Article 19, namely, that everyone must in principle have the right to impart information and ideas, both positive and negative on this subject matter (and presumably any other matter), and discuss any problem relating to it freely. In his view, the conception and contents of ‘public morals’ were relative and changing, and State-imposed restrictions on freedom of expression must allow for this, but ‘should not be applied so as to perpetuate prejudice or promote intolerance’. It was of special importance to him to protect freedom of expression ‘as regards minority views, including those that offend, shock or disturb the majority’. Ultimately for him it was decisive that ‘nobody – and in particular no State – has any duty under the Covenant to promote publicity for information and ideas of all kinds’, and that access to media operated by others is always and necessarily more limited than the general freedom of expression, such that it may be controlled on grounds which do not have to be justified under Article 19(3).220 This, however, must be read in the light of the need for an independent and diverse media already discussed. For the purpose of Article 19 the Committee has minimised the scope for reliance on morals insofar as they emanate from a dominant religion, ideology or tradition. In General Comment 34, the Committee adopted the statement in General Comment 22, that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations . . . for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’. Any such limitations must be understood in the light of the universality of human rights and the principle of non-discrimination.221 The question of morals arose in Fedotova v. Russian Federation. As already mentioned, the author was convicted for displaying posters declaring her positive

219 Hertzberg et al. v. Finland, Communication No. 61/1979, CCPR/C/OP/1 at 124 [10.3] [10.4]. 220 Individual Opinion of Torkel Opsahl in Hertzberg et al. v. Finland, Communication No. 61/ 1979, CCPR/C/OP/1 at 124 (1985). 221 GC 34 [32]; GC 22 [8].

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attitude to her sexual orientation. The question of morals was relevant because the State characterised as the purpose of the restriction to protect ‘morals, health, rights and legitimate interests of minors’. The author correspondingly attempted to marginalise the significance of morals. She claimed the law that authorised her administrative conviction was contrary to Article 26, since it was contained in a chapter aimed at protecting the morals of minors, on the assumption that homosexuality is something immoral.222 In its Article 19 analysis the Committee drew on the above passage from General Comment 34 on limitations protecting morals. As to whether the restriction pursued a legitimate aim, the Committee recognised the role of authorities in protecting the welfare of minors. However, the State simply failed to demonstrate the necessity in this instance of imposing on the author an administrative conviction, on the basis of ambiguous and discriminatory law, for expressing her sexual identity and seeking understanding for it, even if, as the State maintained, she intended to engage children in the discussion of issues related to homosexuality.223 The brief, but critically important, excursus by the Committee on the basic principles of nondiscrimination which fed into this the finding have been discussed above.224 ‘Morals’ may be a basis of restrictions on publication of pornographic material under Article 19(3). The Committee has certainly raised this as an Article 19 issue in the context of Article 3.225 The sexual exploitation of children is also a key aspect of Article 24(1) relevant to pornography.226

I M P L E M E N TAT I O N The most important issues of implementation were canvassed above in the section ‘Domestic Law Requirements’, and include observance of the strict terms of limitation to ensure compliance with Article 19(3) both in the law and its practical operation, with special attention to whether domestic law and practice are more restrictive than Article 19(3) permits. Particular parameters for defamation law were addressed in the section ‘Respect of the Rights and Reputations of Others’. 222 In Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012 [5.9] [5.12] (the author argued (through submissions by the International Commission of Jurists) that public morality does not provide ‘reasonable and objective’ justification for differences in treatment founded on sexual orientation, that public morality arguments have diminished in weight over time and conceptions of public morality are subject to change). 223 Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012 [10.4], citing GC 34 [26]. On similar legislation, see Lithuania CCPR/C/LTU/CO/3 (2012) 8. 224 See section ‘Covenant Incompatibility of Laws’, above. 225 See chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Freedom of Expression’. 226 See chapter on Article 24: Protection Required for Children, section ‘Slavery, Servitude and Forced Labour: Article 8’; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, New York, 25 May 2000, A/RES/ 54/263; C.N.1032.2000.

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The Committee has expressed recurring concern for legislation that creates vaguely defined offences, is open to wide interpretation, allows wide prosecutorial discretion, or that has a chilling effect on freedom of expression. Legislation must also not authorise discriminatory restrictions on freedom of expression, while allowing differentiation based on reasonable and objective criteria. Other issues for implementation include the need for legislation where particular rights are not protected, such as to guarantee the right of access to information; efforts to increase media pluralism, and the diversity of views and information accessible to the public, and the establishment of an independent public broadcasting licensing authority. The Committee has raised the question of excessive derogation from Article 19, for example, by Serbia and Montenegro, Thailand and Guinea.227 It has also maintained pressure on States to withdraw reservations and declarations affecting Article 19.228

C O N C L US I O N General Comment 34 has contributed significantly to an appreciation of the requirements of Article 19. It offers a valuable recent restatement of a number of important principles concerning the limitation of rights, indicating convergence across Articles 12(3), 18(3), 19(3), 21 and 22(2), as may be expected, even though important distinctions between those provisions remain. An emerging emphasis across limitation provisions is the requirement for Covenant compatibility of laws which authorised restriction of the freedom of expression. The message that resounds across the Committee’s Concluding Observations and its Article 19 jurisprudence is the need for domestic law to reflect the absolute nature of freedom of opinion and for the limitation provisions to admit no broader basis of restriction than is stipulated in Article 19(3). In the practical operation of those laws the burden on the State is high to formulate restrictions carefully and to prove to a strict standard the necessity of restrictions based, among other things, on the precise nature of the threat posed, and on the need to ensure that they represent the least intrusive means of achieving their genuine protective purpose. Since freedom of expression is especially valued this standard is not met lightly. The ‘special duties and responsibilities’ on those exercising the freedom of expression do not displace or in any way relax the rigour of the disciplines which apply to determine whether restrictions on the right are justified, and are 227 Serbia and Montenegro CCPR/CO/81/SEMO (2004) 13; Thailand CCPR/C/THA/CO/2 (2017) 5; Guinea CCPR/C/GIN/CO/3 (2018) 13. 228 E.g., France A/38/40 (1983) 296, 309; Luxembourg A/41/40 (1986) 70; Australia A/43/40 (1988) 448, 449; Belgium A/43/40 (1988) 468; France A/43/40 (1988) 397; India CCPR/C/79/ Add.81 (1997) 14; Italy CCPR/C/ITA/CO/5 (2006) 6; Belgium CCPR/C/BEL/CO/5 (2010) 7; Ireland CCPR/C/IRL/CO/3 (2008) 5; Malta CCPR/C/MLT/CO/2 (2014) 6.

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particularly important to the limitation ground ‘respect of the rights and reputations of others’. The power of mass media, and social media, is especially relevant in this context. State responsibilities of a structural nature include promoting an independent and diverse media, free of undue censorship, characterised by media pluralism both in the content and in public access to a diversity of views and information; avoiding concentration of media ownership and influence by political and private interests that may not be in the public interest. Consistency is achieved across Articles 19 and 20. Restrictions on conduct falling within the Article 20(2) prohibition will always be justified under Article 19(3); but restrictions on freedom of expression must always satisfy all the conditions for limitation under Article 19(3). Laws directed at implementing Article 20 must therefore be fully compliant with Article 19(3).

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Article 20: Propaganda for War and Hate Speech

INTRODUCTION PROPAGANDA FOR WAR: ARTICLE 20(1) HATE SPEECH: ARTICLE 20(2) IMPLEMENTATION CONCLUSION

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Covenant Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Comparable Provisions in Other International Instruments European Convention: no counterpart American Convention on Human Rights: Article 13(5). African Charter on Human and Peoples’ Rights: no counterpart

INTRODUCTION Article 20(2) mandates that any ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. Although Article 20 addresses both racial hatred and religious hatred, they possess different characteristics, and restrictions on each give rise to a dissimilar set of implications. This is reflected in the development of UN instruments on the subject. Following various anti-Semitic incidents in the early 1960s, the General Assembly passed a resolution calling for the preparation of a draft Declaration and a draft Convention on the elimination of religious intolerance. Simultaneously, a draft Declaration and a draft Convention were advanced on the elimination of racial discrimination in the knowledge that issues of racial discrimination could be progressed swiftly with the removal of content relating to religious intolerance. The

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Declaration on Racial Discrimination was adopted in 1963,1 followed rapidly by the adoption of the Convention on Racial Discrimination in 1965.2 By contrast, it was not until nineteen years after the General Assembly called for the preparation of a convention on religious intolerance that, at best, a declaration could be adopted, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,3 while a convention still remains an aspiration. Race-based hate speech laws may be compatible with Articles 18 and 19, but when applied in the same terms to religion may be quite incompatible with them. Among the issues relevant to religion which do not apply symmetrically to race is the importance attached to free expression in matters concerning religion (as a matter of Article 18 and 19 freedoms), including in exposition of belief and opposition to it, as illustrated by the difficulties posed by defamation of religion in many countries. Interaction between Article 20 and Other Covenant Provisions It is important to mark the relationship between Article 20(2) and the rights which are primarily restricted by its prohibitions, namely, those under Articles 18, 19, 21 and 22. Any activity constituting advocacy of national, racial or religious hatred to be prohibited under Article 20(2) automatically qualifies as conduct justifying restriction under Articles 18(3), 19(3), 21 or 22(2), applying the disciplines of limitation discussed in the chapters on those provisions.4 Matters falling within Article 20(2) must be prohibited; those within the limitation provisions of Articles 18, 19, 21 and 22 may be restricted. Article 5 may prevent claims that conduct is protected where it is destructive of Covenant rights, though the Committee has not developed such a consistent approach to that effect as the European Court has in the context of hate speech.5.

1 Declaration on the Elimination of All Forms of Racial Discrimination, 20 November 1963, A/ RES/1904. 2 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS, vol. 660 (ICERD), p. 195. 3 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55 (the 1981 Declaration). 4 The Art. 20 prohibitions ‘are fully compatible with the right of freedom of expression as contained in article 19’: General Comment No. 11: Article 20 (Prohibition of Propaganda for War and Inciting National, Racial or Religious Hatred), 29 July 1983 (GC 11) [2]. On the interrelation between Articles 19 and 20, see Nazila Ghanea, ‘Intersectionality and the Spectrum of Racist Hate Speech: Proposals to the UN Committee on the Elimination of Racial Discrimination’, (2013) 35 Hum. Rts Q., p. 935, at pp. 935 8; and Nazila Ghanea, ‘Expression and Hate Speech in the ICCPR: Compatible or Clashing’, (2010) 5 Religion & Hum. Rts, p. 171. 5 The now clearly established approach under the European Convention is that speech incompatible with the values proclaimed and guaranteed by the Convention is not protected by Art. 10, by virtue of Art. 17 (comparable to Covenant Art. 5): see e.g. Delfi AS v. Estonia, App.No 64569/09, Judgment of 16 June 2015 [GC] [136].

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P R O PA G A N D A F O R WAR : A RT I C L E 2 0 ( 1 ) The term ‘propaganda for war’ in Article 20(1) is imprecise, owing to the lack of any consistent interpretation across national legal systems (and only some use in national and international legal norms at the time the text was developed). In the light of the specific proposals ultimately giving rise to Article 20(1), Nowak concludes that its object and purpose was to forbid propagandist incitement roughly comparable with that practised in the Third Reich. The term ‘propaganda’ has a particular meaning. It may be understood to mean ‘intentional, well-aimed influencing of individuals by employing various channels of communication to disseminate, above all, incorrect or exaggerated allegations of fact. Also included thereunder are negative or simplistic value judgements whose intensity is at least comparable with that of provocation, instigation or incitement . . . However, propaganda must be specific enough for evaluating whether it relates to a war of aggression or not.’ The prohibition of propaganda for war was meant to be a limitation on freedom of expression, and also on other rights of political liberty such as freedom of assembly.6 General Comment 11 on Article 20 distinguishes between acts of aggression, on the one hand, and, on the other, permissible defensive conflict and other assertion of legitimate rights under the Covenant. It clarifies that Article 20(1) ‘extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations’, but does ‘not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations’.7

H AT E S P E E C H : A RTI C L E 2 0 ( 2 ) The threshold established in Article 20(2) is extremely high. Although ‘incitement to discrimination, hostility or violence’ embraces a wide range of acts, the confining phraseology is ‘advocacy of national, racial or religious hatred that constitutes incitement to’ such acts.8 Nowak suggests that in interpreting Article 20(2) in the light of its object and purpose it is relevant to observe its responsive 6 Nowak, CCPR Commentary, pp. 472 3. For the Covenant travaux préparatoires and the context in which international law first came to be concerned with propaganda for war, see Michael Kearney, The Prohibition of Propaganda for War in International Law (Oxford University Press, 2007); and for detail on the prohibition of propaganda for war, Michael Kearney, ‘The Prohibition of Propaganda for War in the International Covenant on Civil and Political Rights’, (2005) 23(4) NQHR, p. 551. 7 GC 11 [2]. For the drafting of GC 11, see McGoldrick, Human Rights Committee, pp. 484 et seq. For right of self defence, see Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 51 and ch. VII more generally. 8 The distinctions in ICERD are those based on ‘race, colour, descent, or national or ethnic origin’. For distinctions based on national origin, see Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, p. 209, at p. 228. The mandate of the Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance is of related interest and concerns anti Semitism, Christianophobia, Islamophobia, and racist and violent movements based on

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character to the Nazi racial hatred campaigns, and to grasp that what the Human Rights Commission and General Assembly had in mind was ‘to combat the horrors of fascism, racism and National Socialism at their roots, i.e. to prevent the public incitement of racial hatred and violence within a State against other States and peoples’.9 A great many forms of expression may too readily be assumed to fall within the scope of Article 20(2). To qualify they must cumulatively constitute ‘advocacy’ specifically ‘of national, racial or religious hatred’ (other advocacy of hatred may qualify for restriction under Article 19(3)), ‘constituting incitement’ (which denotes deliberate actuation, whether effective or not), ‘to discrimination, hostility or violence’.10 There has been some instability on the part of the Committee in its preparedness to invoke Article 20. Article 20 was triggered in J.R.T. and the W.G. Party v. Canada, which concerned an Article 19 claim that resulted from restrictions on the use of the public phone system to attract membership and promote the policies of the author’s political party. The public could dial a number to hear recorded messages, which warned ‘of the dangers of international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles’. The relevant part of the communication was inadmissible for being incompatible with the provisions of the Covenant, since the opinions the author sought to disseminate ‘clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit’.11 In a clear instance of Holocaust denial in Faurrison v. France, the Committee considered the author’s allegations on their merits but confined its consideration only to Article 19(3) without engaging with the State’s argument that the restriction was mandated by Article 20: Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-Semitic feelings, the restrictions served racism and discriminatory ideas directed at Arab, African, Christian, Jewish, Muslim and other communities. 9 Nowak, CCPR Commentary, p. 475. 10 In relation to the discrimination limb, Robert Post in ‘Religion and Freedom of Speech: Portraits of Muhammad’, (2007) 14 Constellations, p. 72, at p. 83, suggests that ‘states must show that the harm of discrimination cannot be ameliorated by means other than the suppression of protected speech’. Jeroen Temperman is prolific on the subject of Art. 20(2) and his recent writings include Jeroen Temperman, Religious Hatred and International Law: the Prohibition of Incitement to Violence or Discrimination (Cambridge University Press, 2016) (a comparison between the work ings of the Committee, the UN Committee on the Elimination of Racial Discrimination and the European Court); Jeroen Temperman, ‘The International Covenant on Civil and Political Rights and the Right to Be Protected against Incitement’, (2019) 7 JLRS, p. 89; Jeroen Temperman, ‘The Prohibition of Advocacy of Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence: a Taxonomy’, in W. Cole Durham Jr. and Donlu D. Thayer (eds), Religion, Pluralism, and Reconciling Difference (Routledge, 2019), p. 94. 11 J.R.T. and the W.G. Party v. Canada, Communication No. 104/1981, CCPR/C/OP/2 at 25 (1984), 6 April 1983 [8(b)].

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the respect of the Jewish community to live free from fear of an atmosphere of anti-Semitism. The Committee therefore concludes that the restriction of the author’s freedom of expression was permissible under article 19, paragraph 3(a), of the Covenant.12

The Committee’s more recent position is reflected in its decision in Ross v. Canada. The Committee rejected the State’s appeal to J.R.T. and the W.G. Party to render the claim inadmissible, and instead justified the need for full merits consideration because ‘restrictions on expression which may fall within the scope of Article 20 must also be permissible under article 19, paragraph 3 . . . In applying those provisions, the fact that a restriction is claimed to be required under article 20 is of course relevant. In the present case, the permissibility of the restrictions is an issue for consideration on the merits.’ The Committee used Article 20(2) to give greater substantiation to its finding that the restriction was justified under Article 19(3): ‘[s]uch restrictions also derive support from the principles reflected in article 20(2) of the Covenant’.13 Faurisson is particularly valuable for the discussion it generated on the distinctions between Articles 19(3) and 20. The author was convicted under the Gayssot Act, which criminalised challenges to the conclusions and the verdict of the Nuremberg Tribunal. The Committee supported the State’s arguments of necessity under Article 19(3), in serving the struggle against racism and anti-Semitism, noting that Holocaust denial was the principal vehicle for anti-Semitism,14 without making any determination concerning the direct application of Article 20(2). In a joint Concurring Opinion Ms Elizabeth Evatt and Mr David Kretzmer agreed that the finding under Article 19(3) was more appropriate to these statements, since Article 19(3) was capable of addressing the adverse effects of a broader range of acts warranting restriction in extreme circumstances. They were concerned at the narrowness of the strict legal criteria of incitement under Article 20, which did not catch statements forming part of a pattern of incitement against a given racial, religious or national group, nor sophisticated forms of speech by those spreading hostility and hatred, even though their effect may be as pernicious. As acknowledged by Article 7 of the Universal Declaration (the main non-discrimination provision), every individual has the right to be free not only from discrimination on grounds of race,

12 Faurisson v. France, CCPR/C/58/D/550/1993, 8 November 1996 [9.6] (the author’s guilt was based on his following two statements: ‘ . . . I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers . . . I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication’ ([9.5])). 13 Ross v. Canada, CCPR/C/70/D/736/1997, 18 October 2000 [10.5] [10.6]. 14 Faurisson v. France, CCPR/C/58/D/550/1993, 8 November 1996 [9.7].

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religion and national origin, but also from incitement to such discrimination.15 The Gaysott Act, under which Faurisson was convicted, was controversial because of its excessive breadth in criminalising challenges to the conclusions and the verdict of the Nuremberg Tribunal. The Committee itself did not contest that the legislation could lead to decisions or other measures incompatible with the Covenant, but given its competence under OP1, its job was not to criticise the law in the abstract.16 Ms Evatt and Mr Kretzmer pointed out that among the various faults of this legislation was that it was couched in the widest language prohibiting even publication of bona fide research, disproportionate to its purpose, not linking liability to the intent of the author, nor the tendency of the publication to incite anti-Semitism. Also, it created absolute liability with no available defences, and was not conditioned on necessity for the purposes established in Article 19(3). Mr Lallah considered that these deficiencies were ‘remedied’ in the application of the legislation to the author by the conclusion of the domestic courts that the author’s statements propagated ideas tending to revive Nazi doctrine and the policy of racial discrimination, and were of such a nature as to raise or strengthen antiSemitic tendencies, amounting to the advocacy of racial or religious hatred which France was entitled to proscribe under Article 20(2). (As already observed in the chapter on Article 2, such broad legislation may represent a compliance failure, even if the Committee declines to address that issue on individual petition.17) The Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence was developed principally to enhance understanding of the relationship between Articles 20 and 19.18 Its aim was to assess the implementation of legislation, jurisprudence and policies regarding advocacy of national, racial or religious hatred, while encouraging full respect for freedom of expression. The interrelation between Articles 20 and 18 is also important given that it is often suggested that freedom of expression and freedom of religion or belief are in a tense relationship, or even contradictory, when in reality they are mutually dependent and reinforcing:

15 Individual Opinion by Elizabeth Evatt and David Kretzmer in Faurisson v. France, CCPR/C/58/ D/550/1993, 8 November 1996, co signed by Eckart Klein (concurring) [4] [7]. 16 Faurisson v. France, CCPR/C/58/D/550/1993, 8 November 1996 [9.3]. 17 Chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘Article 2(2): Laws and Other Measures to give Effect to Covenant Rights’, ‘Achieving Covenant Compliance in Domestic Law’, ‘Terms of Limitation’. 18 Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence, A/HRC/22/17/Add.4, Appendix (2013) (Rabat Plan) [18]. At [18] the Rabat Plan also drew on the Camden Principles on Freedom of Expression and Equality (London, April 2009), prepared by Art. 19 on the basis of discussions involving a group of high level UN and other officials, and civil society and academic experts in international human rights law on freedom of expression and equality issues.

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The freedom to exercise or not exercise one’s religion or belief cannot exist if the freedom of expression is not respected, as free public discourse depends on respect for the diversity of convictions which people may have. Likewise, freedom of expression is essential to creating an environment in which constructive discussion about religious matters could be held. Indeed, free and critical thinking in open debate is the soundest way to probe whether religious interpretations adhere to or distort the original values that underpin religious belief.19

The 2015 report of the Special Rapporteur on Religion or Belief took a critical view of the use of sanctions to protect against incitement to acts of hatred (as reaffirmed in Human Rights Council Resolution 16/1820 and the Rabat Plan). It pointed to two mischiefs in particular: on the one hand, failure to act in ‘real’ incitement cases (which creates a climate of impunity for those involved in hate speech when these individuals should be prosecuted); and, on the other hand, that of overzealous reactions to innocuous cases, which creates a climate of intimidation for those fully entitled to exercise their freedom of expression.21 The Rabat Plan voiced the same concern by observing that perpetrators of incidents which properly reach the threshold of Article 20 were not prosecuted and punished. At the same time, members of minorities were de facto persecuted, with a chilling effect on others, through the abuse of vague domestic legislation, jurisprudence and policies.22 The Rabat Plan also concluded that the broader the definition of incitement to hatred is in domestic legislation, the more it opens the door for arbitrary application of the laws. It observed that terminology on incitement varied from country to country, but was increasingly vague, and new categories of restrictions or limitations to freedom of expression were being incorporated. This had contributed to the risk of misinterpretation of Article 20 and additional limitations to freedom of expression not contained in Article 19.23

I M P L E M E N TAT I O N Domestic Measures to ‘Prohibit by Law’ The conduct described in Article 20(1) and (2) is to be ‘prohibited by law’. It need not be proscribed by criminal provisions, in contrast to Article 4 of ICERD which requires 19 Rabat Plan [10]. 20 Human Rights Council Resolution 16/18, Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence and Violence against, Persons Based on Religion or Belief, A/HRC/RES/16/18, 12 April 2011. 21 A/HRC/31/18 (2015) [62] [63]. See also A/HRC/71/269 (2016) 46 for the Special Rapporteur’s commentary of ‘overly broad anti hatred laws’, and anti hatred provisions which lump together a wide range of different ‘offences’, thereby allowing for arbitrary applications; and A/HRC/13/ 40/Add.2 (2009) [46] [48] on incitement to religious hatred. 22 Rabat Plan [11]. 23 Rabat Plan [15].

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criminal sanctions. The law must, however, provide for an appropriate sanction (which may be criminal, civil or administrative),24 and should make it clear that any propaganda for war (under Article 20(1)) or advocacy of national, racial or religious hatred (under Article 20(2)) are contrary to public policy.25 The State must itself refrain from any such propaganda or advocacy. As to enforcement, the authors in Rabbae et al. v. Netherlands were unsuccessful in arguing that the acquittal of the M.P. Geert Wilders in a private prosecution on charges of ‘insult of a group for reasons of race or religion’ was contrary to Article 20(2) (and also Articles 26 and 27 given the link between Article 20 and those provisions). Article 20(2) does not extend to an obligation on the State to ensure that a person who is charged with incitement to discrimination, hostility or violence will invariably be convicted by an independent and impartial court of law. Among the fundamental principles which the Committee reiterated were that: it is only with regard to the specific forms of expression indicated in Article 20 that States are obliged to have legal prohibitions; Article 20(2) is crafted narrowly in order to ensure that other equally fundamental Covenant rights, including freedom of expression, are not infringed; freedom of expression embraces even expression that may be regarded as deeply offensive; the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential to the promotion and protection of free expression; prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in Article 20(2); and such prohibitions may not be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.26 The Committee frequently criticises States for failure to enact provisions required by Article 20.27 It is astute to ensure that implementation corresponds 24 Rabbae et al. v. Netherlands, CCPR/C/117/D/2124/2011, 14 July 2016 [10.4]. 25 GC 11 [2]. 26 Rabbae et al. v. Netherlands, CCPR/C/117/D/2124/2011, 14 July 2016 [5.4], [10.2] [10.7], referring to GC 34 [11], [20] and [48]. See also A.W.P. v. Denmark, CCPR/C/109/D/1879/2009, 1 November 2013 (a Muslim who claimed a violation of Arts 2(3)(b), 20(2) and 27 in the State’s failure to take effective action against the expression of anti Muslim sentiments by members of the Danish Parliament and the European Parliament, including a statement comparing Islam with Nazism, failed to establish that those statements had specific consequences for him or that the specific consequences of the statements were imminent and would personally affect him (inad missible as not a victim)). For a study of Committee determinations of standing, see Whittney Barth, ‘Taking Great Care: Defining Victims of Hate Speech Targeting Religious Minorities’, (2018) 19 Chi. J. Int. L., p. 68. 27 E.g., Colombia A/35/40 (1980) 255 (no specific legal provisions existed with regard to the prohibi tion of propaganda for war); Italy A/36/40 (1981) 126 (repudiation of war was not the same as the prohibition of war propaganda specifically required by Art. 20); Jamaica A/36/40 (1981) 270 (domestic law covered internal armed conflict, insurrection and the creation of discontent, dissatis faction and ill will rather than Art. 20 content); Japan A/37/40 (1982) 72 (the Committee did not readily accept that any propaganda for war was almost inconceivable since the Constitution provided for the renunciation of war); Argentina A/45/40 (1990) 225 (no provision had been made for the prohibition of war propaganda); Australia CCPR/C/AUS/CO/5 (2009) 26 (the Committee regretted the lack of hate speech prohibitions of the form envisaged by Art. 20).

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with the terms of Article 20,28 including where provisions omit a particular ground on which hate speech is to be prohibited,29 or fail to penalise other conduct prohibited under Article 20.30 It has recommended compensation and other reparation for victims of hate crimes,31 as well as effective enforcement.32 It is also concerned about laws which are vague or allow scope for abuse.33 Antivilification laws are of concern where they may undermine freedom of expression or freedom of religion,34 as are other laws which prohibit expression ‘offensive to religious or political beliefs’.35 The Committee has taken issue with States over restrictions on the dissemination of jokes and cartoons,36 as well as laws creating liability for contempt of religion,37 for offending the royal family,38 for insulting 28 E.g., Austria A/38/40 (1983) 196 (relevant Austrian legislation did not really correspond to Art. 20, especially with regard to war propaganda or incitement to commit hostile acts). See also Gambia A/ 39/40 (1984) 338 (the Committee asked for clarification of the scope and import of the provisions prohibiting individuals from aiding, advising or preparing for any war or warlike undertaking). 29 E.g., Sri Lanka A/39/40 (1984) 111 (one member noted the absence in the report of any mention of the prohibition of racial hatred as required in Art. 20). 30 Costa Rica A/35/40 (1980) 349 (the absence in the Costa Rican legislation of any penalty for the violation of the prohibition of war propaganda rendered the Covenant inoperative in this respect). 31 E.g., Czech Republic CCPR/C/CZE/CO/3 (2013) 8; Russian Federation CCPR/C/RUS/CO/6 (2009) 11. 32 E.g., Egypt CCPR/CO/76/EGY (2002) 18; Togo CCPR/C/TGO/CO/4 (2011) 9; Iceland CCPR/ C/ISL/CO/5 (2012) 6 (ensure extension to social media). 33 E.g., Mongolia A/35/40 (1980) 101 and 115 (the propagation of ideas of ‘chauvinism’ and ‘nationalism’ was prohibited by law, which the State explained was because such ideas were considered reactionary, since they incited hatred between peoples and races and attempted to justify nationalistic exclusiveness and domination). See also Hungary CCPR/C/HUN/CO/5 (2010) 19 (concern that the evolution of the so called ‘memory laws’ risked criminalising a wide range of views on the understanding of the post Second World War history of the State). 34 E.g., Malta CCPR/C/MLT/CO/2 (2014) 22 (regret that the Criminal Code provided for crimes against religious sentiment and criminalised the vilification of the Roman Catholic Apostolic religion, as well as the vilification of other cults tolerated by law, which may undermine the right to freedom of expression and freedom of religion; it recommended Malta consider repealing that part of the Criminal Code). See also Syria A/32/40 (1977) 115(i) (those who fail to respect any of the main religions may be severely punished); Australia CCPR/C/AUS/CO/6 (2017) 19, 20 (whether there were plans to introduce federal legislation to reconcile inconsistencies in state and territorial anti vilification laws; recommendation to ensure adequate measures of response to instances of incitement to discrimination or violence on racial, ethnic or religious grounds, across all states and territories). For close examination of hate speech regulation in Australia, see Katharine Gelber and Adrienne Stone, Hate Speech and Freedom of Speech in Australia (Federation Press, 2007); Katharine Gelber, Speech Matters: Getting Free Speech Right (University of Queensland Press, 2011). 35 E.g., Lithuania CCPR/C/SR.2896 (2012) [16] (Mr O’Flaherty noted that the prohibition of any expression that was ‘offensive to religious or political beliefs’ appeared to be incompatible with Art. 19). 36 E.g., Czech Republic A/41/40 (1986) 355 (Committee members asked why the dissemination of jokes and cartoons was regarded as an offence). 37 E.g., Norway A/36/40 (1981) 366 (legislation stated that ‘no person shall be punished for any writing, whatever its contents may be, which he has caused to be printed or published, unless he wilfully and manifestly has either himself shown or incited others to disobedience of the laws, contempt of religion or morality of the constitutional order’). 38 E.g., Monaco CCPR/C/MCO/CO/3 (2015) 10 (concern at the fact that publicly offending the royal family continued to be a crime punishable by imprisonment for up to five years even though

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public officials, the head of State, or failing to show respect to the president and other senior officials.39 The Committee is generally opposed to blasphemy laws,40 and it has closely monitored blasphemy provisions.41 It has pointed out the incompatibility of blasphemy laws with the Covenant,42 and it has been concerned that States ensure their removal,43 whether or not they are being applied.44 It is also concerned about measures which protect against defamation of religion,45 or ‘lack of respect’ for religion,46 on the basis of their incompatibility with the Covenant. As the Committee put it in General Comment 34, ‘[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in Article 20, paragraph 2, of the Covenant’.47

39

40

41

42 44 45

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47

in practice punishment had usually been limited to the payment of a fine and recommended changes to the law). Mongolia A/41/40 (1986) 254 (members of the Committee wished to receive information concerning the scope of the punishment for ‘insult’ and asked how that offence differed from slander or libel and whether slander against the State was a punishable offence); see also chapter on Article 19: Freedom of Expression, sections ‘Domestic Law Requirements’, ‘Respect of the Rights and Reputations of Others’ and ‘National Security’. For recent sample of Concluding Observations on blasphemy, see Kuwait CCPR/C/KWT/CO/3 (2016) 38, 39, 41 (repeal laws criminalising blasphemy); Italy CCPR/C/ITA/CO/6 (2017) 38, 39 (concern that blasphemy remained criminal); Pakistan CCPR/C/PAK/CO/1 (2017) 33 (blas phemy carries the mandatory death penalty; very high number of blasphemy cases based on false accusations; violence against those accused of blasphemy; recommendation to ensure that all those who incite or engage in violence against others based on allegations of blasphemy, as well as those who falsely accuse others of blasphemy, are brought to justice and duly punished); Bahrain CCPR/C/BHR/CO/1 (2018) 54 (decriminalise blasphemy); Lebanon CCPR/C/LBN/ CO/3 (2018) 45, 46 (concern about the criminalisation of blasphemy). E.g., Canada A/35/40 (1980) 170 (questioning what constituted ‘blasphemous libel’ under the Criminal Code and whether that term had received judicial interpretation); Trinidad and Tobago A/43/40 (1988) 71 (whether the prohibition against publishing ‘blasphemous . . . matter’ was consistent with the right to freedom of expression under Art. 19); New Zealand A/44/40 (1989) 391 (additional information was requested on whether blasphemy was defined as a criminal offence in the Crimes Act 1961); Netherlands CCPR/C/NLD/CO/4 (2009) 16 (the State should closely monitor any legislative reform when abolishing the provision on blasphemy to ensure that it is compatible with Art. 19). Kuwait CCPR/C/KWT/CO/2 (2011) 24. 43 Ibid.; Ireland CCPR/C/IRL/CO/4 (2014) 22. Ireland CCPR/C/IRL/CO/4 (2014) 22. Indonesia CCPR/C/IDN/CO/1 (2013) 25 (defamation of religion, which prohibited the inter pretations of religious doctrines considered divergent, unduly restricted the freedom of religion and expression of religious minorities, such as the Ahmadiyya). For a critique of the concept of ‘defamation’ of religion, see Lorenz Langer, Religious Offence and Human Rights: the Implications of Defamation of Religions (Cambridge University Press, 2014). Kuwait CCPR/C/KWT/CO/2 (2011) 24; Kuwait CCPR/C/KWT/CO/3 (2016) 40 (restrictive, vague and broadly worded provisions used to prosecute those expressing views deemed to defame religion); Bangladesh CCPR/C/BGD/CO/1 (2017) 27(b) (concern about a de facto blasphemy law that limited freedom of opinion and expression using vague and overbroad terminology to criminalise publishing information online, that ‘hurts religious sentiment’). General Comment No. 34: Article 19 (Freedoms of Opinion and Expression), 12 September 2011, CCPR/C/GC/34 (GC 34) [48]. For a collection of essays on the subject of blasphemy, see Jeroen Temperman and András Koltay, Blasphemy and Freedom of Expression:

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Reservations A number of countries entered reservations to Article 20(1). Luxembourg considered that Article 20(1) posed too great a danger to freedom of expression;48 the Netherlands found it extremely difficult to formulate a statutory ban on war propaganda in such a way that it did not constitute an undue restraint on freedom of expression;49 and Finland had difficulty reaching an appropriate criminal code provision.50 The Committee consistently challenges such reservations, including by pointing to the manifest inconsistency of a ban in Iceland on advertising alcohol and tobacco without a similar ban on war propaganda or advertisements for the recruitment of mercenaries.51 The Committee has sought to convince countries that there is no justification for Article 20(2) reservations on the basis of incompatibility with other freedoms.52 General Comment 34 emphasises consistency between Article 20(2) and Article 19(3) in particular: The acts that are addressed in Article 20 are all subject to restriction pursuant to Article 19, paragraph 3. As such, a limitation that is justified on the basis of Article 20 must also comply with Article 19, paragraph 3 . . . What distinguishes the acts addressed in Article 20 from other acts that may be subject to restriction under Article 19, paragraph 3, is that for the acts addressed in Article 20, the Covenant indicates a specific response required from the State: their prohibition by law. It is only to this extent that Article 20 may be considered as lex specialis with regard to Article 19 . . . It is only with regard to the specific forms of expression indicated in Article 20 that States parties are obliged to have legal prohibitions. In every instance in which the State restricts freedom of expression it is necessary to justify the prohibitions and their provisions in strict conformity with Article 19.53

C O N C L US I O N Article 20 is unusual in mandating protection of rights and freedoms of others, primarily though not exclusively from private sources.

48 50 52 53

Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge University Press, 2017). For a European perspective on Charlie Hebdo, see Erica Howard, Freedom of Expression and Religious Hate Speech in Europe (Routledge, 2017). Luxembourg A/41/40 (1986) 93. 49 Netherlands A/44/40 (1989) 220. Finland A/41/40 (1986) 217. 51 Iceland A/38/40 (1983) 115. E.g., Denmark A/33/40 (1978) 108; Norway A/33/40 (1978) 242; Australia A/38/40 (1983) 152, 173; Sweden A/41/40 (1986) 154; Australia A/43/40 (1988) 417, 425; Denmark A/43/40 (1988) 185, 187; Netherlands A/44/40 (1989) 219, 220. GC 34 [50] [52] (footnotes omitted).

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Only by being narrow in its remit is Article 20 able to achieve consistency with related Covenant provisions, the most notable being Article 19. It is only with regard to the specific forms of expression stated in Article 20 that States are obliged to have legal prohibitions. A number of key principles developed in Article 19 jurisprudence (and summarised in Rabbae et al. v. Netherlands) limit the operation of Article 20.

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Article 21: Freedom of Assembly

INTRODUCTION THE RIGHT OF PEACEFUL ASSEMBLY LIMITATION PROVISIONS IMPLEMENTATION CONCLUSION

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Covenant Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Comparable Provisions in Other International Instruments European Convention: Article 11. American Convention on Human Rights: Article 15. African Charter on Human and Peoples’ Rights: Article 11.

INTRODUCTION The right of peaceful assembly is ‘a fundamental human right, which is essential for public expression of one’s views and opinions and indispensable in a democratic society’.1 It is a distinct form of freedom of expression. As Humphrey put it, ‘[t]here would hardly be freedom of assembly in any real sense without freedom of expression; assembly is indeed a form of expression’.2 Similarly, to the Committee ‘the right of peaceful assembly . . . is a fundamental human right, being essential for public expression of one’s views and opinions and indispensable in a democratic society’.3

1 E.g., Sekerko v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013 [9.3]; Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.3]. 2 Humphrey, ‘Political and Related Rights’, vol. I, p. 171, at p. 188. 3 Of many cases articulating the same principle, see Alekseev v. Russian Federation, CCPR/C/109/ D/1873/2009, 25 October 2013 [9.3]; Lozenko v. Belarus, CCPR/C/112/D/1929/2010, 24 October 2014 [7.4]; Poplavny v. Belarus, CCPR/C/115/D/2019/2010, 5 November 2015 [8.4]; Androsenko v. Belarus, CCPR/C/116/D/2092/2011, 30 March 2016 [7.4].

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The concept of ‘a democratic society’ within the limitation conditions of Article 21 strikes at the heart of this particular freedom. That phrase has importance to Articles 14(1), 21 and 22(2), where it also features, as well as Articles 18 and 19, where it does not. The drafting history of Article 21 is particularly revealing, as it discloses a battle for limitation provisions which express particular characteristics of a democratic society, including to rule out abuse of the type that would have been admitted through text advanced by former Soviet States. Freedom of assembly has assumed particular importance recently with the sharp rise in OP1 petitions as a result of laws in Belarus which condition the grant of permission for public assemblies on unreasonable terms, including payment of cleaning and medical services associated with events, confining assemblies to locations where they will be out of public sight (to defeat their purpose as demonstrations), content-based restrictions aimed at suppressing the message intending to be conveyed, limits on the size of assemblies and other measures to prevent spontaneous meetings. The Committee’s response has been to give priority to the State’s obligation to facilitate rights, rather than to impose unnecessary or disproportionate limitations on them, to require proof of the strict necessity of restrictions, including resort only to the least restrictive means available, and it has also reiterated some fundamental principles concerning the expectations of a democratic society.4 There is no General Comment on Articles 21 or 22, although there have been recent calls for one.5 Given the close proximity of the right to peaceful assembly to the freedom of expression, General Comment 34 may be taken to reflect the Committee’s general approach to the right of peaceful assembly. Interaction between Article 21 and Other Covenant Provisions There is inevitably close alignment between Articles 18, 19, 21 and 22 as expressive freedoms with a high degree of commonality, including with regard to their importance as fundamental rights and, correspondingly, the need for strictness in interpreting their limitation provisions. In many countries the official response to unwelcome demonstrations and other public gatherings is to resort to force to dispel them, and to deter participation. The exercise of the right to peaceful assembly all too often poses serious risks to 4 The nature of restrictions on assembly diverges across countries. For comparative analyses of freedom of assembly in the United States, United Kingdom, France and Germany, see Orsolya Salát, The Right to Freedom of Assembly: a Comparative Study (Bloomsbury, 2015); and in the United States, United Kingdom, France, Germany, Belgium, Turkey, the Russian Federation, Ukraine, Poland, Hungary and Tunisia, see Anne Peters and Isabelle Ley, The Freedom of Peaceful Assembly in Europe (Nomos, 2016). 5 A/HRC/32/36 (2016) [93], Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.

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personal security (Article 9(1))6 or results in loss of life (Article 6).7 The liberty limb of Article 9 is constantly infringed in the arbitrary arrest or detention of those exercising their freedom of assembly.8 Crowd control frequently involves localised restrictions on freedom of movement (Article 12), but less common are Article 12 restrictions on freedom to travel in consequence of protesting, which reportedly occurred in Thailand after the 2014 coup.9 Article 14 may be violated in mass charges brought against demonstrators regardless of their individual criminal responsibility.10 Articles 2 and 26 will also be at issue when the refusal of authorisation for a public assembly represents discrimination on grounds of political opinion;11 race;12 sexuality;13 or other status, such as when peaceful assembly by migrant workers engaging in trade union activities triggers the loss of their employment or their deportation.14 Article 25 rights are immediately and directly affected by restrictions on freedom of assembly (and other forms of expression) since citizens depend on them in the conduct of public affairs and when pursuing other democratic rights. Chapter Outline This chapter will follow the simple order of Article 21, when examining the scope of the right of peaceful assembly and terms of limitation, paying special regard to 6 See chapter on Article 9: Liberty and Security, sections ‘Scope’, ‘Interaction between Article 9 and Other Covenant Provisions’ and ‘Article 9(1): The Right to Personal Security’. 7 See chapter on Article 6: The Right to Life, section ‘Excessive Use of Force’. 8 E.g., M.T. v. Uzbekistan, CCPR/C/114/D/2234/2013, 23 July 2015 [7.7] [7.8]; Popova v. Russian Federation, CCPR/C/122/D/2217/2012, 6 April 2018 [7.2], [7.6]; Zhagiparov v. Kazakhstan, CCPR/C/124/D/2441/2014, 25 October 2018 [13.5] [13.6]; Jordan CCPR/C/ JOR/CO/5 (2017) 32 (concern that participants and organisers of demonstrations have been detained); Thailand CCPR/C/THA/CO/2 (2017) 25 (reports of the arbitrary detention of hun dreds of individuals exercising their right to assembly). 9 Thailand CCPR/C/THA/CO/2 (2017) 25. 10 Burkina Faso CCPR/C/BFA/CO/1 (2016) 37 (every member of a group may be held criminally responsible for certain offences during demonstrations regardless of whether the perpetrator of the offence had been identified or not). See also Russian Federation CCPR/C/RUS/CO/7) (2015) 7 (collective punishment of relatives and suspected supporters of alleged terrorists). 11 E.g., Gambia CCPR CCPR/CO/75/GMB (2002) 22 (denial of authorisation to hold meetings targeted political opposition to the government); Congo CCPR/C/COD/CO/4 (2017) 41 (autho rities could impose a prior authorisation requirement which was systematically denied for demonstrations in support of the political opposition, but granted for demonstrations in support of the government); Madagascar CCPR/C/MDG/CO/4 (2017) 51 (political opponents were systematically denied the right to public protest, even when exercised peacefully); Belarus CCPR/C/BLR/CO/5 (2018) 52 (restrictions on assemblies were used to deny the political opposition the ability to meaningfully participate in public life and to influence public opinion). 12 E.g., Sri Lanka CCPR/C/LKA/CO/5 (2014) 22 (disproportional and discriminatory restrictions on freedom of peaceful assembly against the Tamil minority). 13 E.g., Ukraine CCPR/C/UKR/CO/7 (2013) 10; Georgia CCPR/C/GEO/CO/4 (2014) 8; Azerbaijan CCPR/C/AZE/CO/4 (2016) 8. 14 Dominican Republic CCPR/C/DOM/CO/6 (2017) 31.

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the term ‘in a democratic society’ and the purpose it served for the drafters. Issues of implementation will be raised as the chapter progresses and in a separate section at the end.

T H E R IG H T OF P E A C E F U L A SS E MB LY The right to peaceful assembly is not declared in terms of ‘Everyone/Every human being shall have/has the right to’ (as in Articles 1(1), 6(1), 9(1), 12(1), 16, 17(2), 18(1), 19(1) and 22(1)). Instead, the right of peaceful assembly ‘shall be recognized’. (The only other Covenant provision in similar terms is Article 23(2) concerning the right of men and women of marriageable age to marry and found a family.) It is in contrast to counterpart provisions in Article 20 of the Universal Declaration and Article 11 of the European Convention, both of which declare that ‘Everyone has the right to’ freedom of peaceful assembly. Partsch considers that the legal obligation is nevertheless the same as for other rights.15 During its early drafting a British proposal led to a transition from ‘There shall be freedom of peaceful assembly’ to ‘All persons shall have the right to assemble peaceably’. This survived the working group discussion and the second session of the drafting Committee.16 In the Commission on Human Rights a proposal that this right ‘shall be guaranteed by law’ was rejected on the grounds that the general provision of Article 2 laid down the necessary guarantees for all rights.17 The formula in Article 20 of the Universal Declaration was advanced (‘Everyone shall have the right to freedom of peaceful assembly’) to make it clear that the right belongs to every person.18 The French proposal that the right be ‘recognised’ as a fundamental human right was accepted (‘The right of assembly is recognised’),19 and was adjusted by an oral amendment by the United States to become ‘shall be’.20 There was agreement in the Third Committee on the fundamental importance of the right,21 and commentators have observed that the exhaustive listing of limitations in Article 21 demonstrates that the obligation to recognise this right does not signify a weak obligation or only indirect applicability.22 In spite of an early suggestion by France that the right should be

15 Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, p. 209, at p. 231. 16 E/CN.4/21 (1947), annex A (Secretariat draft) and annex B (GB proposal); E/CN.4/56 (1947), E/ CN.4/AC.3/SR.6, 10 (1947) (report of the working group); E/CN.4/95 (1948) and E/800 (1948) (report of the drafting committee). For further detail, see Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 413 20. 17 A/2929 (1955), Ch.VI. p. 54 [140]. 18 A/2929 (1955), Ch.VI. p. 54 [140]. 19 E/CN.4/169 (1949) [46] (France). 20 E/CN.4/365 (1950) (France), E/CN.4/SR.169 (1950) [83]; E/CN.4/SR.325, 19 (1952). 21 A/5000 (1961), p. 17 [53]. 22 Nowak, CCPR Commentary, pp. 483 4. See also Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, at pp. 231 2.

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protected only against ‘governmental interference’, this was not accepted,23 preserving a broader obligation to secure the right against horizontal interference. On its face Article 21 covers only ‘peaceful’ assembly. It spans the right to conduct an assembly, as well as the right to participate in one.24 It is directed at a collective enjoyment (so that an individual soap-box expositor in Coleman v. Australia did not constitute an assembly even though he may have attracted onlookers).25 The term ‘assembly’ is not defined, but Nowak suggests it may be taken to refer to ‘intentional, temporary gatherings of several persons for a specific purpose’.26 It includes a private assembly,27 but excludes a more or less accidental gathering such as people waiting for a bus, or listening to a band.28 The right entails the possibility of organising and participating in a peaceful assembly, including a spontaneous one, at a public location.29 The organisers of an assembly generally have the right to choose a location within sight and sound of their target audience. The relationship between Articles 19 and 21 is ‘intimate and somewhat complex’, according to comments made by Committee member Kurt Herndl in Kivenmaa v. Finland, when the Committee discussed whether removing a banner from a protester during a demonstration was an interference under Article 19 or 21. He did not take issue with the Committee’s finding that Article 21 was violated by sanctions imposed for failure to notify authorities of the demonstration, but he disagreed with what he described as the oversimplified statement of the majority, that just by removing the displayed banner, the government violated the author’s 23 E/CN.4/SR.121 (1949), 3 (France). 24 Nowak, CCPR Commentary, p. 483. 25 Coleman v. Australia, CCPR/C/87/D/1157/2003, 17 July 2006 [6.4] (inadmissible since the author was acting alone, and did not advance sufficient elements to show that an ‘assembly’, within Art. 21 in fact existed). Note also Stambrovsky v. Belarus, CCPR/C/112/D/1987/2010, 24 October 2014 [7.6] (the Committee addressed the refusal of permission to hold a one person picket only under Art. 19); Sviridov v. Kazakhstan, CCPR/C/120/D/2158/2012, 13 July 2017 [10.4] (restrictions on expression by a single individual were answered only under Art. 19, with the observation that the act of a single individual peacefully conveying a message should not be subject to the same restrictions as those applying to an assembly); Levinov v. Belarus, CCPR/C/ 123/D/2239/2013, 19 July 2018 [5.7] (inadmissible as the author intended to conduct the picket on his own). For an Art. 21 violation in restrictions on a ‘picket’ conducted by a single person, see Sudalenko v. Belarus, CCPR/C/115/D/2016/2010, 5 November 2015 [8.6]; and by two persons Kim v. Uzbekistan, CCPR/C/122/D/2175/2012, 4 April 2018 [13.6]. 26 Nowak, CCPR Commentary, p. 484. 27 Lozenko v. Belarus, CCPR/C/112/D/1929/2010, 24 October 2014 [7.8] (the State failed to justify why authorisation was needed for holding a meeting in a private space rented by the political party). See also Morocco CCPR/C/79/Add.113 (1999) 24 (the requirement of notification should be restricted to outdoor assemblies). 28 Individual Opinion by Mr Kurt Herndl (dissenting) in Kivenmaa v. Finland, CCPR/C/50/D/412/ 1990, 31 March 1994 [2.7]. The majority commented (at [9.2]) that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance, could not be regarded as a demonstration. See also Aleksandrov v. Belarus, CCPR/C/111/D/1933/2010, 24 July 2014 [7.4] (sanctions for moving along the pavement with two others carrying red and white inidicia were addressed only under Art. 19). 29 Sannikov v. Belarus, CCPR/C/122/D/2212/2012, 6 April 2018 [6.12].

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right to freedom of expression. In the context of a demonstration involving leaflet distribution and other activities clearly falling under Article 21 he considered it fell within the lex specialis of Article 21, thereby excluding the need for separate consideration under Article 21.30 In some decisions the Committee has dispensed with any Article 21 examination having found a violation of Article 19.31 On occasion it is clear that it has done so because of the way the claims were framed in Article 19 terms.32 It approaches certain activities, such as the distribution of leaflets or other forms of advertising of a future assembly, as a matter of freedom of expression rather than of assembly, and there is a clear basis for doing so.33 In the multiplicity of recent claims against Belarus concerning unauthorised events the practice has generally been to make separately reasoned findings of violation of Articles 19 and 21.34

LI MI TATI ON P R OVI S IO NS In Conformity with the Law Early drafts of the limitation text provided that all restrictions on the freedom of peaceful assembly should be ‘prescribed by law’.35 The words ‘imposed in conformity with the law’ were preferred as they allow for legitimate administrative action as a unique practical response to the exigencies of public assemblies,36 even though there was some concern at inconsistency with other Covenant provisions.37 Article 21 is alone among all Covenant rights in requiring

30 Individual Opinion by Mr Kurt Herndl (dissenting) in Kivenmaa v. Finland, CCPR/C/50/D/412/ 1990, 31 March 1994 [3.5]. The distribution of leaflets on its own was an Art. 19, not 21, matter in Symonik v. Belarus, CCPR/C/112/D/1952/2010, 24 October 2014 [7.3]. 31 Pivonos v. Belarus, CCPR/C/106/D/1830/2008, 29 October 2012 [9.4] (apprehension and fine for unrolling a tapestry with an embroidered prayer from the Bible while two others with her wore white and red flags on top of their clothes). 32 Valery Aleksandrov v. Belarus, CCPR/C/111/D/1933/2010, 24 July 2014 [7.2]; Stambrovsky v. Belarus, CCPR/C/112/D/1987/2010, 24 October 2014 [3], [7.4]. 33 Tulzhenkova v. Belarus, CCPR/C/103/D/1838/2008, 26 October 2011 [9.3]; Vladimir Schumilin v. Belarus, CCPR/C/105/D/1784/2008, 23 July 2012 [9.4]; Olechkevitch v. Belarus, CCPR/C/ 107/D/1785/2008, 18 March 2013 [8.5]; Protsko and Tolchin v. Belarus, CCPR/C/109/ D/1919 1920/2009, 1 November 2013 [7.8]; Nepomnyaschikh v. Belarus, CCPR/C/112/D/ 2156/2012, 10 October 2014 [9.4]; Symonik v. Belarus, CCPR/C/112/D/1952/2010, 24 October 2014 [7.4]. 34 In Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [9.5] [9.8]; Evrezov et al. v. Belarus, CCPR/C/112/D/1999/2010, 10 October 2014 [8.3] [8.8] and Derzhavtsev v. Belarus, CCPR/C/115/D/2076/2011, 29 October 2015 [8.7] (among others) the reasoning was separate under Arts 19 and 21, but not distinctive beyond lightly traversing the limitation texts. For further illustration, see section ‘Necessary’, this chapter, below. 35 A/2929 (1955), Ch.VI. p. 54 [141]; E/CN.4/SR.169 (1950) [26] (Lebanon). 36 E/CN.4/SR.169 (1950) [37] (GB), [79] (Belgium). See also Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, at pp. 232 3. 37 E/CN.4/SR.169 (1950) [81] (Lebanon).

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‘conformity with the law’ (rather than ‘provided by law’ found in Articles 12(3) and 19(3), or ‘prescribed by law’ in Article 18(3) and 22(2)). Necessary in a Democratic Society

In a Democratic Society Under the European Convention each of the provisions guaranteeing the freedoms of religion, expression, assembly and association requires restrictions to be ‘necessary in a democratic society’. The inclusion of the term implies a stricter standard of necessity since, as the European Court explained, ‘[t]he only type of necessity capable of justifying an interference with any of those rights [under Articles 8, 9, 10 and 11 of the European Convention] is . . . one which may claim to spring from “democratic society”. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.’38 Under the Covenant, the qualification ‘in a democratic society’ applies to restrictions on the freedoms of assembly and association, but not on the freedoms of religion and expression. This begs the question, with what significance? Ostensibly ‘in the interest of democracy’ the Soviet Union proposed a single limitation provision: ‘All societies, unions and other organizations of a Fascist or anti-democratic nature and their activity in whatever form shall be forbidden by law on pain of punishment’.39 Its supporters (from fellow Soviet States) argued that if the right of peaceful assembly were exercised by anti-democratic groups, all the rights recognised in the Covenants might be jeopardised.40 It was resolutely resisted. As a matter of principle, to deny certain groups freedom of assembly merely on account of their opinions would be contrary to the principles of freedom of opinion and expression.41 (Content-based restrictions remain among the most unjustifiable in the view of the Committee.)42 It was also observed that terms such as ‘fascist’ and ‘anti-democratic’ were not clearly defined and could lead to abuse.43 If the activities of any group became a public danger the laws for the protection of ‘public order’, ‘national security’ or ‘the rights and freedoms of others’ could be applied.44 This exchange brings into focus the importance of democratic values within the Covenant as a whole, and the risks of misappropriation of the concept of ‘democracy’ to serve the interests of those with wielding 38 United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/752/951, Reports of Judgments and Decisions 1998 I, (30 January 1998) [45]. 39 E/CN4/222 (1949) (Soviet Union), E/CN4.SR.120, p. 11 (1949); E/CN4./L.126 (1953) (Soviet Union), E/CN4.SR.325, p. 19 (1953); A/C.3/SR.289 (1950) [37] (Soviet Union); A/C.3/SR.290 (1950) [5] (Poland), [12] (Czechoslovakia). 40 E/CN4.325 (1953), p. 7 (Poland). 41 E/CN4.SR.325 (1953), p. 9 (Uruguay). 42 See section ‘Necessary’, below. 43 E/CN4.SR.120 (1949), p. 9 (India); E/CN4.SR.325 (1953), p. 6 (France), p. 11 (Lebanon), p. 12 (Pakistan), p. 13 (Chile), p. 15 (Sweden). 44 E/CN4.SR.325 (1953), p. 5 (GB), p. 8 (Chile).

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power. The freedoms of assembly and association were ultimately separated to reinforce both of them and to emphasise their independent character, as well as to assure these rights to those who did not agree with the party in power.45 When it came to discussion on the text ‘in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others’ proposals were made, which were rejected, to replace ‘public order’ with ‘prevention of disorder’,46 and to include an additional ground ‘in the general interest’.47 In order to prevent abuse of the limitation grounds a proposal was made to add the prefatory words ‘reasonable and’ which was not adopted.48 Another proposal, which was adopted into the final text, was that all the limitations be qualified by the words ‘necessary in a democratic society’, on the basis that the freedom could not be effectively protected if States did not apply the limitations clause according to the principles recognised in a democratic society.49 To the objection that ‘democracy’ would be interpreted differently in different countries50 (no doubt inspired in part by the proposal by the Soviet Union already mentioned), the reply was given that a democratic society might be distinguished by its respect for the principles of the Charter of the United Nations, the Universal Declaration and the twin Covenants.51 Kiss argues that the notion of a democratic society is operative in limitation provisions even where it is not expressly included in the text: The different concepts which may serve as grounds for restricting certain recognized rights and freedoms should be generally examined in a broader political concept, that of a model society. It may be submitted that even in the limitation clauses where no explicit mention is made of a democratic framework, the idea of democracy is always underlying, signifying that ‘every ‘formality’, ‘condition’, ‘restriction’, or ‘penalty’, imposed in this sphere must be proportionate to the legitimate aim pursued.52

He drew a close parallel with the European Convention at this point, since he was quoting at the end from the European Court’s famous Handyside decision, in 45 Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, at p. 231. In the European Convention the freedoms of assembly and association are combined in Art. 11, following the pattern of Art. 20 of the Universal Declaration. 46 A/2929 (1955), Ch.VI. p. 54 [143]; Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 417 18; A/C.3/SR.290 (1950) [46] (NZ). 47 E/CN.4/SR.120 (1949), 6 (GB), 7 (USA), 8 (India); A/C.3/SR. 289 (1950) [5] (Lebanon). 48 E/CN.4/SR.325 (1953), 11 (Lebanon), 14 (Egypt), A/C.3/SR.288 (1950) [17] [18] (GB); A/C. 3/ SR.289 (1950) [6] (Lebanon). 49 E/CN.4/SR.169 (1950) [49] (Yugoslavia), [52] (Chile), A/C.3/SR.290 (1950) [29] (France), A/ C.3/SR.291 (1950) [55] (Byelorussia), [61] (El Salvador). 50 E/CN.4/SR.169 (1950) [28] (Lebanon), [36] (GB), [41] (Australia), [70] [71] (Uruguay), E/ CN.4/SR.325 (1952), 15 (USA). 51 Adopted with the words ‘necessary in a democratic society’: E/CN.4/SR.169 (1950) [54] (Chile), [63] [64] (France). 52 Kiss, ‘Permissible Limitations on Rights’, p. 290, at p. 307.

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which it described some of the characteristics of a democratic society in the context of freedom of expression: The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a ‘democratic society’. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.53

Nowak agreed that as a general standard for democratic societies the criteria of pluralism, tolerance and broad mindedness mentioned in Handyside may be valid, although he suggested that a common minimum democratic standard may be lower in a universal international instrument than a regional one such as the European Convention.54 Kiss concluded that in addition to applying a restrictive interpretation to limitations, and requiring adequate legal justification, limitations must also be acceptable in the specific political context that has been defined as a ‘democratic society’. This ‘recognizes the principle that government is limited by the concept of human rights, and that even the good of the majority or the common good of all does not permit certain invasions of individual autonomy and freedom’.55 An essential characteristic of a democratic society is pluralism. In October 2010, the UN Human Rights Council established the mandate of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.56 In pursuing that mandate, the Special Rapporteur has placed special emphasis on pluralism, noting that the rights to freedom of peaceful assembly and of association are fundamental precisely because of their crucial role in promoting pluralism: they provide a platform for all people in any society to mobilise, organise and work towards change in a peaceful manner.57 Adopting the principle (also from Handyside) that ‘there can be no democracy without pluralism’,58 the Special Rapporteur has also emphasised that values of pluralism, tolerance and broadmindedness are at the core of any successful and stable democratic State.59 He has therefore encouraged States and civil society groups

53 54 55 57 58 59

Handyside v. United Kingdom, App. No. 5493/72, [1976] ECHR 5 (7 December 1976), [49]. Nowak, CCPR Commentary, p. 491. Kiss, ‘Permissible Limitations on Rights’, pp. 308 9. 56 A/HRC/RES/15/21, 6 October 2010. A/HRC/ 32/36 (2016) [17]. Handyside v. United Kingdom, App. No. 5493/72, [1976] ECHR 5 (7 December 1976) [49]. A/HRC/32/36 (2016) [17].

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to create and expand initiatives to educate people, particularly youth, on the importance of pluralism, tolerance and diversity in democratic societies.60

Necessary When States rely on a ground of limitation they must prove the necessity of the restriction, in the particular circumstances. A straightforward example of the Committee’s position is Kovalenko v. Belarus which concerned the break-up of a commemoration to honour the victims of Stalinist repression, the author’s removal from the gathering and the imposition of a fine. It criticised the State for not identifying in its justification of those measures what dangers were posed by the author publicly expressing a negative attitude to the Stalinist repressions in Soviet Russia.61 In a large number of cases, the overwhelming majority of them against Belarus, the State has simply addressed the legality requirement, and its case has often been as simple as stating a breach of relevant domestic provisions, without any attempt to justify the necessity of restrictions.62 It is not always easy to discern the limitation ground pleaded.63 In many instances the Committee has stressed (when reiterating the principle that the right of peaceful assembly is indispensable in a democratic society) that when imposing restrictions with the aim of reconciling an individual’s right and interests of general concern, the State should be guided by the objective of facilitating that right, rather than seeking unnecessary or disproportionate limitations to it.64 In the case of notice requirements for an assembly, which led to numerous such claims, the incompatibility

60 A/HRC/32/36 (2016) [94]. For a summary of the travaux in reference to Art. 21, see Svensson McCarthy, The International Law of Human Rights and States of Exception, pp. 103 4. 61 Kovalenko v. Belarus, CCPR/C/108/D/1808/2008, 17 July 2013 [8.6]. See also on similar facts Belyazeka v. Belarus, CCPR/C/104/D/1772/2008, 23 March 2012 [11.8]. 62 E.g., Zalesskaya v. Belarus, CCPR/C/101/D/1604/2007, 28 March 2011 [10.6]; Govsha et al. v. Belarus, CCPR/C/105/D/1790/2008, 27 July 2012 [9.4]; Tulzhenkova v. Belarus, CCPR/C/ 103/D/1838/2008, 26 October 2011 [9.3]; Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/ 2010, 24 July 2014 [9.8]; Evrezov et al. v. Belarus, CCPR/C/112/D/1999/2010, 10 October 2014 [8.8]; Praded v. Belarus, CCPR/C/112/D/2029/2011, 10 October 2014 [7.8];Lozenko v. Belarus, CCPR/C/112/D/1929/2010, 24 October 2014 [7.7]. 63 E.g., Chebotareva v. Russian Federation, CCPR/C/104/D/1866/2009, 26 March 2012 [9.3] (the pretext for the refusing of an assembly was that the city authorities were planning to hold events dedicated to Teachers’ Day on the same day, at the same place (which never eventuated)); Youbko v. Belarus, CCPR/C/110/D/1903/2009, 17 March 2014 [9.6] [9.8] (a protest meeting involving posters drawing public attention to the need for the judiciary to respect international treaties was characterised as an attempt to question court decisions and influence rulings in specific civil and criminal cases). 64 E.g., Turchenyak et al. v. Belarus, CCPR/C/108/D/1948/2010, 24 July 2013 [7. 4]; Sekerko v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013 [9.6]; Evzrezov v. Belarus, CCPR/C/ 117/D/2101/2011, 14 July 2016 [8.4]; Korol v. Belarus, CCPR/C/117/D/2089/2011, 14 July 2016 [7.5]; Melnikov v. Belarus, CCPR/C/120/D/2147/2012, 14 July 2017 [8.5]; Shumilina et al. v. Belarus, CCPR/C/120/D/2142/2012, 28 July 2017 [6.4]; Koreshkov v. Belarus, CCPR/C/121/ D/2168/2012, 9 November 2017 [8.5].

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with Article 21 may also lie in the principle that ‘their enforcement cannot become an end in itself’.65 It is particularly difficult, within the conception of a democratic society already discussed, to make out the necessity of restrictions on freedom of assembly based on content. The claim in Kirsanov v. Belarus resulted from the refusal to authorise a demonstration marking negative official policy towards opposition political parties and grass-roots movements, and protesting against an attempt by authorities to dismantle the Belarus Communist Party. The State argued that since no decision had been taken to ban political parties the author’s demonstration conflicted with the right of citizens to receive reliable information, as protected under domestic law. The Committee recalled that the rejection of a person’s right to organise a public assembly on the basis of its content is one of the most serious interferences with the freedom of peaceful assembly. The State did not demonstrate how any supposed public need to receive reliable information was necessary in a democratic society, of which the cornerstone is free dissemination of information and ideas, including information and ideas contested by the government or the majority of the population. It also failed to show that a legitimate purpose under Article 21 could only be achieved by the denial of the proposed demonstration.66 Another clear case of content-based restriction was in Alekseev v. Russian Federation, discussed below.67 The development of strict standards of necessity by the Committee will be apparent in the sections which follow. Grounds of Limitation

National Security or Public Safety Kiss explained as follows how he regarded ‘national security’ as quite distinct from ‘public safety’ and ‘public order’, even though often linked to them: ‘national’ denotes something affecting the country as a whole (not something in the sole interest of a government or power group); ‘security’ may be informed by the use of that term in the UN Charter (dedicated to maintaining ‘international peace and security’); and national security means the protection of territorial 65 Severinets v. Belarus, CCPR/C/123/D/2230/2012, 19 July 2018 [8.8] [8.10]. 66 Kirsanov v. Belarus, CCPR/C/110/D/1864/2009, 20 March 2014 [9.7] [9.8], citing Korneenko v. Belarus, CCPR/C/88/D/1274/2004, 31 October 2006 [7.3]: ‘The reference to the notion of “democratic society” in the context of Article 22 indicates, in the Committee’s opinion, that the existence and operation of associations, including those which peacefully promote ideas not necessarily favourably received by the government or the majority of the population, is a cornerstone of a democratic society.’ 67 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013; see section ‘Rights and Freedoms of Others’, this chapter, below. For the response of the European Court to restrictions on freedom of assembly on the basis of the authority’s own view of the merits of the particular protest, see Hyde Park and Others v. Moldova No. 3, App. No 45095/06, ECHR 31 March 2009 [26].

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integrity and political independence against foreign force or threats of force.68 Article 21 speaks of ‘national security or public safety’ in conjunction, while maintaining them as discrete concepts. When reviewing State reports, the Committee has been particularly concerned about dependence on broadly worded offences such as sabotage and terrorism,69 and at reports that applications for permission to hold public assemblies are declined on spurious grounds of ‘national principles’ or ‘public decency’.70 One of its recurring concerns is the use of excessive force at demonstrations in response to crowd violence or to disperse demonstrations,71 which in acute cases results in death.72 It has pointed to instances of incompatibility with the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials.73 A civilian, rather than military, response should be adopted to the maximum extent possible.74 As a practical matter the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has encouraged States to move away from a ‘hard security’ approach to restrictions on freedom of assembly, and to focus instead on human rights and on ‘promoting resilience’ in communities, so that people ‘feel they have space to freely express themselves and fully participate in political life and public affairs’.75

Public Order The term ‘public order’ does not lend itself to precision, which has prompted the Committee at times to test its limits in considering the laws of particular jurisdictions.76 There is obvious overlap between public order and public safety in such matters as traffic control and the timing of assemblies, with a particular Committee preference that they be held in daylight. Nevertheless, it has 68 Kiss, ‘Permissible Limitations on Rights’, pp. 296 7. 69 E.g., Ecuador CCPR/C/ECU/CO/6 (2016) 27; Bahrain CCPR/C/BHR/CO/1 (2018) 29. 70 E.g., Algeria CCPR/C/DZA/CO/4 (2018) 45. For excessive reliance on public order and national security grounds, see Kazakhstan CCPR/C/KAZ/CO/1 (2011) 26. 71 E.g., Kenya CCPR/CO/83/KEN (2005) 23; Moldova CCPR/C/MDA/CO/2 (2009) 8; Mozambique CCPR/C/MOZ/CO/1 (2013) 22; Russian Federation (CCPR/C/RUS/CO/7) (2015) 21; Uzbekistan CCPR/C/UZB/CO/4 (2015) 24; Ecuador CCPR/C/ECU/CO/6 (2016) 27; Kuwait CCPR/C/KWT/CO/3 (2016) 42; Morocco CCPR/C/MAR/CO/6 (2016) 45; Bahrain CCPR/C/BHR/CO/1 (2018), 35, 55; Belarus CCPR/C/BLR/CO/5 (2018) 51. 72 E.g., Colombia CCPR/C/COL/CO/7 (2016) 36; Cameroon CCPR/C/CMR/CO/5 (2017) 41; Congo CCPR/C/COD/CO/4 (2017) 43; Sudan CCPR/C/SDN/CO/5 (2018) 47. 73 E.g., HK SAR CCPR/C/CHN HKG/CO/3 (2013) 11, citing Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August 7 September 1990. 74 E.g., Venezuela CCPR/C/VEN/CO/4 (2015) 14(f). 75 A/HRC/32/36 (2016) [88]. 76 Spain A/34/40 (1979) 201 (several members pointed out under the Constitution meetings could be banned in the interests of ‘public order’, an expression which could be interpreted in different ways, and asked for clarification in that respect).

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commented that the prohibition of all assemblies on major roads in the capital in Korea appeared to be over-broad and did not meet standards required by the limitation provisions of Article 21,77 and it expressed concern about restrictions on demonstrations held past midnight.78 Notification requirements for public assemblies are typically based on public order considerations. The Committee found in Kivenmaa v. Finland that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the limitations in Article 21, but its adverse decision turned on the implausibility of characterising as a demonstration the mere presence of particular individuals displaying a banner in a crowd assembled to welcome a foreign head of State.79 A stricter form of restriction is a requirement that the assembly be authorised before it can proceed, made all the harsher for conditions which attach to authorisation. The relevant law on mass events applied against the authors for not seeking authorisation in Kuznetsov and Others v. Belarus required organisers to conclude contracts, at their own expense, for medical assistance and post-event cleaning, to assure the protection of public order. The authors claimed this limited the very essence of the freedoms guaranteed. The finding of violation of Article 21 followed the lack of any explanation why these requirements were necessary, or of the dangers that would have been created by the authors’ display of portraits of a disappeared former minister and expression of their concern in public about the delayed investigation of his disappearance.80 The Committee was faced with a similar burden on protesters in Sekerko v. Belarus whose event was refused authorisation because they did not produce proof that the relevant security and medical contracts had been concluded. The State claimed the requirement had the protective purpose of ensuring public order and public safety, yet it failed to specify ‘which required details related to the planning and conduct of the mass events might be missing, the absence of which would pose a threat to public safety, public order . . . the protection of public health or morals or the protection of the rights and freedoms of others’. It also failed to demonstrate that these purposes could be achieved only by denying authorisation to these particular events.81 In a number of countries, such as Kazakhstan and Belarus, the authorities designate particular areas for holding assemblies, typically in the outskirts of city centres where demonstrations will attract little public attention.82 The authors 77 Korea CCPR/C/79/Add.114 (1999) 18. 78 Korea CCPR/C/KOR/CO/4 (2015) 52. 79 Kivenmaa v. Finland, CCPR/C/50/D/412/1990, 31 March 1994 [9.2]. 80 Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010, 24 July 2014 [9.6] [9.8]. See also Switzerland CCPR/C/CHE/CO/4 (2017) 48 (concern about the charging of security costs incurred during demonstrations). 81 Sekerko v. Belarus, CCPR/C/109/D/1851/2008, 28 October 2013 [9.7]. See also Matskevich v. Belarus, CCPR/C/115/D/2133/2012, 29 October 2015 [9.5]. 82 E.g., Kazakhstan CCPR/C/KAZ/CO/1 (2011) 26.

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in Turchenyak et al. v. Belarus sought permission to hold a demonstration in a particular pedestrian zone, but it was granted only for the Lokomotiv stadium, an isolated location in a stadium surrounded by a concrete wall. The Committee found that denying their right to assemble peacefully at the public location of their choice was unjustified. The Committee also recommended a review of national legislation, with a view to ensuring the enjoyment of Article 21 rights.83 The general principle is that the organisers of an assembly generally have the right to choose a location within sight and sound of their target audience.84 In its Concluding Observations the Committee has identified recurring harms associated with both notification and permission requirements;85 it has expressed concern at the breadth of the requirement to notify assemblies, aware that it is often abused, and has suggested that it should be restricted to outdoor assemblies,86 that the period of advance notice not unduly circumscribe legitimate forms of assembly,87 that sufficient time be given between the official decision and the event, in order to enable recourse to remedies (24 hours being insufficient),88 without unduly lengthy appeal procedures which would jeopardise enjoyment of the right,89 without biased judicial fora for determining applications to ban peaceful assemblies,90 and with appropriate provision for other remedies in the event that authorisation is denied.91 It has also expressed concern at restrictions as to time, place and numbers of demonstrators.92

83 Turchenyak et al. v. Belarus, CCPR/C/108/D/1948/2010, 24 July 2013 [7.5] [7.8], [8], [9]. See also Sudalenko v. Belarus, CCPR/C/115/D/2016/2010, 5 November 2015 [8.6] (the de facto prohibition on an assembly in any public location in the entire city of Gomel, with the exception of a single remote area, unduly limited the right of assembly). 84 Poplavny et al. v. Belarus, CCPR/C/118/D/2139/2012, 3 November 2016 [8.5]; Koreshkov v. Belarus, CCPR/C/121/D/2168/2012, 9 November 2017 [8.5]; Sudalenko et al. v. Belarus, CCPR/C/122/D/2190/2012, 4 April 2018 [8.5]. 85 On the harms of notification and permission, see, e.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 38 (while legislation only required advance notification of a peaceful assembly, permission was frequently required in practice); Morocco CCPR/C/MAR/CO/6 (2016) 45 (prior authorisation required for gatherings in public places and was refused unjustifiably); Congo CCPR/C/COD/ CO/4 (2017) 41 (authorities could impose a prior authorisation requirement and it was system atically denied for some demonstrations); Swaziland CCPR/C/SWZ/CO/1 (2017) 44 (proposed amendments would impose cumbersome requirements for obtaining permits before holding a meeting or hosting an activity and give law enforcement officers discretionary powers to interrupt meetings); Thailand CCPR/C/THA/CO/2 (2017) 39 (criminal penalties for failing to provide prior notification regarding the organisation of peaceful assemblies); Algeria CCPR/C/ DZA/CO/4 (2018) 45 (prior authorisation by and at the discretion of the executive on the basis of vague criteria, such as national principles, public order or public decency; an excessively long advance notice of eight days; and criminal sanctions for not meeting these conditions); Gambia CCPR/C/GMB/CO/2 (2018) 41 (law required police permission for peaceful assembly). 86 Morocco CCPR/C/79/Add.113 (1999) 24. 87 Republic of Moldova CCPR/CO/75/MDA (2002) 15; Belarus CCPR/C/79/Add.86 (1997) 18; Cyprus CCPR/C/79/Add.88 (1998) 15; Uzbekistan CCPR/C/UZB/CO/4 (2015) 24. 88 Trinidad and Tobago A/43/40 (1988) 81. 89 Poland CCPR/C/POL/CO/6 (2010) 23. 90 Ukraine CCPR/C/UKR/CO/7 (2013) 21. 91 Kenya CCPR/CO/83/KEN (2005) 23. 92 Paraguay CCPR/C/PRY/CO/2 (2006) 20; Belarus CCPR/C/BLR/CO/5 (2018) 51.

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Rights and Freedoms of Others Where there is a risk of counter-demonstration, the rights and freedoms of others may be at issue (in combination with public safety and public order), and the Committee has established clear guidance on when the use of such grounds may be justified. The background to the petition in Alekseev v. Russian Federation was that the author had been trying to organise gay pride marches in Moscow for a number of years but his requests had been met with refusal. He proposed to hold a stationary protest in front of the Iranian Embassy in Moscow to express concern over the execution of gay people and minors in Iran. It would last for an hour with no more than thirty participants. Authorisation was refused on the same day because it would trigger ‘a negative reaction in society’ and could lead to ‘group violations of public order which can be dangerous to its participants’. After recalling that the right of peaceful assembly is essential for the public expression of a person’s views and opinions, and indispensable in a democratic society, the Committee added that States must put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression by means of an assembly. The only reason for refusing it was that the subject it addressed, namely, advocacy of respect for the human rights of persons belonging to sexual minorities, would provoke a negative reaction that could lead to violations of public order. The Committee characterised this as a rejection of the author’s right to organise a public assembly addressing the chosen subject, which is one of the most serious interferences with the freedom of peaceful assembly. Consonantly with European jurisprudence addressing similar situations it noted that freedom of assembly protects demonstrations promoting ideas that may be regarded as annoying or offensive by others and that, in such cases, States have a duty to protect the participants in such a demonstration in the exercise of their rights against violence by others.93 An unspecified and general risk of a violent counter-demonstration or the mere possibility that the authorities would be unable to prevent or neutralise such violence are not sufficient to justify banning a demonstration. The State provided no information to support its claim that a ‘negative reaction’ would involve violence or that the police would be unable to prevent such violence if they properly performed their duty. The obligation of the State was to protect the author in the exercise of Covenant rights and not to contribute to suppressing those rights.94 93 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.3], [9.6]. For similar factual background, see also Androsenko v. Belarus, CCPR/C/116/D/2092/2011, 30 March 2016 [7.7]. Note also the claim in M.T. v. Uzbekistan, CCPR/C/114/D/2234/2013, 23 July 2015 [7.7] that when the author was attacked while holding pickets the authorities failed adequately to investigate the women attacking her. Cf. European Court in Christian Democratic People’s Party v. Moldova (No. 2), App. No. 25196/04, ECHR, 2 February 2010 [28]. (The Court considers that even if there was a theoretical risk of violent clashes between the protesters and supporters of the Communist Party, it was the task of the police to stand between the two groups and to ensure public order. Refusing authorisation could not be considered relevant and sufficient within the meaning of Art. 11 of the European Convention.) 94 Alekseev v. Russian Federation, CCPR/C/109/D/1873/2009, 25 October 2013 [9.6]. On similar facts, see also Praded v. Belarus, CCPR/C/112/D/2029/2011, 10 October 2014.

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There is a right to demonstrate and to counter-demonstrate.95 Where the purpose of a counter-demonstration is to sabotage the peaceful assembly by opponents, in appropriate circumstances it may be assessed in the light of the interpretive text of Article 5(1) (‘activity aimed at the destruction of the rights and freedoms of others or at their limitation to a greater extent than is provided for in the Covenant’).96 However, Article 5 does not give rise to any separate individual right capable of generating OP1 claims, which explains in part why there is so little Committee comment on that provision.97

The Protection of Public Health or Morals Public health considerations arose obliquely and insupportably in Kuznetsov and Others v. Belarus and Sekerko v. Belarus in the requirement that organisers of public events had to conclude contracts, at their own expense, for medical assistance and post-event cleaning. Public health may also feature in a manner peculiar to Article 21 during times of epidemic or pandemic, when any large gathering is likely to exacerbate the spread of an infectious disease. (The European Court found no violation when the police broke up the mass occupation of a church by illegal immigrants when sanitary conditions deteriorated).98 ‘Morals’ on the whole is a weak ground of limitation. It may present a contentbased restriction on Kirsanov v. Belarus and Alekseev v. Russian Federation reasoning.

I M P L E M E N TAT I O N The Committee’s expectation is that freedom of assembly will be effectually guaranteed domestically, including to aliens,99 by legislative and other measures, including where necessary revising laws and practices to guarantee the full enjoyment of the right

95 For the European Court’s treatment of restrictions on a meeting to commemorate Salzburg Jews killed by the SS during the Second World War, as a counter demonstration against the simulta neous gathering of Comradeship IV commemorating the SS soldiers killed in the Second World War, see Öllinger (Karl) v. Austria, App. No. 76900/01, [2006] ECHR, 29 June 2006 [36] [37]. 96 In this context note that the Committee has questioned Portugal about provisions establishing that counter demonstrations would be liable to penalties (Portugal A/36/40 (1981) 311). Note also Indonesia CCPR/C/IDN/CO/1 (2013) 28 and the reference to the duty to protect protesters from harassment, intimidation and violence. 97 Levinov v. Belarus, CCPR/C/123/D/2235 & 6/2013, 19 July 2018 [5.5]. 98 Cisse v. France, App. No. 51346/99, 9 April 2002 (200 illegal immigrants occupied a church to draw attention to their plight. Ten went on hunger strike. An evacuation order made in response to worsening unsatisfactory sanitary conditions, along with other health, peace, security and public order risks did not result in a finding of violation). 99 E.g., Finland A/41/40 (1985) 220 (the Committee wished to know what justification there was for a provision authorising the police to interrupt public meetings organised by aliens and whether aliens had the right to organise such meetings or not).

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to freedom of assembly,100 removing obstacles to enjoyment of the right,101 and ensuring the availability of timely remedies for appealing a decision imposing a ban.102 The right should not be subordinated to political considerations,103 which are also likely to be discriminatory.104 There should be no deterrence to exercising the right105 (e.g., through harassment and intimidation,106 by requiring demonstrators to thumbprint documents pledging to refrain from future demonstrations,107 or by systematic use by police of cameras and video-recordings during demonstrations).108 States are required to prevent human rights violations occurring during protests, and must investigate, prosecute and punish those responsible for arrests, killings and illtreatment of demonstrators,109 including private individuals.110 The Committee has persistently indicated the need to observe the strict requirements of the limitation provisions of Article 21,111 and has pointed out where grounds of limitation in domestic law were ostensibly inconsistent with those permitted in Article 21, for example, Iran, where the holding of certain assemblies could be restricted if not in compliance with ‘principles of Islam’;112 Poland, if contrary to the ‘social interest’;113 Belize, the British Virgin Islands, Gibraltar and 100 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 39; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 52; Rwanda CCPR/C/RWA/CO/4 (2016) 41, 42; Switzerland CCPR/C/CHE/CO/4 (2017) 49 (including the right of spontaneous assembly); Turkmenistan CCPR/C/TKM/CO/2 (2017) 45; Belarus CCPR/C/BLR/CO/5 (2018) 53; Lao CCPR/C/LAO/CO/1 (2018) 34. 101 E.g., Malawi CCPR/C/MWI/CO/1 (2011) 17 (refusal to authorise peaceful demonstrations). 102 E.g., Benin CCPR/CO/82/BEN (2004) 23. See also Iceland A/38/40 (1983) 116. 103 E.g., Jordan CCPR/C/JOR/CO/4 (2010) 15; Russian Federation CCPR/C/RUS/CO/7 (2015) 21. 104 See reference to Art. 26 in sections ‘Introduction’, ‘Interaction between Article 21 and Other Covenant Provisions’, above. 105 E.g., Russian Federation CCPR/C/RUS/CO/7 (2015) 21 (harsh fines and prison sentences for the expression of political views); Macedonia CCPR/C/MKD/CO/3 (2015) 19 (pre trial deten tion for demonstrators in spite of lack of a previous criminal record). 106 E.g., Iran CCPR/C/IRN/CO/3 (2011) 26; Colombia CCPR/C/COL/CO/7 (2016) 38. 107 E.g., Cambodia CCPR/C/KHM/CO/2 (2015) 22. 108 E.g., China (Macao) CCPR/C/CHN HKG/CO/3 (2013) 16. 109 E.g., Malawi CCPR/C/MWI/CO/1 (2011) 17; Malawi CCPR/C/MWI/CO/1 (2014) 23 (Commission of Inquiry set up to investigate the handling of demonstrations was concerned that prosecutions had not yet taken place); Uzbekistan CCPR/C/UZB/CO/4 (2015) 24; Togo CCPR/C/79/Add.36 (1994) 6 (loss of life not fully investigated). 110 E.g., Venezuela CCPR/C/VEN/CO/4 (2015) 14(b). 111 E.g., Czechoslovakia A/33/40 (1978) 132; Cyprus CCPR/C/79/Add.88 (1998) 15; Benin CCPR/CO/82/BEN (2004) 23; Kenya CCPR/CO/83/KEN (2005) 23; Kuwait CCPR/C/KWT/ CO/2 (2011) 28; China (Macao) CCPR/C/CHN MAC/CO/1 (2013) 16; HK SAR CCPR/C/ CHN HKG/CO/3 (2013) 10; Russian Federation CCPR/C/RUS/CO/7 (2015) 21; Uzbekistan CCPR/C/UZB/CO/4 (2015) 24; Azerbaijan CCPR/C/AZE/CO/4 (2016) 39; Kazakhstan CCPR/ C/KAZ/CO/2 (2016) 52; Rwanda CCPR/C/RWA/CO/4 (2016) 42; Swaziland CCPR/C/SWZ/ CO/1 (2017) 45; Switzerland CCPR/C/CHE/CO/4 (2017) 49; Turkmenistan CCPR/C/TKM/ CO/2 (2017) 45; Belarus CCPR/C/BLR/CO/5 (2018) 53; Guatemala CCPR/C/GTM/CO/4 (2018) 37; Guinea CCPR/C/GIN/CO/3 (2018) 46; Lao CCPR/C/LAO/CO/1 (2018) 34. 112 Iran CCPR/C/IRN/CO/3 (2011) 26 (the Committee was concerned that the holding of public gatherings and marches as well as the establishment of associations were conditional upon compliance with ‘principles of Islam’, which were not defined under national legislation). 113 Poland CCPR A/35/40 (1980) 56.

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Hong Kong if ‘in the interests of the community as a whole’;114 China (Hong Kong), in response to ‘disorder in public places’ or ‘unlawful assembly’;115 Denmark for ‘public peace’;116 and Kazakhstan, ‘inciting social or class hatred’ and ‘religious hatred or enmity’.117 The departures from the limitation terms in the case of Belarus were manifold.118 A recurring theme is the chilling effect of restrictions on freedom of assembly.119 Although it is permissible to derogate from Article 21 on the terms of Article 4, the Committee has criticised the use of disproportionate restrictions on peaceful assembly during states of siege and emergency, and has recommended measures to ensure the full compatibility of its legislation with Article 4.120 It has also maintained pressure on some of the few States that have had reservations affecting Article 21 to withdraw them.121

C O N C L US I O N Since freedom of assembly is a form of freedom of expression, as Humphrey shows, there exist a number of anomalies across the two freedoms, particularly in the differences in the limitation terms of Articles 19 and 21. The lack of the qualifying condition ‘in a democratic society’ in Article 19 may be resolved, as Kiss proposed, by importing it into Article 19 (and Article 18) from which it is missing. This is consistent with the declared importance of free expression as a characteristic of a democratic society, common to both rights. Some of the other

114 UK A/34/40 (1979) 322. 115 HK SAR CCPR/C/CHN HKG/CO/3 (2013) 10. 116 Denmark A/33/40 (1978) 109. 117 Kazakhstan CCPR/C/KAZ/CO/2 (2016) 13. See also Kazakhstan CCPR/C/KAZ/CO/2 (2016) 51 (offences of providing ‘assistance’ to ‘illegal’ assemblies). 118 Belarus CCPR/C/BLR/CO/5 (2018) 51 (undue restrictions in broad authorisation requirements for holding all types of protests; stringent conditions for granting authorisation, including undertakings to arrange for public order and safety, provision of medical and cleaning services; limitations on the conduct of assemblies, especially restricting them to certain permissible locations only, limiting the size of assemblies to less than 1,000 persons, and banning sponta neous assemblies; notification procedure used only for assemblies conducted in permanent places designated by authorities which reportedly are located far from the centre). 119 E.g., Russian Federation CCPR/C/RUS/CO/7 (2015) 21 (violent and unjustified dispersal of protesters by law enforcement officers, arbitrary detentions and imposition of harsh fines and prison sentences for the expression of political views); Moldova CCPR/C/MDA/CO/3 (2016) 33 (concern at the nature of cases that had led to the prosecution of organisers of assemblies, which may create a chilling effect on the enjoyment of the right to freedom of assembly); Turkmenistan CCPR/C/TKM/CO/2 (2017) 44 (assemblies rare owing to a fear of reprisals for expressing any dissenting views); Lao CCPR/C/LAO/CO/1 (2018) 33 (the development of a civic space was hindered in which individuals can meaningfully exercise their human rights and promote human rights without fear of sanctions and reprisals). 120 E.g., Guinea CCPR/C/GIN/CO/3 (2018) 13, 14. 121 E.g., France A/38/40 (1983) 296; Belgium A/43/40 (1988) 468; France A/43/40 (1988) 397; Belgium A/47/40 (1992) 421; India CCPR/C/79/Add.81 (1997) 14; Belgium CCPR/C/BEL/ CO/5 (2010) 7.

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key differences between the limitation texts of Articles 19 and 21 may be explained by concerns for the power of mass media (discussed in the chapter on Article 19) leading to an emphasis in Article 19 on ‘special duties and responsibilities’, as well as ‘respect’ of the rights ‘or reputations’ of others, which are not appropriate in Article 21. At risk of over-simplicity it may be ventured that exercising the freedom of assembly on its own does not generally pose the same hazards as more powerful conventional Article 19 forms of expression through use of the mass media (nor does freedom of association). Nevertheless, the Committee’s scrutiny of domestic provisions still demonstrates its insistence that the individual terms of limitation are to be strictly observed both in law and practice. A number of important principles ring out clearly in the Committee’s recent jurisprudence under Article 21. Decisions such as Kirsanov v. Belarus and Alekseev v. Russian Federation stress the harm associated with restrictions on the content of the message conveyed, given that the cornerstone of a democratic society is free dissemination of information and ideas, including information and ideas contested by government or the majority of the population. Content restrictions represent the most serious interferences with the freedom of peaceful assembly, and other expressive freedoms. Consistent with a similar pattern established by the Committee under Articles 18 and 19 when requiring strict proof of the necessity of restrictions, a number of Article 21 decisions highlight the insufficiency of reliance on the protective purpose of measures if the State is unable to particularise the threat individually posed to ‘national security or public safety, public order . . . the protection of public health or morals or the protection of the rights and freedoms of others’. Even if the State can do that, it must also demonstrate that the restrictions chosen represent the least restrictive means available. Freedom of assembly engages the ‘rights and freedoms of others’ in an unusual way when demonstrations spark counter-demonstrations, often aimed at discrediting, suppressing or contradicting the message sought to be conveyed. Alekseev is a decision of particular value in deposing as the pretext for preventing an assembly fears of public reaction. Instead, the obligation is on the State, in a democratic society, to put in place effective measures to protect against attacks aimed at silencing those exercising their freedom. The obligation cannot be avoided merely by asserting public order sensitivities and similar reasons for not allowing assemblies to proceed. There is particularly marked consistency with Article 19 in the principle that freedom of assembly protects demonstrations promoting ideas that may be regarded as annoying or offensive by others. In such cases, States have a duty to protect the participants in such a demonstration in the exercise of their rights against violence by others. The obligation of the State is a general one, not confined to Article 21, to protect anyone exercising their Covenant rights and not to contribute to suppressing those rights.

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Article 22: Freedom of Association

INTRODUCTION ARTICLE 22(1): SCOPE ARTICLE 22(2): TERMS OF LIMITATION ARTICLE 22(3): THE ILO CONVENTIONS IMPLEMENTATION CONCLUSION

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Covenant Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this Article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. Comparable Provisions in Other International Instruments European Convention: Article 11. American Convention on Human Rights: Article 16. African Charter on Human and Peoples’ Rights: Article 10.

INTRODUCTION That freedom of association is vital to any democratic system is self-evident. It enables the very existence of political parties, allowing pluralist expression in a multi-party system, and offering choice in popular representation. Associations 610

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endure as the vehicles of political expression.1 The Conference on Security and Co-operation in Europe (CSCE) recognised that ‘vigorous democracy depends on the existence as an integral part of national life of democratic values and practices as well as an extensive range of democratic institutions’, and for this reason encouraged participating States to provide support and cooperation in developing political parties and their role in pluralistic societies, and other forms of free associations and public interest groups.2 Associational freedom is also essential to the enjoyment of civil, rather than political, rights. It is directed at serving the interests of the association’s membership. The beneficiaries are individuals (emphasised by the word ‘everyone’) in their collective pursuits, including those that are religious, ethnic, linguistic, cultural, economic, industrial, commercial or sporting, and even if the mission of the association is directed externally. It does not matter how trivial the collective purpose may be, as protection does not depend on any beneficial, public welfare, democratic or other outcome. The protection for freedom of association within numerous UN3 and European instruments,4 including specialised international conventions, testifies to its importance in supporting the interests of ethnic, religious or linguistic minorities,5 racial minorities,6 children,7 the disabled,8 workers,9 including migrant workers,10 refugees,11 stateless persons,12 and those suffering gender inequality.13 The far-reaching importance of promoting interests collectively by means of the freedom of association, in support of numerous other fundamental rights and 1 See, e.g., General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7 (GC 25) [8], [26]. 2 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990 [26]. 3 Universal Declaration of Human Rights Art. 20, and those conventions cited at notes [5] [13]. 4 European Union, Charter of Fundamental Rights of the European Union Art. 12; European Social Charter (1961, revised in 1996) Art. 5; European Convention on the Recognition of the Legal Personality of International Non Governmental Organisations (1986) Arts 1 4; Framework Convention for the Protection of National Minorities (1995) Art. 7; Convention on Preventing and Combating Violence against Women and Domestic Violence (2011) Art. 9. 5 Framework Convention for the Protection of National Minorities (1995) Art. 7. 6 International Convention on the Elimination of All Forms of Racial Discrimination (1965) (ICERD) Art. 5(d)(ix). 7 Convention on the Rights of the Child (1989) Art. 15(1). 8 Convention on the Rights of Persons with Disabilities (2006) Art. 29(b). 9 ILO, Convention concerning Freedom of Association and Protection of the Right to Organise, C87, 9 July 1948, Arts 2 5, 11; ICESCR, Art. 8 (trade unions). 10 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, Art. 26. 11 Convention Relating to the Status of Refugees, 28 July 1951, UNTS vol. 189, p. 137, Art. 15. 12 Convention Relating to the Status of Stateless Persons, 28 September 1954, UNTS vol. 360, p. 117, Art. 15. 13 CEDAW, 18 December 1979, UNTS vol. 1249, p. 13, Art. 7(c).

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freedoms, is exemplified in the recent observations by the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association about the suffering of vulnerable workers without that freedom (or freedom of assembly). Workers have little leverage to change the conditions that entrench poverty, fuel inequality and limit democracy. Low-wage migrant workers face severe economic disadvantage, in conditions which render them vulnerable to numerous extreme human rights abuses. They are not only exploited by their irregular status, but are often also exposed to recruitment fees which leave them with unrepayable debt, they face unsafe and unhealthy working and living conditions, and gender-based violence. Many may find themselves trafficked, in conditions of forced labour or slavery, isolated, unpaid, with restricted freedom of movement and no access to justice. Migrant workers in many countries have become a massive, disposable, low-wage workforce excluded from remedies or realistic opportunities to bargain collectively for improved wages and working conditions.14 To address these issues the Special Rapporteur recommended a suite of responses from States, multilateral organisations and businesses (among others) to create the best possible enabling environment for the exercise of the Article 21 and 22 freedoms.15 Interaction between Article 22 and Other Covenant Provisions The dependence of Article 25 rights on the freedom of association has already been touched on but warrants some elaboration. Without freedom of association political parties would not be freely constituted and form their crucial part in any electoral system. Interest groups would not exist effectually to contribute their influence on public opinion. Article 22 restrictions which impact on Article 25 rights include obstacles to political parties registering, contesting elections, fielding candidates or otherwise participating in the formation of a government;16 they exist in broad powers to suspend, dissolve or interfere with the functioning of political parties,17 and in prohibitive rules for registering political parties and associations.18 Restrictions on freedom of association may combine with violation of: Article 6, in extreme circumstances where exposure to the death penalty

14 15 16 17 18

A/71/385 (2016) [28]. Recommendations to the General Assembly, A/71/385, [94] [102]. E.g., Swaziland CCPR/C/SWZ/CO/1 (2017) 52. E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 53; Turkmenistan CCPR/C/TKM/CO/2 (2017) 48. E.g., Tunisia CCPR/C/79/Add.43 (1994) 12; Azerbaijan CCPR/CO/73/AZE (2001) 23; Korea CCPR/CO/72/PRK (2001) 25; Uzbekistan CCPR/CO/71/UZB (2001) 23; Moldova CCPR/CO/ 75/MDA (2002) 16; Uzbekistan CCPR/CO/83/UZB (2005) 21; Uzbekistan CCPR/C/UZB/CO/3 (2010) 25; Uzbekistan CCPR/C/UZB/CO/4 (2015) 25; Morocco CCPR/C/MAR/CO/6 (2016) 41; Belarus CCPR/C/BLR/CO/5 (2018) 54.

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results from establishing organisations contrary to official ideology;19 Article 9, in arbitrary detention from enforcement of legislation rendering participation in certain organisations illegal;20 Articles 2 and 26, in prolonged delays in registering associations in support, for example, of sexual minority rights,21 or where registration is refused on grounds of religious belief;22 and, in addition, Article 27 if it is refused to associations of national minorities with ‘political objectives’.23 The purpose is often to defeat the full scope of associational freedom at the imposed hurdle of recognition of legal personality. Instead, domestic formalities are meant to be means for achieving fully protected organisational existence. Article 22 operates in tandem with the associative rights within other Covenant provisions, notably the organisational protection within Article 18 for religious freedom,24 and within Article 27 to support the interests of minority groups in the enjoyment of their own culture, religion or language. The Committee’s General Comment 31 on Article 2 notes that although the Covenant does not mention the rights of legal persons, entities or collectivities (apart from in Article 1 where it refers to ‘peoples’), many rights under the Covenant, including those under Articles 18, 22 and 27, are enjoyed by individuals in community with others, and nothing prevents them from claiming that actions or omissions that concern legal persons and similar entities amount to a violation of their own rights.25

19 E.g., Libya CCPR/C/LBY/CO/4 (2007) 24 (death penalty for the establishment of groups, organisations or associations based on a political ideology contrary to the principles of the 1969 Revolution or calling for the establishment of such groups). 20 M.T. v. Uzbekistan, CCPR/C/114/D/2234/2013, 23 July 2015 [7.7] (the author was detained, charged, indicted and later convicted and imprisoned for the establishment of an unregistered public organisation, severely restricting her freedom of association); El Salvador CCPR/C/SLV/ CO/7 (2018) 37. 21 E.g., Mozambique CCPR/C/MOZ/CO/1 (2013) 22. See also Burundi CCPR/C/BDI/CO/2 (2014) 8. 22 See chapter on Article 18: Freedom of Thought, Conscience and Religion, sections ‘Collective Aspects of Religion or Belief’, ‘Registration’. 23 E.g.. Bulgaria CCPR/C/BGR/CO/4 (2018) 35. 24 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [7.2]; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55, Art. 6. In the context of the European Convention, see Hasan and Chaush v. Bulgaria [GC], App. No. 30985/96, ECHR 2000 XI, [62]: ‘the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords’. 25 General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 (GC 31) [9]. On whether Covenant rights extend beyond individuals, to groups or collective juridical persons, see Nowak, CCPR Commentary, pp. 14 15, 42, discussing the anomaly posed by the right to self determination which refers to ‘all peoples’.

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Chapter Outline The main components of Article 22 are discussed under three headings: first, ‘Scope’, which embraces under Article 22(1) such issues as compulsion and conscience, since freedom of association is a matter of volition, and it also specifically covers the right to form and join trade unions; secondly, ‘Terms of Limitation’, which in Article 22(2) bear strong similarity with those under Articles 18, 19 and 21, particularly in the strictness with which they are to be interpreted and applied (though Article 22 is differentiated by its unusual reference to the armed forces and the police); and, thirdly the ILO Convention concerning Freedom of Association and Protection of the Right to Organise, because it has number of guarantees which are preserved in Article 22(3).

A RT I C L E 2 2 ( 1 ) : S C O P E The Right of the Individual to Found and to Join an Association Freedom of association spans not only to the right to form an association, but extends to all activities of an association.26 According to Nowak, the legal form of associations is unrestricted, but juridical persons not founded as a result of a declaration of will by individuals but merely by law or as an administrative act (such as public corporations) are not protected by Article 22.27 A proposal that the right of association, including trade union rights, should be protected only against ‘governmental interference’ was rejected (as was the equivalent proposal for freedom of assembly),28 rendering it consistent with the State’s obligation to ‘ensure’ Covenant rights under Article 2. Article 22 is expressed in terms of a ‘freedom’ (similar to Articles 18 and 19).29 Compulsion to Join an Association A Somali proposal in the Third Committee to add ‘No one may be compelled to join an association’ was well supported, but was withdrawn in the light of the discussion.30 Those who opposed it feared that the effect may be to hamper the effective functioning of trade unions. Also, the existing text (‘the right to freedom of association with others’) was clearly designed to permit anyone to join or to refrain from joining, according to their wishes. Consistent with Article 20(2) of the Universal Declaration, participation in an association is voluntary. It is 26 Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011 [8.2]; Korneenko et al. v. Belarus, CCPR/C/88/D/1274/2004 31 October 2006 [7.2]. 27 Nowak, CCPR Commentary, p. 498. 28 A/2929, Ch.VI (1955) p. 56 [148]. 29 See Bossuyt, Guide to the ‘Travaux Préparatoires’, p. 426; A/2929 (1955), Ch.VI. p. 56 [149]. 30 A/5000 (1961), p. 19 [64], [69]; Bossuyt, Guide to the ‘Travaux Préparatoires’, p. 433. For a similar proposal in the Commission, see A/2929 (1955), Ch.VI. pp. 55 56 [145].

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a constituent of Article 22, even though not expressed in terms. There is a conscience aspect that also militates against compulsion in joining an association, though it is clearer in European Court decisions.31 Gauthier v. Canada concerned access to facilities provided by the House of Commons to journalists. Those who were not members of the Canadian Press Gallery were excluded, including the author. He claimed this amounted to being forced to join an association in order to enjoy a fundamental right such as freedom to obtain information. The Committee decided he had not substantiated this part of his claim, which prompted dissent from a significant number of Committee members (Lord Colville, Elizabeth Evatt, Cecilia Quiroga and Solari Yrigoyen (in one Individual Opinion), and Prafullachandra Bhagwati (in another)). They argued that freedom of association implies that no one may be forced to join an association, either by way of a requirement to engage in a particular profession or calling, or by sanctions for failing to be an association member. They contended that it is for the State to demonstrate the necessity for this, and since it was clear from the Committee’s assessment of the Article 19 claim that it was not necessary, it also disclosed a violation of Article 22.32 Rajsoomer Lallah put the issue slightly differently, that to impose membership of an association as a condition of full access to the press facilities in effect meant compulsion to seek membership of the association, which may or may not be granted.33 The question of compulsion under Article 22 also arose in Franz Wallmann et al. v. Austria in a claim that the imposition of annual membership fees by a regional Chamber of Commerce violated the freedom. Addressing the scope of Article 22, the Committee observed that it only applies to private associations, including for purposes of membership. Commerce chambers established by the State as organisations under public law were therefore not precluded by Article 22 from imposing annual membership fees on members (unless the aim was to circumvent the guarantees in Article 22). Compulsory membership and the imposition of annual membership fees in those circumstances did not constitute an interference under Article 22.34 31 The European Court found a violation of freedom of association in Young, James and Webster v. United Kingdom [1982] App. Nos 7806/77, 7601/76 [1981] ECHR 4 [57] [61], when a closed shop agreement forced union membership on employees against their conscience; and in Chassagnou v. France, App. Nos 25088/94, 28331/95, 28443/95, ECHR 1999 III, (2000) 29 EHRR 615, concerning hunting rights. 32 Gauthier v. Canada, CCPR/C/65/D/633/1995, 5 May 1999, Individual Opinion by Lord Colville, Elizabeth Evatt, Ms Cecilia Medina Quiroga and Mr Solari Yrigoyen (partly dissenting), and Individual Opinion by Prafullachandra N. Bhagwati (partly dissenting). 33 Individual Opinion by Committee member Rajsoomer Lallah (partly dissenting). 34 Wallmann et al. v. Austria, CCPR/C/80/D/1002/2001, 1 April 2004 [8.10], [9.4] [9.5] (to the extent that the complaint was that the practical effect of the annual membership fees was to prevent founding or joining alternative associations, there was a failure to substantiate that the annual payments to the Chamber were so onerous as to constitute a relevant restriction on the freedom of association).

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The claim in Arenz et al. v. Germany was based on exclusion from a political party. The authors alleged violation of Articles 2(1), 18, 19, 22, 25, 26 and 27 as a result of their expulsion from a political party based on their affiliation with Scientology. Their claim was inadmissible, because it subsisted merely in the fact that domestic courts gave priority to the principle of party autonomy over the authors’ wish to be members in a political party that did not accept them due to their membership in another organisation of an ideological nature.35 Trade Unions

The Right to Join a Trade Union Article 22(1) singles out for inclusion within the right to freedom of association ‘the right to form and join trade unions for the protection of his interests’. Trade unions are dealt with in Article 8 of the ICESCR in the more confined context of the right of everyone to form trade unions and join the trade union of his or her choice ‘for the promotion and protection of his economic and social interests’ (rather than ‘interests’ more generally).36 There was some debate in the Commission on Human Rights over whether the rights to form and join trade unions should be specifically included. Given that trade union rights were addressed in the ICESCR, there was concern that mention in both instruments would give rise to different sets of limitations. There was also a dilemma in that the rights to form and join trade unions were civil rights and not to include them in the Covenant would suggest otherwise. The view prevailed that they should be mentioned. Trade unions must often struggle for the protection of the civil rights as well as the economic and social interests of their members, and the general term ‘for the protection of his interests’ was preferable in the Covenant to the term ‘for the protection of his economic and social interests’ in the ICESCR.37 A Ukrainian amendment was proposed in the Third Committee to extend trade union rights to a right to form both national and international trade union organisations, based partly on a counterpart provision in the draft ICESCR. It received support from those who were concerned that some countries may become parties only to one of the twin Covenants, and its absence in this Covenant may cast doubts on its status there. Opponents were concerned that it would place primary stress on the rights of trade unions, to the neglect of other associations, when the provision was intended to ensure the right of the individual to join associations of every

35 Arenz et al. v. Germany, CCPR/C/80/D/1138/2002, 24 March 2004 [8.6]. 36 ICESCR Art. 8(1)(a). 37 A/2929 (1955), Ch.VI. p. 56 [146] [147].

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kind, political, civic, economic, social or cultural; also, the existing reference to ‘trade unions’ covered both national and international unions.38 The right to join a trade union prevents punishment or persecution of individuals for their trade union activities, an extreme illustration being Burgos v. Uruguay which resulted in the disappearance of the victim after he had been charged with the offence of ‘subversive association’.39 The Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has noted that some States have outright bans on all legitimate unions, including Saudi Arabia and the United Arab Emirates.40 Examples of allegations of indirect State-sponsored restrictions on the right to form and join trade unions include, in the United States, Tennessee State officials reportedly offering incentives to Volkswagen for adding a production line to a factory, contingent on the plant remaining non-unionised.41 Free trade agreements may also have an impact, such as the Trans-Pacific Partnership Free Trade Agreement, which was said to favour the economic interests of businesses over this freedom by giving corporations the right to challenge laws and policies that harm their investments.42

Right Not to Join a Trade Union ‘Closed shop’ arrangements have been tested under European jurisprudence, but not before the Committee in OP1 claims. A closed shop is an arrangement between trade unions and employers or employers’ associations, requiring employee membership of a particular union. In the European Convention Article 11 claim in Young, James and Webster v. United Kingdom two of the applicants had objections to trade union policies and activities coupled, in the case of one of them, with objections to the political affiliations of the relevant unions.43 As a result of their refusal to yield to what they considered to be unjustified pressure, they received notices terminating their employment. The European Court considered that ‘compulsion to join a particular trade union may not always be contrary to the Covention’, but a threat of dismissal involving loss of livelihood directed against those engaged before the introduction of any obligation to join a particular trade union ‘strikes at the very substance of the freedom 38 A/5000 (1961), p. 20 [65]; Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 427 et seq. 39 Burgos v. Uruguay, Communication No. R.12/52, Supp. No. 40 (A/36/40) at 176, 29 July 1981 [13] (violation of Art. 22(1) in conjunction with Art. 19(1) and (2) because Lopez Burgos suffered persecution for his trade union activities). Note also the Committee’s concern at Korea CCPR/C/KOR/CO/4 (2015) 55, recommending that Korea enable all sectors of the labour force, including public officials and employees who have been dismissed, to join trade unions. 40 A/71/385 (2016) [59]. 41 A/HRC/32/36 (2016) [38]. 42 A/HRC/32/36 (2016) [39]. 43 Young, James and Webster v. United Kingdom, App. Nos 601/76; 7806/77 [1981] ECHR 4 [34], [37], [43].

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guaranteed by Article 11’.44 More definitively (and with greater consistency with Article 20(2) of the Universal Declaration) in Sørensen and Rasmussen v. Denmark the European Court found violations of Article 11 in compulsion to join a specific trade union. Denmark had not adequately protected the negative right of freedom of association, namely, the right not to join a trade union.45

Right to Strike Given the drafting history of Article 22, in particular the deliberate omission of the right to strike from the Covenant, in J.B. et al. (Alberta Union) v. Canada the Committee decided at admissibility stage that the right to strike was not guaranteed. It observed that in the drafting of both of the twin Covenants, the Commission on Human Rights was steered by the Universal Declaration, which does not refer to the right to strike. In 1951, the Commission adopted the text of a single draft Covenant which also did not provide for such a right. When discussed in the Commission in 1952 an amendment to include the right to strike was rejected. When text for what ultimately became Article 22 was adopted no proposal was tabled with a view to including the right to strike. A provision assigned to the draft ICESCR eventually included the right to strike, without any similar provision in the Covenant. The Committee could not therefore deduce from the travaux préparatoires that the drafters of the Covenant intended to guarantee the right to strike.46 Five dissenting Committee members did not consider the drafting history was determinative (it would have been inappropriate to mention particular activities like strike action in the text). Based on their construction of Article 22 it was an inherent aspect of the freedom of association. The issue of whether it had been unduly restricted should therefore have been decided on the merits.47 The European Court has affirmed that the right to strike is recognised by the ILO as the intrinsic corollary of the right to trade union association (protected by ILO Convention on Freedom of Association and Protection of the Right to Organise) and by the European Social Charter (as a means to ensure the effective exercise of the right to collective bargaining).48 In spite of early hesitance of the Committee to recognise the right to strike, the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of 44 Ibid., [54] [55]. 45 Sørensen and Rasmussen v. Denmark, App. Nos 52562/99 and 52620/99, (2008) 46 EHRR 29 [57] [58], [64]; cf. Akat v. Turkey, App. No 45050/98, ECHR, 20 September 2005 (no violation of Art. 11 in the case of civil servants who may be transferred). 46 J.B. et al. v. Canada, Communication No. 118/1982, Supp. No. 40 (A/41/40) at 151 (1986), 18 July 1986 [6.3]. 47 Individual Opinion of Mrs Higgins and Messrs Lallah, Mavrommatis, Opsahl and Wako [3] [5]. 48 For further discussion, see Albertine Veldman, ‘The Protection of the Fundamental Right to Strike within the Context of the European Internal Market: Implications of the Forthcoming Accession of the EU to the ECHR’, (2013) 9(1) Utrecht L. Rev., p. 104.

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Association has noted that the right to strike is widely established in international law in a range of instruments, and has become customary international law.49 Restrictions on the right to strike include exclusion of certain categories of workers from that right, excessive prerequisites required to hold a legal strike, inappropriate legal changes that allow public authorities to suspend or declare a strike illegal,50 and harsh police repression of strikes.51

ARTICLE 22(2): TERMS OF LIMITATION At an early stage of drafting, the limitation provision was similar to that for freedom of assembly. In the Commission on Human Rights the United States proposed to subject it ‘only to such limitations as are pursuant to law and which are reasonable and necessary for the protection of national security, public safety, health or morals, or the fundamental rights and freedoms of others’. An Egyptian amendment to delete ‘reasonable and’ succeeded. A British proposal (which allowed greater restriction on members of the armed forces or the police (discussed below)) significantly shaped the final limitation provision.52 Iraq’s proposal in the Third Committee to add ‘(ordre public)’ after ‘public order’ was accepted to conform with Article 21.53 In the final text restrictions on the freedom are only permitted ‘which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others’. The Committee has paid close attention to this limitation provision in Concluding Observations, expressing concern at broad restrictions on a wide variety of associations, including trade unions,54 political parties,55 NGOs56 and 49 A/71/385 [56]. On trade union freedoms more generally, see C. Wilfred Jenks, The International Protection of Trade Union Freedom, Library of World Affairs, No. 35 (Praeger, 1957), pp. 561 2; Arthur Utz, ‘Is the Right to Strike a Human Right’, (1987) 65 Wash. U. L. Q., p. 732; International Labour Standards: a Workers’ Education Manual, 3rd rev. edn (ILO Geneva, 1990), p. 106; Breen Creighton, ‘The ILO and Protection of Freedom of Association in the United Kingdom’, in Keith Ewing, Conor Gearty and Bob Hepple (eds), Human Rights and Labour Law: Essays for Paul O’Higgins (Mansell, 1994), p. 2. 50 A/71/385 (2016) [67]. See also Kazakhstan CCPR/C/KAZ/CO/2 (2016) 53; Belarus CCPR/C/ BLR/CO/5 (2018) 54. 51 E.g., Algeria CCPR/C/DZA/CO/4 (2018) 49. 52 A/2929 (1955), Ch.VI. p. 56 [150] [151]; Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 429 et seq. The British proposal did not refer to ‘fundamental’ rights and freedoms of others. 53 A/5000 (1961), pp. 20 21 [67]. 54 E.g., Argentina CCPR/C/ARG/CO/4 (2010) 22; Dominican Republic CCPR/C/DOM/CO/6 (2017) 31; Swaziland CCPR/C/SWZ/CO/1 (2017) 44; Algeria CCPR/C/DZA/CO/4 (2018) 49. 55 E.g., Uzbekistan CCPR/C/UZB/CO/3 (2010) 25; Kazakhstan CCPR/C/KAZ/CO/1 (2011) 27; Swaziland CCPR/C/SWZ/CO/1 (2017) 52; Belarus CCPR/C/BLR/CO/5 (2018) 54. 56 E.g., Russian Federation CCPR/C/RUS/CO/6 (2009) 26; Jordan CCPR/C/JOR/CO/4 (2010) 16; Angola CCPR/C/AGO/CO/1 (2013) 22; Djibouti CCPR/C/DJI/CO/1 (2013) 12; Mauritania

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those promoting the interests of LGBTI;57 and objecting to the lack of clarity of such definitions as ‘illegal organisations’ or ‘illegal groups, associations and organizations’,58 which have the effect of restricting the right;59 and of vaguely defined criminal offences relating to terrorist acts,60 ‘social, national, clan, class or religious discord’;61 and as a basis for restriction that associations were not in line with the State’s official philosophy.62 Prescribed by Law The requirement in Articles 18 and 22 is for restrictions to be ‘prescribed by law’; in Articles 12 and 19 they are to be ‘provided by law’; and in Article 21 that they be ‘imposed in conformity with the law’.63 In General Comment 22 the Committee offered some guidance on the ‘prescribed by law’ formula shared by Articles 18 and 22, to the effect that ‘[l]imitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed’.64 ‘Prescribed by law’ may be said to differ from ‘in conformity with the law’ because of the particular purpose the latter serves in Article 21 for the freedom of assembly, to allow administrative decisions as an expedient in appropriate circumstances. The ‘provided by law’ stipulation in Articles 12 and 19 is closer in substance to ‘prescribed by law’. General Comment 34 on Article 19 has more subject-matter relevance to Article 22 (where freedom of association is conceived as a particular form of the freedom of expression). There the Committee indicated the requirements of a ‘law’ ‘must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly’, and that ‘[l]aws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not’.65 There is

57 58 59 60 61 62

63 64 65

CCPR/C/MRT/CO/1 (2013) 22; Mozambique CCPR/C/MOZ/CO/1 (2013) 22; Tajikistan CCPR/ C/TJK/CO/2 (2013) 23 (arbitrary shutting down of various NGOs, without observance of procedural safeguards or as a disproportionate response to technical irregularities); Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 25. E.g., Russian Federation CCPR/C/RUS/CO/6 (2009) 27. E.g., El Salvador CCPR/C/SLV/CO/7 (2018) 37. E.g., Turkey CCPR/C/TUR/CO/1 (2012) 19. E.g., Guatemala CCPR/C/GTM/CO/4 (2018) 37 (recommendation to ensure that any restriction fully meets the strict requirements set out in Art. 22(2)). Kazakhstan CCPR/C/KAZ/CO/2 (2016) 53. E.g., Iran CCPR/C/IRN/CO/3 (2011) 26 (‘principles of Islam’); Indonesia CCPR/C/IDN/CO/1 (2013) 24 (associations should be in line with the State’s official philosophy of Pancasila, which propagates the belief ‘in the One and Only God’). See also Algeria CCPR/C/DZA/CO/4 (2018) 47 (respect for national values and principles). For debates in connection with Art. 22, see A/2929 (1955), Ch.VI. p. 56 [150] [151]; Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 429 31. General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4 [8]. General Comment No. 34: Article 19 (Freedoms of Opinion and Expression), 12 September 2011, CCPR/C/GC/34 [25]. For further discussion, see chapter on Article 19: Freedom of Expression.

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otherwise little guidance on the distinction between the requirements that restrictions be ‘prescribed’ by law and ‘provided’ by law. Necessary in a Democratic Society The Committee has commented in a number of cases that the reference to ‘democratic society’ in Article 22(2) ‘indicates . . . that the existence and operation of associations, including those which peacefully promote ideas not necessarily favourably viewed by the Government or the majority of the population, is a cornerstone of a democratic society’.66 The significance of the term ‘democratic society’ within the Covenant’s limitation terms was discussed at length in the previous chapter.67 An oral proposal of the Soviet Union in the Commission on Human Rights would have added to the text on freedoms of association and assembly, ‘All societies, unions and other organisations of a Fascist or anti-democratic nature and their activity in whatever form shall be forbidden by the law on pain of punishment.’68 It was rejected (by seven votes to three, with six abstentions). It demonstrates that without appropriate consensus on the meaning of ‘democratic’, such a provision could have been a powerfully repressive tool. There is certainly a place for prohibiting associations in extreme cases. Under Article 4(b) of ICERD States are required to declare illegal and to prohibit organisations which promote and incite racial discrimination, and to punish as an offence participation in such organisations. Such organisations may also lack protection through the interpretive operation of Article 5, which prevents any Covenant provision being construed in support of any activity aimed at the destruction of the rights and freedoms in the Covenant, or at their limitation to a greater extent than permitted. The Committee’s comparatively early decision in M.A. v. Italy offered limited guidance under Article 5 when assessing the author’s conviction on an indictment for ‘organising a movement which has as its object the elimination of the democratic freedoms and the establishment of a totalitarian regime’. The communication was inadmissible for being incompatible with the provisions of the Covenant ratione materiae, because ‘the acts of which M.A. was convicted (reorganizing the dissolved fascist party) were 66 Zvozskov et al. v. Belarus, CCPR/C/88/D/1039/2001, 17 October 2006 [7.2]; Korneenko et al. v. Belarus, CCPR/C/88/D/1274/2004 31 October 2006 [7.3]; Kungurov v. Uzbekistan, CCPR/C/ 102/D/1478/2006, 20 July 2011 [8.4]; Zaidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018 [9.9]. For the travaux in reference to Art. 22, see Bossuyt, Guide to the ‘Travaux Préparatoires’, pp. 429 31; Svensson McCarthy, The International Law of Human Rights and States of Exception, pp. 104 5. 67 For discussion on the characteristics of a ‘democratic society’ envisaged in the travaux to Arts 21 and 22, see the chapter on Article 21: Freedom of Assembly, section ‘Necessary in a Democratic Society’. 68 Bossuyt, Guide to the ‘Travaux Préparatoires’, p. 429; E/CN.4/272; E/CN.4/SR.121, 12.

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of a kind which are removed from the protection of the Covenant by article 5 thereof and which were in any event justifiably prohibited by Italian law having regard to the limitations and restrictions applicable to the rights in question under the provisions of articles 18(3), 19(3), 22(2) and 25 of the Covenant’.69 (The European Court has supported dissolution of organisations in Refah Partisi v. Turkey and Hizb ut-Tahrir and Others v. Germany where they proposed overturning the existing democratic order for one which was manifestly incompatible with Convention standards, drawing a sharp distinction between a political organisation that promotes change by legal and democratic means, and activities intended to destroy rights or freedoms and thus bring about the destruction of democracy.70) Dissolution of an association or denial of their legal existence represents the most extreme forms of restriction under Article 22. As Nowak explained, ‘[t]he dissolution of an association or the prohibition of its formation as the severest restriction on freedom of association is possible ultima ratio only when milder measures for restricting the sphere of activities are insufficient. Total prohibition of an association is permissible only for State-threatening organisations, those violating Art. 20 or others whose activities aim at the destruction of the rights of the Covenant within the meaning of Art. 5(1).’71 The Committee declined to respond to the Article 5 aspect of the claim in Romanovsky v. Belarus since Article 5(1) does not give rise to any separate individual rights. The asserted violation of Article 22, read in conjunction with Article 5(1), was simply that arguments advanced by the Ministry of Justice were beyond the permitted restrictions set out in Article 22(2). The Committee did, however, find a violation of Article 22 on the basis of the consequences for the author and his association in being refused registration.72 One key difference between Articles 20 and 22(2) is that under Article 22(2) restrictions may be imposed on freedom of association, if properly justified as necessary on relevant grounds, ‘in a democratic society’. An association’s conduct constituting ‘advocacy of national, racial or religious hatred’ within the meaning of Article 20(2) must be prohibited.73

69 M.A. v. Italy, Communication No. 117/1981, Supp. No. 40 (A/39/40) at 190 (1984), 21 September 1981 [13.3]. 70 Refah Partisi (Welfare Party) et al. v. Turkey, App. Nos 41340/98, and 41342 4/98, ECHR 2003 II, [2003] ECHR 87, 13 February 2003, [99]; Hizb ut Tahrir et al. v. Germany, App. No. 3190/08, 12 June 2012. 71 Nowak, CCPR Commentary, pp. 505 6. 72 Romanovsky v. Belarus, CCPR/C/115/D/2011/2010, 29 October 2015 [3.2], [6.5], [7.3] [7.4]. 73 The interaction between freedom of expression and Arts 5 and 20 is discussed further in the chapters on Article 19: Freedom of Expression, section ‘Interaction between Article 19 and other Covenant Povisions’, ‘Respect of the Rights and Reputations of Others’; Article 20: Propaganda for War and Hate Speech, section ‘Hate Speech: Article 20(2)’.

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National Security or Public Safety National security may be invoked only in response to a specific threat, not some hypothetical danger. Criminal sanctions (including a one-year prison sentence) on the author were found to be unjustified in Jeong-Eun Lee v. Korea for his membership in Hanchongnyeon, which the State declared to be an ‘enemy benefiting group’ and an anti-State organisation. It was merely a nationwide student association which pursued the objectives of democratisation of Korean society and national reunification. The relevant national security legislation prohibited support for associations which ‘may’ endanger the existence and security of the State or its democratic order. The State had not specified the precise nature of the threat allegedly posed by the author’s membership: the ‘mere existence of reasonable and objective justifications for limiting the right to freedom of association is not sufficient. The State party must demonstrate that the prohibition of an association is necessary to avert a real and not only hypothetical danger to national security or democratic order, and that less intrusive measures would be insufficient to achieve the same purpose.’74 The principles set out in that last sentence were reiterated in Zaidov v. Tajikistan. The prohibition against a prominent centrist politician starting a political party was found to be disproportionate with little supporting explanation needed by the Committee (accompanied by findings of violation of Articles 9, 14 and 19).75 ‘Public safety’ was added in the Commission on Human Rights as a result of a British proposal,76 but perhaps has less relevance under Article 22(2) than Article 21. Public Order ‘Public order’ may provide a basis of limitation in the case of strikes, in particular, a general strike, where the perceived harm is primarily economic damage to the nation.77 Since the right to freedom of association covers not only the right to form an association but its activities, 78 the purpose of restricting any of those activities in domestic law must be one compatible with Article 22(2). The domestic law asserted in support of the dissolution of the NGO ‘Viasna’ in Belyatsky et al. v. Belarus had numerous aims, many of them 74 Jeong Eun Lee v. Korea, CCPR/C/84/D/1119/2002, 20 July 2005 [7.2]. 75 Zaidov v. Tajikistan, CCPR/C/122/D/2680/2015, 4 April 2018 [9.9]. 76 Bossuyt, Guide to the ‘Travaux Préparatoires’, p. 430; E/CN.4/L.146 (GB); A/2929 (1955), Ch.VI. p. 56 [151]. 77 Nowak, CCPR Commentary, p. 506. 78 Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011 [8.2]; Korneenko et al. v. Belarus, CCPR/C/88/D/1274/2004 31 October 2006 [7.2].

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public order-related. Viasna monitored the human rights situation in Belarus and prepared alternative human rights reports on Belarus for UN treaty bodies. Its dissolution was prescribed by law, for ‘repeated commission of gross breaches of the law’, but this did not answer whether the grounds for dissolving it were compatible with any of the Article 22(2) criteria. Following the principle established in Jeong-Eun Lee v. Korea that the State must demonstrate necessity to avert a real and not only hypothetical danger, and in view of the severe consequences of dissolution both for the exercise of associational rights and legal liability for operating an unregistered association in Belarus, the Committee found its dissolution to be disproportionate.79 Registration procedures in the interests of public order commonly entail filing of constitutional documents disclosing the purpose and objects of the entity, but in some countries they are frequently abused to prevent the emergence of associations and to suppress their activities.80 The disproportionate consequence of failing to comply with simple formalities may include the loss of associational benefits of the organisation, and in more extreme cases may incur criminal and administrative liability for individual members who carry out its activities. The claim in Nikolai Kungurov v. Uzbekistan arose because authorities returned an NGO’s application for registration ‘without consideration’ for non-compliance with two domestic law requirements (a single shortcoming would suffice under domestic law): first, it was not permitted to engage in any human rights activities that any official body was engaged in (the authorities did not specify how this was not met); secondly, the entity must be physically present in every region of Uzbekistan in order for it to be granted national status authorising it to disseminate information nationwide. No argument was advanced as to why it would be necessary to condition the registration of an association on such requirements. The consequences of the denial of registration for these administrative shortcomings were severe both in terms of limiting the author’s exercise of the freedom and the significant legal liability he incurred if he did.81 A further aspect of this case concerned the Article 19 right to access information (about human rights situations in Uzbekistan) and to impart that information to the public. It raised the important question of the interrelation between the rights of individuals and the associations through which they are exercised. The Committee took from Sister Immaculate Joseph et al. v. Sri Lanka that ‘the 79 Belyatsky et al. v. Belarus, CCPR/C/90/D/1296/2004, 24 July 2007 [7.3], [7.5]. See also on consequences Sergey Kalyakin v. Belarus, CCPR/C/112/D/2153/2012, 10 October 2014 [9.2] [9.3]; Zvozskov et al. v. Belarus, CCPR/C/88/D/1039/2001, 17 October 2006 [7.3]; Katsora et al. v. Belarus, CCPR/C/100/D/1383/2005, 25 October 2010 [8.3]. 80 See, e.g., Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011 [8.5] [8.7]; Mikhailovskaya and Volchek v. Belarus, CCPR/C/111/D/1993/2010, 24 July 2014 [7.4] [7.5]. 81 Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011 [8.5] [8.7].

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freedom of expression rights of individuals are implicated in their efforts to communicate through associations and are thus protected by Article 19’,82 and from Keun-Tae Kim v. Korea and Tae Hoon Park v. Korea that, since freedom of expression is of paramount importance in any society, any restrictions to its exercise must meet a strict test of justification.83 Given that the State did not advance arguments against Article 19(3) criteria to justify de facto restrictions on the right to freedom of expression, it considered that the return of the application ‘without consideration’ was in a violation of Article 22(1), read together with Article 19(2).84 In Katsora v. Belarus there was similarly a close nexus between Articles 19 and 22 in laws which prohibited engaging in the activities of unlawful associations. Sanctions were imposed for distributing leaflets under such laws, which were obstacles to the exercise of the freedom to impart information guaranteed by Article 19(2).85 The Committee has consistently challenged States over the compatibility with Article 22 of laws requiring prior authorisation for exercising freedom of association,86 the imposition of penalties for operating unregistered associations,87 the lack of a right to appeal against a refusal,88 impediments when applying for registration,89 and the broad and vague grounds for cancelling registration.90 The Committee has also voiced its concern about broadly worded legislation which criminalises certain forms of association.91 Registration procedures may also give rise to issues under Article 18 for religious and other belief-based organisations.92 82 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [7.2]. 83 Keun Tae Kim v. Korea, CCPR/C/64/D/574/1994, 4 January 1999; Tae Hoon Park v. Korea, CCPR/C/64/D/628/1995, 3 November 1998 [10.3]. 84 Kungurov v. Uzbekistan, CCPR/C/102/D/1478/2006, 20 July 2011 [8.8] [8.9]. 85 Katsora v. Belarus, CCPR/C/99/D/1377/2005, 19 July 2010 [7.2]. A similar distinction arises between the freedoms of expression and assembly (see chapter on Article 21: Freedom of Assembly, section ‘Introduction’). 86 E.g., Chad CCPR/C/TCD/CO/1 (2009) 29 (freedom of association and peaceful assembly could not be exercised without prior authorisation). 87 E.g., Libya CCPR/C/LBY/CO/4 (2007) 24 (death penalty); Tanzania CCPR/C/TZA/CO/4 (2009) 23 (severe penalties for operating an unregistered organisation). 88 E.g., Algeria CCPR/C/DZA/CO/3 (2007) 25; Lao CCPR/C/LAO/CO/1 (2018) 35. 89 E.g., Tunisia CCPR/C/TUN/CO/5 (2008) 21; Azerbaijan CCPR/C/AZE/CO/4 (2016) 40; Moldova CCPR/C/MDA/CO/3 (2016) 37; Morocco CCPR/C/MAR/CO/6 (2016) 41; Turkmenistan CCPR/C/TKM/CO/2 (2017) 46; Bahrain CCPR/C/BHR/CO/1 (2018) 57; Gambia CCPR/C/GMB/CO/2 (2018) 43. 90 E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 39; Turkmenistan CCPR/C/TKM/CO/2 (2017) 46. 91 E.g., Honduras CCPR/C/HND/CO/1 (2006) 13 (concern over the broad wording of the Criminal Code, which established the offence of ‘unlawful association’); Spain CCPR/C/ESP/CO/5 (2009) 19 (freedom of association could be unjustifiably hindered by prosecutions for the offences of association and collaboration with terrorist groups); Spain CCPR/C/ESP/CO/6 (2015) 25 (the use of vague and ambiguous terms in some provisions limiting freedom of association). 92 See chapter on Article 18: Freedom of Thought, Conscience and Religion, section ‘Registration’.

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Protection of Public Health or Morals The State attempted to defend, on public health grounds, its refusal to register the Minsk Vaishnava community as a religious association in Malakhovsky v. Belarus. An approved legal address was a precondition for registration, which in this instance had to satisfy health and fire safety standards appropriate for purposes such as religious ceremonies. This constituted a clear restriction on their freedom to manifest their religion because only a ‘religious association’ could undertake certain activities such as inviting foreign clerics to visit, or establishing monasteries or educational institutions. Because the Committee found a violation of Article 18 it did not consider the matter under Article 22 as well. However, its reasoning is of value to the present discussion.93 Shortly after one of the early domestic appeals against the refusal to register the community Belarus added a further, profound, restriction on registration, that the applicant must have been active in Belarus for at least twenty years, and there must be at least ten ‘communities’ then existing. This did not form part of the claim before the Committee, but in her Individual Opinion Ruth Wedgwood drew attention to the ‘highly problematic’ nature of this new ‘grandfathering’ rule, as an added obstacle: It is hard to imagine why a newer faith should be forbidden to engage in religious education, and thus the demand for 20 years of prior practice is doubtful. It is difficult to fathom why 10 ‘communities’ could be a prerequisite to educational activity, especially since one ‘community’, such as that in Minsk, may be larger than many small separate communities . . . This right [under Article 18] is not limited to old and established religions, or to large congregations, and it is fundamental to the freedom of religious conscience.94

The observations on the limitation ground ‘morals’, discussed in the chapters on Article 19: Freedom of Expression and Article 21: Freedom of Assembly, would generally apply to Article 22 as well. Protection of the Rights and Freedoms of Others As already noted (see section ‘Necessary in a Democratic Society’, this chapter, above) the State is bound to intervene in instances where associations advocate national, racial or religious hatred within the meaning of Article 20(2), as well as when this is required under Article 4(b) of ICERD. The rationale includes the rights and freedoms of others. In all such instances the necessity of the restriction must still

93 Malakhovsky and Pikul v. Belarus, CCPR/C/84/D/1207/2003, 26 July 2005 [7.7]. See chapter on Article 18: Freedom of Thought, Conscience and Religion, section ‘Public Safety’. 94 Individual Opinion by Ms Ruth Wedgwood (concurring) in Malakhovsky.

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be demonstrable, and States must adopt the least restrictive available means of intervention. Members of the Armed Forces and the Police In the drafting of Article 22 in the Commission on Human Rights a British proposal was that nothing should prevent the imposition of lawful restrictions on the exercise of the right of association by members of the armed forces, of the police or of the administration of a State. Some argued that this was not necessary (‘national security’ and ‘public order’ were sufficient to serve that purpose). It became clear that the purpose was not to deny the enjoyment of the right to particular persons, but merely to limit the choice of associations, and particularly the extent to which they might engage in trade union activities, such as the right to strike. The proposal was adopted with respect to members of the armed forces and police but not other members of State administration.95 The limitation provisions to this effect in Article 22(2) of the Covenant and Article 11 of the European Convention are in similar terms so that (to quote from Article 22) the Article ‘shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right’.96 Unlike Article 11 of the European Convention, which covers the freedoms of association and assembly, this qualification applies under the Covenant only to Article 22, not Article 21. The reference to ‘lawful’ restrictions requires them to be clearly defined in a law in the formal sense.97 However, the purpose of the restrictions must be founded on the special characteristics of the armed forces and police, and must not impair the essence of the right to organise.

A RT I C L E 2 2 ( 3 ) : TH E I L O C O N V E N T I O N S The inclusion of Article 22(3) is anomalous and may have occurred more for reasons of appearance than substance to acknowledge (at the instigation of France) the achievements of the ILO in protecting union rights.98 Article 22(3) held a place of special significance in the Dissenting Opinion of five Committee members in J.B. et al. (Alberta Union) v. Canada. Although the majority declared the communication inadmissible because the right to strike was 95 A/2929 (1955), Ch.VI. p. 56 [151]; Bossuyt, Guide to the ‘Travaux Préparatoires’, p. 430. 96 For further discussion under the European Convention, see Filip Dorssemont, ‘The Right to Take Collective Action under Article 11 ECHR’, in Filip Dorssemont, Klaus Lörcher and Isabelle Schoemann (eds), The European Convention on Human Rights and the Employment Relation (Hart Publishing, 2013), ch. 13. 97 Nowak, CCPR Commentary, p. 509. See also discussion above, section ‘Prescribed by Law’. 98 Nowak, CCPR Commentary, p. 511. See also A/2929 (1955), Ch.VI. p. 56 [152].

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not protected by Article 22(1), those dissenting chose to interpret Article 22 consistently with the ILO Convention concerning Freedom of Association and Protection of the Right to Organise. They noted the decision of the ILO Committee on Freedom of Association, to the effect that the general prohibition of strikes for public employees in the relevant Alberta Public Service legislation was not in harmony with Article 10 of that ILO Convention, based on the furtherance and defence of the interests of trade-union members, and that this corresponded with the purpose of joining a trade union under Article 22 to protect one’s interests. They also observed that Article 22(3) provides that nothing in Article 22 authorises a State Party to the ILO Convention to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. They could not see that a manner of exercising a right that has, under certain leading and widely ratified international instruments, been declared to be in principle lawful, should be declared to be incompatible with the Covenant.99

I M P L E M E N TAT I O N The requirements for implementation of Article 22 are comparable to those under Articles 19 and 21, in requiring strict observance of the terms of limitation, both in law and in practice, and instances of Committee criticism for failure to do so have already been mentioned above in section ‘Terms of Limitation’. Similarly with the pressure to remove reservations and declarations.100

C O N C L US I O N The Committee’s jurisprudence under Article 22 is much less voluminous than that under each of Articles 18, 19 and 21, but the principles adopted under all those provisions, particularly in recent years, bear striking similarity. This is inevitable given their close interrelation as expressive freedoms. It is especially evident in the importance attached to each of the respective freedoms, and in the strict standards to be applied when interpreting the limitation provisions. It is reflected in such decisions as Kungurov v. Uzbekistan in which the Committee explained that the freedom

99 Individual Opinion of Mrs Higgins and Messrs Lallah, Mavrommatis, Opsahl and Wako in J.B. et al. (Alberta Union) v. Canada, Communication No. 118/1982, Supp. No. 40 (A/41/40) at 151 (1986), 18 July 1986 [7] [8]. 100 E.g., France A/38/40 (1983) 296; New Zealand (Cook Islands) A/40/40 (1985) 445; Belgium A/ 43/40 (1988) 468; France A/43/40 (1988) 397; India CCPR/C/79/Add.81 (1997) 14; Belgium CCPR/C/BEL/CO/5 (2010) 7; Malta CCPR/C/MLT/CO/2 (2014) 6; Korea CCPR/C/KOR/CO/ 4 (2015) 55; Lao CCPR/C/LAO/CO/1 (2018) 9, 10.

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of expression rights of individuals are implicated in their efforts to communicate through associations, and that since freedom of expression is of paramount importance in any society, any restrictions to its exercise must meet a strict test of justification. The strict test of justification required the State in Jeong-Eun Lee v. Korea to demonstrate the necessity of averting real (not merely hypothetical) dangers, and to show that less intrusive measures would be insufficient to achieve the same purpose. The mere existence of reasonable and objective justifications for limiting the right to freedom of association was not enough, a point that may be heeded by the many jurisdictions which formulate legislation to restrict rights on that basis. The term ‘reasonable’ had even been specifically excluded in the drafting of the limitation text. Of recurring importance are the far-reaching consequences of seemingly narrow restrictions on associations, such as registration or other formalities, particularly where they prevent the emergence of interest groups, suppress their activities or entirely defeat the enjoyment of associational rights. The effects of Article 22 restrictions often include significant and deliberate impingement on other fundamental rights such as those in Articles 19 and 25. The situation for many individuals is further aggravated by liability for contravening domestic prohibitions. Interference which prevents the formation of associations could only be justified in extremis. Consistent with Article 20(2) of the Universal Declaration, participation in an association under Article 22 is voluntary. Although the text does not specify that no one may be compelled to join an association, it inheres within the freedom and may be asserted compatibly with the freedom of conscience in Article 18, in step with European Court decisions.

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Article 23: Protection for the Family

INTRODUCTION ARTICLE 23(1): PROTECTION FOR THE FAMILY ARTICLE 23(2): THE RIGHT TO MARRY AND TO FOUND A FAMILY ARTICLE 23(3): FULL CONSENT REQUIRED OF THE INTENDING SPOUSES ARTICLE 23(4): EQUALITY OF RIGHTS AND RESPONSIBILITIES OF SPOUSES AS TO MARRIAGE, DURING MARRIAGE AND AT ITS DISSOLUTION/NECESSARY PROTECTION FOR CHILDREN ON MARRIAGE DISSOLUTION IMPLEMENTATION CONCLUSION

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Covenant Article 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. Comparable Provisions in Other International Instruments European Convention: Article 12. American Convention on Human Rights: Article 17. African Charter on Human and Peoples’ Rights: Article 18.

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INTRODUCTION Position within the Covenant Article 23 has unusual status within the Covenant, prompting Nowak to describe it as ‘the most prominent provision in the Covenant containing an institutional guarantee i.e. protection of a status under private law as a human right’.1 Although Article 23 protects the family unit, it is no less a human right in the hands of the individual. It bears some similarity to Article 17, which protects against unlawful or arbitrary interference with a person’s family, but serves a distinct purpose. Commenting on the distinction between the two provisions, Fernando Volio noted that ‘Article 17 took account of the family and provided for the privacy of its members. It underscored the importance of this particular human grouping and reinforced its unique solidarity. In Article 23, the Covenant elevates the role of the family to prominence in the social scheme.’2 Protection for the family has practical, positive significance. The 2030 Agenda for Sustainable Development identified the potential of families to contribute to the eradication of poverty and the creation of just, inclusive and secure societies.3 The Agenda highlighted the role of families as development actors and expressly committed States to provide children and youth with a nurturing environment for the full realisation of their rights and capabilities, including through cohesive communities and families.4 In part out of concern that the contribution of the family in society and in the achievement of development goals was being overlooked, in July 2015 the Council, in a reaffirmation of the text of Article 23(1), requested the High Commissioner to prepare a report on the impact of the implementation by States of their obligations concerning the protection of the family, and invited them to consider mainstreaming the promotion of familyoriented policies as a cross-cutting issue in national development plans and programmes.5 That the family is the foundation of society was never questioned in the drafting of Article 23, nor in equivalent text in Article 16 of the Universal Declaration and Article 10 of the ICESCR because, as Volio put, it was ‘self-evident, even axiomatic’.6 Writing in 2005, Nowak suggested that the ‘claim’ by this unit to 1 Nowak, CCPR Commentary, p. 514 (fns omitted, original emphasis). 2 Volio, ‘Legal Personality, Privacy, and the Family’, p. 185, at p. 200. 3 Transforming Our World: the 2030 Agenda for Sustainable Development, 21 October 2015, GA A/RES/70/1. 4 A/HRC/31/37 (2016) (Report of the High Commissioner for Human Rights, Protection of the Family: Contribution of the Family to the Realization of the Right to an Adequate Standard of Living for its Members, Particularly Through its Role in Poverty Eradication and Achieving Sustainable Development) [18]. 5 Human Rights Council Resolution A/HRC/29/L.25, 1 July 2015. Report at A/HRC/31/37, 29 January 2016. 6 Volio, ‘Legal Personality, Privacy, and the Family’, p. 200. Writing in 1981, Volio expanded on the basis of that assumption at pp. 200 1, citing Albert Verdoodt, in E. Warny (ed.), Naissance et

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protection by society and the State (‘which is to a great extent defined by biological factors but is nevertheless ultimately a social-political one’) reveal a certain basic, conservative fear of socio-political changes in the natural order. The guarantee within Article 23(1) functions to shield the family as the cornerstone of the entire social order from trends towards disintegration. It is directed against extremely collectivist social forms in which the traditional functions of the family, such as raising children, are shifted in whole, or to a large extent, to State institutions.7 Article 23 was included in the Covenant as the result of a request by the Commission on the Status of Women that Article 16 of the Universal Declaration be incorporated.8 As a result, Article 23(1) was taken from Article 16(3), and Article 23(2) and (3) was adapted from Article 16(1) (first sentence) and (2). Article 23 is far more extensive than its counterpart in Article 12 of the European Convention, which is confined to scope comparable with that of Article 23(2), in ‘the right to marry and to found a family, according to the national laws governing the exercise of this right’. Interaction between Article 23 and Other Covenant Provisions Article 23 is closely supported by, and itself supports, numerous other Covenant provisions. Among many examples are its coincide with: Article 3, in the differential treatment of women in matters of family inheritance, property ownership, residence, the transmission and acquisition of nationality, domestic violence (including marital rape), and consent to marriage (e.g., if required to be given by a male family member or guardian);9 Article 6, in the incidence of suicide by those unable to escape forced marriages;10 Article 8, as it concerns forced marriage as a form of servitude;11 Article 10, in difficulties encountered by families wishing to

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Signification de la Déclaration Universelle des Droits de L’Homme (Société d’Études Morales, Sociales et Juridiques, (1964) 150, 162 70): ‘The family supports and cements the social structure, organizing individuals on the basis of the most simple cell, that of parents and children. Article 23, then, refers to “the nuclear family,” the group “consisting of two adults of different sexes and their descendants, all of whom live under the same roof,” which “is the primary group most important to man”; in it is realized “his socialization and humanitization in the sense of acculturation (the process of apprenticeship to acquire the culture of one’s group).” Society should protect these vital nuclei for its own benefit. But paradoxically and suicidally, society and the state have sometimes attacked the family in moments of collective, pathological aberration.’ Nowak, CCPR Commentary, p. 516. 8 A/2929, Ch.VI [153]. Chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, sections ‘Equality of Rights and Responsibilities of Spouses (Marriage, during Marriage and Dissolution)’, and ‘Other Personal Laws’. E.g., Pakistan CCPR/C/PAK/CO/1 (2017) 41. See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour, sections ‘Article 8(2): Servitude’, ‘Forced Marriage’.

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visit their relatives in prison;12 Article 16, when marriages are not registered,13 or children are not registered at birth (in combination with Article 24),14 including because they were born outside marriage owing to the stigmatisation faced by single mothers;15 Article 18, in restrictions on marriage outside one’s faith; and Article 26, in the numerous instances of sexuality-based discrimination affecting family and marriage,16 and other less prominent status-based discrimination faced by those with intellectual disability who are stripped of their right to marry.17 There is a particularly close intersection between Article 23(1) and Article 17 in cases of family separation resulting from deportation in the enforcement of immigration laws; the destruction of family homes and forced eviction (also invoking Article 27 where this affects minorities);18 and in HIV testing when required to enter into marriage.19 Articles 23(1) and 24 have concurrent application when deportation occurs with insufficient regard for protective measures required for children; in the custody and care of children;20 and in protection against early marriage.21 Chapter Outline This chapter addresses each of the constituent elements of Article 23 in turn, adopting thematic headings where this aids discussion.

12 E.g., Cameroon CCPR/C/CMR/CO/5 (2017) 29. For recent attention to this issue, see Stephanie Lagoutte, ‘The Right to Respect for Family Life of Children of Imprisoned Parents’, (2016) 24(1) Int. J Child Rts, p. 204. 13 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 14 (unregistered religious marriage (kabin)). 14 See chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, sections ‘Equality of Rights and Responsibilities of Spouses (Marriage, during Marriage and Dissolution)’, and ‘Other Personal Laws’. See also chapter on Article 18: Freedom of Thought, Conscience and Religion, section ‘Parental and Guardianship Rights: Article 18(4)’. 15 E.g., Gambia CCPR/C/GMB/CO/2 (2018) 47. See also El Salvador CCPR/C/SLV/CO/7 (2018) 39 (obstacles to birth registration, in particular, those affecting families living in poverty, including registration fees, fines and the requirement for mothers who have given birth outside a hospital to obtain proof of delivery). 16 For issues of discrimination, see chapter on Article 26: Equality before the Law Equal Protection of the Law, section ‘Sexual Orientation, Gender Identity, Transgender Status’; and of criminalisation of consensual same sex relations, see chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘Key Elements of Article 17’, ‘Sexual Activity’. 17 Bulgaria CCPR/C/BGR/CO/4 (2018) 17. 18 See sections ‘Family Separation and Reunification’ and ‘Destruction of Family Homes and Eviction’, this chapter, below. 19 E.g., Turkmenistan CCPR/C/TKM/CO/2 (2017) 32. 20 See sections ‘Custody and Care of Children’ and ‘Action or Failure by Courts, Administrative Bodies and Enforcement Officers to Secure the Protection of Children’, this chapter, below. 21 See section ‘“Of Marriageable Age”’, this chapter, below.

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A RT I C L E 2 3 ( 1 ) : PR O T E CT I O N FO R T H E FA M I LY Protection by Society and the State The ‘family’ is the direct beneficiary of protection under Article 23(1), with the intention that this may be asserted as an individual human right.22 As a ‘protective’ provision, it has something in common with Article 24(1) under which every child is entitled to such measures of protection as are required by their status as a minor. Protection in both cases is to be accorded by ‘society and the State’, though Article 24(1) also requires protection on the part of the child’s ‘family’, which indirectly reinforces the role of the family under Article 23. Human rights protection from the State is a standard expectation, but not from ‘society’. In the Commission on Human Rights, Belgium proposed an amendment to what ultimately became Article 23(1) stating that the family had a right to be protected ‘by society and the State’,23 but it did not succeed given other drafting proposals at that time. In the Third Committee, the USSR proposed the addition of the same words. The United Kingdom believed this was unnecessary because it was already implicit, but the USSR argued that unless it was stated explicitly that it was for the State and society to protect the family, which was a natural unit of society and the fate of which might determine the fate of a nation, a family in need of protection would not know where to turn.24 Referring to that USSR amendment, the Netherlands delegate agreed that society and the State were responsible for protecting the family. However, he was afraid that to adopt that amendment might give governments a pretext to interfere with the natural rights of the family which were, in his opinion, beyond the reach of State laws. He could not therefore vote in favour of the USSR amendment.25 Poland lent support to the USSR by referring to countless cases in which the family needed the protection of society and the State. The family had to be assisted through special provisions relating to expectant mothers, nurseries for infants, food priorities in emergencies in underdeveloped countries, and so on.26 The proposal was put to the vote in two parts ‘by society’ ‘and the State’, and each was adopted.27 In the light of the more recent emphasis on the contribution of the family in society and in the achievement of development goals, it would appear that society’s protective role serves its own broader interests. 22 For an introduction to family rights, see Sandy Ghandhi, ‘Family and Child Rights’, in D. J. Harris and S. Joseph (eds),The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, 1995), p. 491, at pp. 492 6. 23 E/CN.4/SR.58 (1948) p. 11 (for the text of the amendment, 3/CN.4/103: ‘The family, based on marriage, is the fundamental unit of society. Since on these grounds it has certain inalienable and indefeasible rights, it shall be protected by society and the State’). 24 A/C.3/SR.124 (1948) p. 366 (for the text of the amendment, A/C.3/287, E/800). 25 A/C.3/SR.125 (1948) p. 368. 26 A/C.3/SR.125 (1948) p. 371. 27 A/C.3/SR.125 (1948) p. 377. The words ‘by society’ were adopted by twenty two votes to thirteen; ‘and the State’ were adopted by twenty five votes to twelve, with five abstentions.

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The drafting background still leaves much unexplained about the expectations of Article 23(1), and how it is to be implemented, especially in relation to protection by ‘society’. The Committee’s jurisprudence more clearly indicates the standard of protection required by ‘the State’ than by ‘society’, but much of it is derived from related provisions such as Article 17. Definition of the ‘Family’ In General Comment 16 on Article 17,28 and in General Comment 19 on Article 23,29 the family is to be interpreted broadly, a point also made by the Committee in its OP1 decisions.30 A similarly wide concept of family has been adopted by the CESCR,31 the Committee on the Elimination of Discrimination against Women,32 and the CRC.33 The definition of the ‘family’ received attention in Ngambi v. France. The State argued that there was no ‘conjugal life’ to support a family reunification claim and that the documents attesting to the authors’ family relationship were fabricated. The Committee explained that protection of the family is not necessarily obviated by the absence of formal marriage bonds, especially where there is a local practice of customary or common law marriage. Nor is it necessarily displaced by geographical separation, infidelity or the absence

28 CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988, adopted at the Thirty second Session of the Human Rights Committee [5] (the objectives of the Covenant require that for purposes of Art. 17 [the term ‘family’] be given a broad interpretation to include all those comprising the family as understood in the society of the State Party concerned). 29 GC 19 [2]. (The concept of the family may differ in some respects from State to State, and even from region to region within a State, and it is therefore not possible to give the concept a standard definition. However, the Committee emphasised that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in Art. 23.) 30 See, e.g., Dauphin v. Canada, CCPR/C/96/D/1792/2008, 28 July 2009 [8.3]; Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.7]. See also General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/ Rev.1/Add.10, adopted at the Sixty eighth Session of the Human Rights Committee, on 29 March 2000 (GC 28) [27] (in giving effect to recognition of the family in the context of Art. 23, it is important to accept the concept of the various forms of family, including unmarried couples and their children and single parents and their children, and to ensure the equal treatment of women in these contexts). 31 CESCR, General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant), 13 December 1991, E/1992/23 [6]; CESCR General Comment No. 5: Persons with Disabilities, 9 December 1994, E/1995/22, 9 December 1994 [30]. 32 Committee on the Elimination of Discrimination Against Women, General Recommendation No. 21: Equality in Marriage and Family Relations, adopted at the Thirtieth Session of CEDAW, 1994 (contained in Document A/49/38 (1994)) [13]. 33 CRC, General Comment No. 7 (2005): Implementing Child Rights in Early Childhood, 20 September 2006, CRC/C/GC/7/Rev.1, adopted at its Fortieth Session, 12 30 September 2005 [15].

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of conjugal relations. The crucial point was that ‘there must first be a family bond to protect’.34 It was inevitable to the Committee in Hendriks, Sr. v. Netherlands that ‘the family’ should refer not solely to the family home as it existed during marriage but also after marriage has legally ended, since the bond uniting father or mother and child does not depend on the continuation of the parents’ marriage.35 It would seem that ‘the family’ is nevertheless capable of ceasing. The author in A.S. v. Canada wanted Canadian authorities to allow her daughter and grandson to enter Canada in order to join her there but this was refused. The Committee was unable to reach the conclusion that her daughter and grandson shared an effective family life with the author, for Article 23 purposes, since her daughter had lived in Canada for only two years after being adopted by the author, and since then her daughter had lived in Poland where she married and had a son. The fact that the author and her daughter lived apart for seventeen years clearly demonstrated to the Committee that a prolonged family life did not exist.36 Even within the Committee’s early jurisprudence the term ‘family’ extended to relationships of cohabitation. In response to a father’s claim concerning denial of family rights in a child custody award in Balaguer Santacana v. Spain the State contended that the author was not part of a ‘family’ because the relationship was between a 44-year-old married man (the author) and a 17-year-old minor, which was never placed on firm legal grounds, it consisted of no more than cohabitation, of limited duration, ending shortly after the birth of their child. Instead of being deemed a ‘fundamental [element] of society’ entitled to ‘protection by society and the State’ the State urged that the proper characterisation of the relationship should be bigamy. The Committee drew on Hendriks to clarify that the term ‘family’ must be understood broadly, to refer ‘not solely to the family home during marriage or cohabitation, but also to the relations in general between parents and child . . . Some minimal requirements for the existence of a family are however necessary, such as life together, economic ties, a regular and intense relationship, etc.’37 In the context of a husband-and-wife relationship the Committee came to the conclusion in Aumeeruddy-Cziffra and Others v. Mauritius that common residence was the normal behaviour of a family so that the exclusion of one spouse from the country was an interference under Article 17(1). In principle, the same applies under Article 23.38 That case also confirmed, if confirmation were needed, that a child is not needed to constitute a family. 34 35 36 37 38

Ngambi v. France, CCPR/C/81/D/1179/2003 (2004), 9 July 2004 [6.4]. Hendriks, Sr. v. Netherlands, CCPR/C/33/D/201/1985, 27 July 1988 [10.3]. A.S. v. Canada, CCPR/C/12/D/68/1980, 31 March 1981 [5.1]. Santacana v. Spain, CCPR/C/51/D/417/1990, 15 July 1994 [7.6] [7.7], [10.2]. Aumeeruddy Cziffra et al. v. Mauritius, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(i)2]; [9.2(b)2(ii)4] (violation of Arts 2(1), 3 and 26 in conjunction with Art. 23(1)).

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Cultural traditions are also important. The criteria for ‘the family’ was satisfied in Hopu and Bessert v. France and Articles 17(1) and 23(1) were violated in the forceful removal of the authors from a land tract in Tahiti, where their ancestors were buried, to make way for the building of a hotel complex. ‘The objectives of the Covenant require that the term “family” be given a broad interpretation so as to include all those comprising the family as understood in the society in question’, from which it follows that cultural traditions should be taken into account in a specific situation. The authors claimed the relationship to their ancestors was an essential element of their identity and played an important role in their family life. The State did not dispute this, but relied only on the authors’ failure to establish a kinship link between the remains discovered in the burial grounds and themselves. The Committee was swayed by the fact that the burial grounds in question pre-dated the arrival of European settlers and were recognised as including the forbears of the Polynesian inhabitants of Tahiti then present.39 Approaches to Article 23 in Different Circumstances This section will consider the Committee’s findings in situations of family separation in a range of circumstances, including deportation under immigration laws (including in consequence of visa breach, criminality or risk to national security); denial of family reunification (often related to custody and access, but also occurs when residence in a country is denied to a family member); destruction of family homes and eviction; and State intervention when a parent is not able to care for their child, or ill-treats or neglects their child.

Family Separation and Reunification Deportation cases which result in family disruption tend to be strongly led by an Article 17 analysis, with little to distinguish the separate bases of Article 17 and 23 findings. These are discussed more fully in the chapter on Article 17.40 There has been a tendency in the past for the Committee to favour findings of violation under Article 17 ‘in conjunction with’ Article 23,41 but in more recent 39 Hopu and Bessert v. France, CCPR/C/60/D/549/1993/Rev.1, 29 July 1997 [10.3]. 40 See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘“Arbitrariness”’, ‘Objective Justification in the Light of the Reasons for Interference and the Degree of Hardship’ and ‘Family’, ‘Family Separation on Deportation’. 41 E.g., Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.8]; (violation of Art. 17(1), in conjunction with Art. 23, in respect of all of the authors (and of Art. 24(1) in relation to the four minor children)); D.T. v. Canada, CCPR/C/117/D/2081/2011, 15 July 2016 [7.10] (violation of Art. 17(1), read alone and in conjunction with Art. 23 (1)); Leghaei et al. v. Australia, CCPR/C/113/D/1937/2010, 26 March 2015 [10.5] (violation of Art. 17, read in conjunction with Art. 23, and, as a result, the rights of his family under those provisions). (In Winata and Li v. Australia, CCPR/C/72/D/930/2000, 26 July 2001 there was discrepancy between [7.3] (arbitrary interference with the family, contrary to Art. 17(1), in conjunction with Art. 23) and [8] (violation of Arts 17, 23, paragraph 1).)

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years it appears to show greater willingness to make independent findings under each.42 This more positive approach to Article 23 has not, however, been accompanied by any fuller explanation of how Article 23 is actuated. When both provisions have been in play the Committee’s analysis is predominantly driven by the Article 17 framework, with little independent rationale for the Article 23 finding. Although it is possible to conclude in certain findings of violation that the ‘arbitrary interference in the family’ relevant primarily to Article 17 coincided with the lack of protection to which the family was entitled under Article 23, exactly how the latter was constituted has not been well explained. This has obscured the separate characteristics of Article 23 in such instances, in particular, the means of positive protection to which the family is entitled.43 (When there has been no violation the Committee has been equally economical in its Article 23 explanation, in Canepa v. Canada, for example, adding to the Article 17 analysis the comment that ‘the facts of the case do not raise an issue under article 23’.44) The influence of Article 17 on Article 23 is also manifest in the extension of the ‘interference’-based approach, essential to Article 17 (because of its text), to Article 23(1). It is a function of the frugality in the Committee’s Article 23 assessment, which almost always comes after the Article 17 conclusion. It is easier to understand this pattern when both Articles 17 and 23 are engaged, as they were in decisions such as Bakhtiyari and Bakhtiyari v. Australia, Dauphin v. Canada and Ilyasov v. Kazakhstan when the Committee made Article 17 and 23 findings of ‘arbitrary interference in the family . . . in violation of articles 17, paragraph 1, and 23, paragraph 1’.45 The Article 23 finding was obviously led by the finding of arbitrary interference prohibited by Article 17. It is less obvious why 42 E.g., Bakhtiyari and Bakhtiyari v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.6] (removal would constitute arbitrary interference in the family, in violation of Arts 17(1), and 23(1)); Dauphin v. Canada, A/64/40 vol. II (2009), Annex VII.SS, 427, 28 July 2009 [8.4] (deportation a violation of Arts 17 and 23(1)); Nystrom v. Australia, CCPR/C/102/D/1557/2007, 18 July 2011 [7.11] (deportation an arbitrary interference with the family in relation to the author, contrary to Arts 17 and 23(1)); Warsame v. Canada, CCPR/C/102/D/1959/2010, 21 July 2011 [8.10] (deportation if implemented, a violation of Arts 17 and 23(1) alone and in conjunction with Art. 2(3)); Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.7] (deportation if implemented, would violate Arts 17 and 23(1) alone and in conjunction with Art. 2(3)); Budlakotiv v. Canada, CCPR/C/122/D/2264/2013, 6 April 2018 [9.7] (deportation, if imple mented, would violate Arts 17 and 23(1)). 43 There is no equivalent reference to ‘interference’ in decisions on Art. 24(1), which most closely resembles Art. 23(1), in requiring ‘protection’. A shortcoming in the measure of protection required by Art. 24(1) is perhaps easier to recognise because of the clearer standards articulated in the case of children. See, e.g., De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [10.4]. 44 Canepa v. Canada, CCPR/C/59/D/558/1993, 3 April 1997 [11.5] [11.6], cf. [8] (the commu nication was admissible insofar as it appeared to raise issues under Arts 7, 12, paragraph 4, 17 and 23). 45 Bakhtiyari and Bakhtiyari v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [9.6] (arbi trary interference in the family of the authors, in violation of Arts 17(1) and 23(1)); Ilyasov v. Kazakhstan, CCPR/C/111/D/2009/2010, 23 July 2014 [7.3] (the issue thus arises whether or not such interference would be arbitrary and contrary to Arts 17 and 23), [7.7] (failure to justify

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‘interference’ should be an aspect of Article 23 when Article 17 had no application, for example, in the family reunification claim in El-Hichou v. Denmark in which the Committee found there was ‘interference with the family contrary to Article 23’.46 Nevertheless, it is clear that findings under Article 23 are shaped by an Article 17 analysis in situations to which Article 17 had recurrent application. When Articles 23 and 24 are considered together the outcome is sometimes expressed in terms of failure to fulfil relevant positive obligations, reflecting the protective function of both. In El Dernawi v. Libya the Committee addressed a family’s separation following confiscation of the passport belonging to the author’s wife, which prevented her move to Switzerland to join the author there after he had been granted refugee status: the State ‘failed to discharge its obligation under article 23 to respect the family unit in respect of each member of the family’, and on the same basis it was a violation of Article 24 in view of the advantage to a child’s development of living with both parents, in the absence of persuasive countervailing arguments from the State.47 Article 23 may be said to take on the chroma of companion Covenant provisions when invoked, such as when Article 23 is engaged in combination with Articles 17 or 24. The interference-based approach to Article 23 has merit in particular circumstances. There is no reason why a failure to provide Article 23 protection should not be constituted by ‘arbitrary interference’, but ideally the Committee’s reasoning would state its understanding of the protection required by Article 23, and identify the failure to meet that standard. This prompts some speculation as to the nature and extent of the protection which Article 23 accords. Arbitrariness within the Winata finding, for example, turned on the routine enforcement of immigration law in circumstances where additional factors required departure from it.48 This may be conceived either as interference (the ordinary enforcement of immigration law) or as breach of a positive obligation (the failure to suspend its ordinary enforcement when additional factors require). The way the State defended the allegation lent itself to a finding of breach of a positive obligation: it recognised the family to be a fundamental social unit, and its importance was given implicit and explicit recognition by allowing parents to apply for visas so

its interference with the right of the author as protected by Arts 17 and 23; the unjustified refusal to allow entry constitutes an arbitrary interference with the family, contrary to Arts 17 and 23). See also Dauphin v. Canada, A/64/40 vol. II (2009), Annex VII.SS, 427, 28 July 2009 [8.3] (it must therefore determine whether this interference was arbitrary and a violation of Arts 17 and 23(1); [8.4] (the interference, with drastic effects for the author was disproportionate and deportation therefore constitutes a violation of Arts 17 and 23(1)). 46 El Hichou v. Denmark, CCPR/C//99/D/1554/2007, 22 July 2010 [7.3] [7.5]. See chapter on Article 24: Protection Required for Children, section ‘Interference with the Family: Article 17; Protection for the Family: Article 23’. 47 El Dernawi v. Libya, CCPR/C/90/D/1143/2002, 20 July 2007 [6.3]. 48 Winata and Li v. Australia, CCPR/C/72/D/930/2000, 26 July 2001 [7.3].

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they could live with their children in Australia (as the authors had done) and by providing parents special privileges compared with other immigrants. The State therefore attributed characteristics of positive obligation to these aspects of family protection within immigration law. In any event, enforcement of immigration law has a function that conflicts with the protection owed to the family, when serving the interests of the State. Where there exists a barometric relationship between protecting the interests of the family and those of the State, misplaced enforcement could just as easily be treated as a failure in the State’s positive obligation, as direct State interference. In short, it is difficult to categorise certain measures constituting Article 23 violation exclusively as a failure of positive obligation, or as direct State interference. It is noteworthy, however, that the protection owed to the family has never been well articulated in the travaux préparatoires, or by the Committee in its jurisprudence or General Comment on Article 23. Claims based on interference with the family, whether under Article 17 or 23, are more likely to succeed if made on behalf of all members of the family. A factor in the failure of the author’s Article 17 and 23 claims in Byahuranga v. Denmark was that they were submitted solely in his own right, by reference to his rights only, and not also on behalf his wife or children.49 In spite of the inevitable family separation incurred by enforced disappearance, the Committee tends not to examine separately issues under Articles 17(1), 23 and 24, preferring instead findings under Articles 6, 7, 9 and 16.50 Family reunification has been a regular Article 23 issue in the reporting process, alongside other Covenant provisions. For example, the Committee has expressed its concern that in Denmark restrictions on family reunification for those under temporary protection status required a residence permit for more than the previous three years;51 in Norway, the conditions were excessive for family reunification where their objective was to prevent forced marriages;52 family reunification in Austria envisaged only nuclear family members in refugee cases, to the exclusion of dependent adult children, minor orphan siblings and others;53 in Zimbabwe, nationals were deprived of their former right to have their spouses registered as citizens, who in consequence may not be able to live in or enter Zimbabwe;54 in Switzerland, distinctions between citizens and non-citizens meant that foreign spouses of foreigners with residence permits were vulnerable to deportation if their cohabitation discontinued and they may be forced to live in abusive 49 Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, 1 November 2004 [11.7] [11.9] (the issue therefore arises whether or not such interference would be arbitrary or unlawful and thus contrary to Art. 17, read in conjunction with Art. 23(1)). 50 See, e.g., Sharma et al. v. Nepal, CCPR/C/122/D/2364/2014, 6 April 2018 [9.11]; Tharu et al. v. Nepal, CCPR/C/114/D/2038/2011, 3 July 2015 [10.11]. 51 Denmark CCPR/C/DNK/CO/6 (2016) 35 (Art. 23). 52 Norway CCPR/C/NOR/CO/6 (2011) 15 (Arts 2, 23 and 26). 53 Austria CCPR/C/AUT/CO/4 (2007) 19 (Arts 13, 17 and 23(1)). 54 Zimbabwe CCPR.C.79.Add.89 (1998) 19 (incompatible with Arts 17 and 23).

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relationships;55 there were long waiting periods in Israel for family reunion in the case of a marriage between an Israeli citizen and a non-citizen who was not Jewish (and therefore not entitled to enter);56 and in Estonia, entry into the country by non-citizens in a same-sex partnership, even when their partnership was officially recognised abroad and the partner was already resident in Estonia, was subject to an immigration quota system.57 Issues of family reunification coincided with the privacy aspects of Article 17 when DNA testing was used in some countries to establish affiliation.58

Destruction of Family Homes and Eviction As with family separation on deportation, Article 17 tends to lead the Article 23 finding in cases involving destruction of family homes and forced eviction.59 On the same facts and on reasoning attributable to Article 17 alone, the Committee made findings under Articles 17, 23 and 27 in Georgopoulos et al. v. Greece, when Roma dwellings were demolished (as part of a ‘cleaning operation’);60 and under Articles 17 and 23 in ‘I Elpida’ v. Greece, if the threatened eviction and the demolition of homes in which Greek Gypsies had lived for decades proceeded without due consideration to the consequences for them.61 (The Article 17 dimension of ‘home’ was emphasised more than that of ‘family’ in the claim, in similar circumstances, in Naidenova et al. v. Bulgaria and resulted in a finding under only Article 17.62) Violation was found of Article 17, but not Article 23, in two cases involving violent raids at homes (Aouali et al. v. Algeria, in which the family farm and home were completely destroyed;63 and Hmeed and Others v. Libya, in which the home was set on fire).64 However, both provisions were found to have been violated in Chiti v. Zambia because the illegal eviction and the destruction of the family’s 55 Switzerland CCPR/CO/73/CH (2001) 15 (Arts 2, 3, 9, 12, 17 and 23). 56 Israel CCPR/C/79/Add.93 (1998) 26 (Arts 17 and 23). For the refusal of access by Palestinians to visit relatives, see Israel CCPR/C/ISR/CO/3 (2010) 14, 16 and 21. 57 Estonia CCPR/C/EST/CO/3 (2010) 10 (Arts 2, 12, 17, 23, 26). 58 E.g., France CCPR/C/FRA/CO/4 (2008) 21 (Arts 17 and 23); Denmark CCPR/CO/70/DNK (2000) 15 (Denmark should ensure that such testing is used only when necessary and appropriate to the determination of the family tie (Arts 17 and 23)). 59 For decisions and Concluding Observations under Art. 17, see chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘Key Elements of Article 17’, ‘Home’. 60 Georgopoulos et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010 [7.3] (violation of Arts 17, 23 and 27 read alone and in conjunction with Art. 2(3)). 61 ‘I Elpida’ v. Greece, CCPR/C/118/D/2242/2013, 3 November 2016 [12.8] [13] (arbitrary inter ference with the authors’ homes and family life in violation of Arts 17 and 23, read alone and in conjunction with Art. 2(3)). 62 Naidenova et al. v. Bulgaria, CCPR/C/106/D/2073/2011, 30 October 2012 [14.7]. 63 Aouali et al. v. Algeria, CCPR/C/109/D/1884/2009, 18 October 2013 [2.2], [2.3], [7.8], [7.12] (in the light of findings under Arts 7 and 17, Art. 23(1) not considered separately). 64 Hmeed et al. v. Libya, CCPR/C/112/D/2046/2011, 17 October 2014 [6.6], [6.7] (in the light of the Art. 17 finding the Committee did not consider the Art. 23(1) separately).

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personal belongings had significant impact on the author’s family life, in ‘infringement on her family’s rights under articles 17 and 23, paragraph 1’.65 Cases involving unlawful interference with the home by virtue of forced entry by security forces without justification have not generally involved Article 23 consideration.66 Loss of the family home as a result of termination of a lifetime tenancy against a backdrop of discrimination against Croatian Serbs was an arbitrary interference with the home under Article 17, without a parallel finding under Article 23, in Vojnović v. Croatia.67

Custody and Care of Children In the absence of exceptional circumstances, it could not be deemed to be in the best interest of a child to eliminate altogether a parent’s access.68 The protective role of the law under Article 23 was clearly identified by the Committee in N.T. v. Canada in its statement that national courts are generally competent to evaluate the circumstances of individual cases, but that the law should establish certain criteria to enable the courts to apply the full provisions of Article 23. It was essential, other than in exceptional circumstances, that those criteria should include the maintenance of personal relations and direct and regular contact between child and parents.69 The process by which the domestic legal system reached a conclusion to deny the author’s access to her daughter altogether, without considering a less intrusive and less restrictive option, was a failure to protect the family unit, in violation of Article 23. The domestic court made an order for crown wardship (without access to the author) for the purpose of adoption. The judge considered that ‘there were no special circumstances demonstrated which would justify the continuation of access in these circumstances’, when it should instead have examined whether there were exceptional circumstances justifying terminating access. Given the need to ensure family bonds, it is essential that any proceedings which have an impact on the family unit deal with the question whether the family bonds should be broken, keeping in mind the best interests of the child and of the parents. The Committee did not consider that an incident of slapping the child, the author’s lack of cooperation with the Catholic 65 Chiti v. Zambia, CCPR/C/105/D/1303/2004, 26 July 2012 [12 8] (violation of Arts 17 and 23 read alone and in conjunction with Art. 2(3)). 66 See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘Home’, ‘Searches and Forced Entry’. 67 Vojnović v. Croatia, CCPR/C/95/D/1510/2006, 30 March 2009 [8.7] (violation of Art. 17 in conjunction with Art. 2(1)). 68 Fei v. Colombia, CCPR/C/53/D/514/1992, 4 April 1995 [8.10]. 69 N.T. v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.7]. For parallel issues under Art. 24, see chapter on Article 24: Protection Required for Children, sections ‘Article 24(1): Every Child Shall have the Right to Such Measures of Protection as are Required by His Status as a Minor’, ‘Child Access and Custody’.

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Children’s Aid Society engaged to help, and the author’s mental disability (which the author contested) constituted exceptional circumstances which would justify total severance of contact between the author and her child. The same facts also revealed a violation of Article 24 with respect to the daughter, who was entitled to additional protection as a minor.70 Profound irregularity on the part of the State in the conduct of care and custody proceedings in Martínez v. Paraguay together with other shortcomings, including in enforcement of court orders, provided the factual background common to findings under both Articles 23 and 24. The author’s family lived in Paraguay but moved to Spain where he was working. After his wife permanently left Spain and returned to Paraguay with their daughters, the author made numerous attempts to keep in contact with the children and to have them returned. He was granted care and custody of the girls by Spanish courts, and he made approaches to Paraguay with a view to protecting his rights under the Hague Abduction Convention. The proceedings he instituted in Paraguay for the return of his children to Spain resulted in rulings against him, taking account of the children’s best interests, and expressing the view that taking the children to Spain would put them at psychological risk given their young age. However, the court failed to explain its understanding of ‘best interests’ or ‘psychological risk’, or what evidence it considered in reaching the conclusion that such a risk existed. There was nothing to show that the author’s complaints concerning the children’s unsafe living conditions in Paraguay were duly examined. One of those courts took nearly four years to give its ruling. The Paraguayan courts also failed to secure compliance by the mother with the terms of access and custody granted. The author never received a reply to his application complaining about the mother’s neglect of the children and the situation of risk they were in, for which he sought temporary custody. In its findings the Committee did not differentiate between the failure in the family’s entitlement to protection under Article 23, in respect of the author and his daughters, and the failure to meet the standard of protection owed to the daughters, as minors, under Article 24(1).71 If procedural thoroughness is observed in custody and care matters the bases for a finding of violation may be greatly reduced. Buckle v. New Zealand concerned the author’s loss of guardianship rights over her six children because of her 70 Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.7]. See also Hendriks v. Netherlands, CCPR/C/33/D/201/1985, 27 July 1988 [10.4] (the unilateral opposition of one of the parents cannot, in the opinion of the Committee, be considered an exceptional circum stance). Note also the Individual Opinion of Sir Nigel Rodley and Mr Krister Thelin (dissenting) in X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011, emphasising the standard in Art. 3(1) of the Convention on the Rights of the Child that the best interests of the child are ‘a primary consideration’, not ‘the primary consideration’, and certainly not the only consideration. 71 Martínez v. Paraguay, CCPR/C/95/D/1407/2005, 27 March 2009 [7.3] [7.5]. See also Laing v. Australia, CCPR/C/81/D/901/1999, 9 July 2004 [7.3] discussed further in chapter on Article 24: Protection Required for Children, section ‘Child Access and Custody’.

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inability to look after them adequately. The removal of the children occurred under full judicial scrutiny, there were regular statutory reviews and an appeal was allowed to be brought by the author against court decisions. In spite of the weighty nature of the decision to separate mother and children, the authorities and the courts considered carefully all the material and acted with the best interests of the children in mind, so that nothing indicated that they violated their duty under Article 23. As to Article 24, the arguments and information presented did not raise issues that would be separate from that finding.72 The Committee also found there was no violation of Articles 17 and 23 when the domestic court in E.B. v. New Zealand failed to reinstate the author’s access to his children because of its conclusion that this would amount to an ‘unacceptable risk to the welfare of the children’. The Committee was influenced by the fact that the trial judge undertook a full and balanced evaluation of the situation.73 A significant aspect of claims under Articles 17, 23(1) and 24(1) in Rajan v. New Zealand, which were not sufficiently substantiated, was the fact that the relevant decision of the authorities gave due consideration to the protection of the family and, more particularly, the protection of the children. The family was to be removed from New Zealand, once it became known that residence permits in Australia, on which residence permits were granted in New Zealand, were fraudulently obtained.74 The CRC in 2013 issued its important General Comment on the right of the child to have his or her best interests taken as a primary consideration.75

Action or Failure by Courts, Administrative Bodies and Enforcement Officers to Secure the Protection of Children The coincidence of a failure to live up to a positive obligation and a ‘negative’ act of interference, discussed above, also occured in Vicario v. Argentina.76 Article 24(1) was violated because of a court’s failure (in its obligation) to recognise the standing of the author in guardianship and visitation proceedings concerning her grandchild. The Committee expressed its view that there would also have been a violation of Article 17 (privacy and family life) in the numerous acts of arbitrary and unlawful interference with their privacy and family life, which also constituted violations of Articles 23(1), 24(1) and (2), in the abduction of the child, the falsification of her birth certificate, and her adoption by someone else, were it not for the fact that these acts occurred before Argentina was liable under the Covenant and OP1, and the claims were inadmissible ratione temporis.77 72 73 74 75

Buckle v. New Zealand, CCPR/C/70/D/858/1999, 25 October 2000 [9.1] [9.3]. E.B. v. New Zealand, CCPR/C/89/D/1368/2005, 16 March 2007 [9.5]. Rajan v. New Zealand, CCPR/C/78/DR/820/1998, 6 August 2003 [7.3]. General Comment No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration, adopted by the CRC Committee 29 May 2013, CRC/C/GC/14. 76 See section ‘Family Separation and Reunification’, above. 77 De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [10.4] [10.5].

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Treatment at the hands of officials was found to violate Articles 6, 7 and 17 in Pathmini Peiris v. Sri Lanka. Family members received death threats, following which police officers harassed the family in their home by threatening telephone calls and visits until they were forced into hiding. The author’s husband was later shot dead. Those acts also constituted a violation of Articles 6, 7 and 17 each read in conjunction with Article 23(1).78 There was some reluctance to make Article 23 and 24 determinations in Rojas Garcia v. Colombia, only findings of violation of Article 7 and 17 (the latter for ‘arbitrary interference in the home of the Rojas Garcia family’) in a raid on a family home in the night by a group of hooded armed officers some of whom came through the roof, and others by the front door. One officer fired a gun in a room where there were young children. The raid was on the wrong house. The Article 23 and 24 claims were inadmissible, because they were considered to be of a general nature, in spite of the evident lack of protection owed to the family, and to the young children (the author’s sister, who was an invalid, subsequently died, and the violent search was considered to be an indirect cause of her death).79 In M.S.P-B. v. Netherlands the denial of general child benefit to the author because of her alien residence did not violate Article 23 or 24. The author and her daughter were nationals of Suriname and would have returned but for the fact that her daughter had a rare metabolic deficiency and without access to a ketogenic diet, not available in Suriname, she would suffer a medical emergency or even die. Alternative benefits under a different scheme made specific financial provision for minors, and offered access to financial allowances, medical expenses, education and legal aid.80

A RT I C L E 2 3 ( 2 ) : TH E R I G H T TO M A R RY A N D TO F O U N D A FAM I LY The Right to Marry In the Commission on Human Rights some delegates argued for the inclusion of a clause similar to that found in Article 16 of the Universal Declaration prohibiting any discrimination on the right to marry and to found a family due to ‘race, nationality or religion’. It was also suggested that it should be extended to include a reference to ‘social origin or wealth’, and that the entire enumeration contained in Article 2 should be repeated. However, since Article 2 governed all Covenant articles no specific provision prohibiting discrimination was felt necessary.81 This 78 Peiris v. Sri Lanka, CCPR/C/103/D/1862/2009, 26 October 2011 [2.8], [7.6] [7.7] (violation of Arts 6, 7 and 17 alone, and of each read in conjunction with Art. 23(1)). 79 García v. Colombia, CCPR/C/71/D/687/1996, 3 April 2001 [7.2], [10.3]. 80 M.S.P B. v. Netherlands, CCPR/C/123/D/2673/2015, 25 July 2018 [7.6] [7.7]. 81 A/2929 (1955), pp. 58 59, [166] [167].

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was again discussion in the Third Committee, with some considering that reference to discrimination was unnecessary in view of Article 2(1), while others felt that a paragraph could usefully be added with a view to eliminating religious and racial discrimination.82 No additional non-discrimination text eventuated. The obstacle faced by the authors in Joslin v. New Zealand, who claimed that Article 23(1) and (2) was violated by denying same-sex couples the capacity to marry, was the fact that the text of Article 23(2) refers to the ‘right of men and women’ to marry and to found a family. The Committee reasoned that any claim that the right to marriage had been violated must be considered in the light of Article 23(2), given its existence as a specific provision in the Covenant on that very right. It was the only substantive provision in the Covenant which defined a right by using the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. Use of the term ‘men and women’, rather than those general terms used elsewhere, had been consistently and uniformly understood as indicating that the obligation stemming from Article 23(2) was to recognise as marriage only the union between a man and a woman wishing to marry each other. In the light of the scope of this right the Committee could not find that the refusal to provide for marriage between same-sex couples violated Article 23(1) or (2), or indeed Articles 16, 17 or 26.83 Strong indicia of ‘the family’ were clearly present in Joslin but the text of Article 23(2) was decisive. Article 26 independently operates to prohibit discrimination between married heterosexual couples and married same-sex couples, for example, in the benefits available to one but not the other (unless objectively justified according to the usual criteria), as emphasised by the concurring Individual Opinion of Rajsoomer Lallah and Martin Scheinin in Joslin.84 That opinion also clarified that Article 23(2) in no way limits the liberty of States to recognise, in the form of marriage or in some other comparable form, same-sex companionship. They were able to join the majority decision, taking into account the fact that New Zealand did recognise the authors, with and without their children, as families. Two recent cases, G v. Australia and C v. Australia, demonstrate that domestic measures which ostensibly aim to conform with Article 23(2), by requiring consistency with the definition of marriage as between a man and a woman, were substantively non-compliant with the Covenant. Both cases concerned unjustified

82 A/5000 (1961), p. 27 [86]. 83 Joslin et al. v. New Zealand, A/57/40 at 214, 17 July 2002 [8.1] [8.3]. 84 Individual Opinion of Committee members Mr Rajsoomer Lallah and Mr Martin Scheinin (concurring). Issues affecting same sex marriage are traversed by Nathan Crombie, ‘A Harmonious Union: the Relationship between States and the Human Rights Committee on the Same Sex Marriage Issue’, (2013) 51 Colum. J. Transnat’l L., p. 696; and Daniel Conkle, ‘Evolving Values, Animus, and Same Sex Marriage’, (2014) 89(1) Ind. L.J., p. 27. More generally, see Elena Abrusci, ‘A Tale of Convergence: Discrimination Based on Sexual Orientation in Regional Human Rights Bodies and the Human Rights Committee’, Special Issue: Interaction between Human Rights: 50 Years of the Covenants, (2017) 35(3) Nord. J. Hum. Rts, p. 240.

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restrictions: in the case of G v. Australia, in violation of Articles 17 and 26, by refusal to change certain official documents for a transgender person unless she divorced from her spouse;85 and in C v. Australia, in violation of Article 26 by denying access to divorce proceedings and court based relief for same-sex couples who were validly married abroad.86 These are discussed further in other chapters.87 Prohibited restrictions on the right to marry found in Concluding Observations include a ban on marrying outside one’s religious faith,88 on marrying anyone without regular residence status,89 and on women remarrying within a certain period following divorce.90 ‘Of Marriageable Age’ The right to marry and the right to found a family in Article 23(2) are separate. They are required to be recognised in the case of those of ‘marriageable age’. In the Commission on Human Rights it was agreed that it should be left to States to determine marriageable age, which could refer to the age of legal majority or of physical maturity.91 However, the minimum age of marriage is inseparable from the question of free and full consent, the subject of Article 23(3), which in turn is related to forced marriage and has broader implications which reach into modern forms of slavery in contravention of Article 8.92 Too low an age would vitiate meaningful consent 85 G v. Australia, CCPR/C/119/D/2172/2012, 17 March 2017. 86 C v. Australia, CCPR/C/119/D/2216/2012, 28 March 2017. See also Ireland CCPR/C/IRL/CO/3 (2008) 8 (failure to recognise the right of transgender persons to a change of gender by permitting the issuance of new birth certificates); Ireland CCPR/C/IRL/CO/4 (2014) 7 (retention of the requirement for married transgender persons to dissolve the existing marriage or civil partnership to have their preferred gender formally recognised). 87 See chapters on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘Privacy’, ‘Marital Status, Gender Identity and Official Documents’; and Article 26: Equality before the Law Equal Protection of the Law, section ‘Sexual Orientation, Gender Identity, Transgender Status’. In the Art. 23 context, note Italy CCPR/C/ITA/CO/6 (2017) 11 (recom mendation to consider allowing same sex couples to adopt children, including the biological children of one of the partners, and ensuring the same legal protection for children living in same sex families as for those living in heterosexual families; also provide for equal access to in vitro fertilisation); Lithuania CCPR/C/LTU/CO/4 (2018) 9 (concern that same sex couples are not legally recognised, including those legally married and recognised outside Lithuania). 88 E.g., Algeria CCPR/C/79/Add.95 (1998) 13 (a woman may not marry a non Muslim while the same restriction does not apply to a man); Morocco CCPR/CO/82/MAR (2004) 27 (legal ban on marriages between Muslim women and men from other religions or with other beliefs); Costa Rica CCPR/C/CRI/CO/5 (2007) 10 (only Catholic marriages had civil effect); Jordan CCPR/C/ JOR/CO/5 (2017) 28 (marriage prevented and inheritance denied to those who renounce Islam). 89 Switzerland CCPR/C/CHE/CO/3 (2009) 21 (marriage or partnership prohibited with a person with no regular residence status in Switzerland). 90 E.g., Japan CCPR/C/JPN/CO/5 (2008) 11 (six months); Cambodia CCPR/C/KHM/CO/2 (2015) 23 (120 days); Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 11 (300 days). 91 A/2929 (1955), Ch.VI, p. 59 [168]. 92 See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour, sections ‘Article 8(2): Servitude’, ‘Forced Marriage’.

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and leave those entering marriage exposed to abuse. Too high a minimum age would be restrictive. Volio sets the issue of the minimum age for marriage in the context of the aims of marriage, ‘since extreme youth and physical immaturity are serious obstacles to the achievement of the essential objectives of marriage’.93 The Committee has shown consistent concern at early marriage,94 when the minimum marriageable age for girls is as low as 12,95 or is otherwise too low,96 and also when children have been allowed to marry from the age of 15.97 It is not convinced that a minimum age of 16 is sufficient to ensure free and full consent.98 It has been concerned when the age of marriage is set at 18 years where child marriages continue to be allowed below that with parental consent,99 and where an age limit of marriage could be waived.100 It has strongly recommended specific legal provision be made for the minimum age for marriage forthwith where it has been absent.101 It has often criticised differentiation on the basis of sex in the minimum age for marriage.102 93 Volio, ‘Legal Personality, Privacy, and the Family’, p. 202. 94 E.g., Zimbabwe CCPR/C/79/Add.89 (1998) 12; Mali CCPR/CO/77/MLI (2003) 10; Uganda CCPR/CO/80/UGA (2004) 23; Yemen CCPR/CO/84/YEM (2005) 21; Bulgaria CCPR/C/BGR/ CO/3 (2011) 15; Kuwait CCPR/C/KWT/CO/2 (2011) 10; Malawi CCPR/C/MWI/CO/1 (2011) 19; Mauritania CCPR/C/MRT/CO/1 (2013) 23; Mozambique CCPR/C/MOZ/CO/1 (2013) 9; Georgia CCPR/C/GEO/CO/4 (2014) 7; Burkina Faso CCPR/C/BFA/CO/1 (2016) 15; Uzbekistan CCPR/C/UZB/CO/4 (2015) 8; Sudan CCPR/C/SDN/CO/5 (2018) 17. 95 E.g., Sri Lanka CCPR/C/79/Add.56 (1995) 38. 96 E.g., Iran CCPR/C/IRN/CO/3 (2011) 28; Lithuania CCPR/C/LTU/CO/4 (2018) 29 (16 years at the request of a person intending to marry before the age of 18 and before the age of 16 in cases of pregnancy). 97 E.g., Yemen CCPR/CO/84/YEM (2005) 21. 98 E.g., Uruguay CCPR/C/URY/CO/5 (2013) 11; Bahrain CCPR/C/BHR/CO/1 (2018) 17 (ensure that the minimum age for marriage is set at 18 years for both girls and boys, not 16). 99 E.g., Sierra Leone CCPR/C/SLE/CO/1 (2014) 13. See also Syria CCPR/CO/71/SYR (2001) 20 (minimum marriageable age is 17 years for girls and 18 for boys, but can be reduced by a judge to 15 years for boys and 13 for girls with the father’s consent); Jordan CCPR/C/JOR/CO/5 (2017) 8 (concern about early marriages, involving girls under the age of 18 years). 100 E.g., Senegal A/35/40 (1980) 215 (the President could waive the age limit of marriage for ‘serious reasons’). 101 E.g., Sudan CCPR/C/79/Add.85 (1997) 11. 102 E.g., Canada A/35/40 (1980) 173; Venezuela A/36/40 (1980) 61 (legal age for marriage was 14 for males and 12 for females); Mali A/36/40 (1981) 250 (for marriage the age of majority was 21, but a girl of at least 16 years of age or a boy of at least 18 could marry with parental or civic consent); Canada A/40/40 (1985) 212 (12 and 14 years for women and men, respectively); Peru CCPR/C/79/Add.72 (1996) 14 (difference in the minimum age required for matrimony); Zimbabwe CCPR/C/79/Add.89 (1998) 12 (statutory difference in the minimum age of girls and boys for marriage); Monaco CCPR/CO/72/MCO (2001) 12 (legal age for marriage 15 years for girls, but 18 years for boys); Syria CCPR/CO/71/SYR (2001) 20 (minimum marriageable age of 17 years for girls and 18 for boys); Togo CCPR/CO/76/TGO (2002) 21 (discrimination against women with respect to the minimum age for marriage); Azerbaijan CCPR/C/AZE/CO/3 (2009) 7 (legal age for marriage of girls 17, for boys 18); Iran CCPR/C/IRN/CO/3 (2011) 28 (minimum age differentiated on the basis of sex); Kuwait CCPR/C/KWT/CO/2 (2011) 10 (minimum age for marriage differentiated on the basis of sex); Philippines CCPR/C/PHL/ CO/4 (2012) 11 (minimum age for marriage for girls); Burundi CPR/C/BDI/CO/2 (2014) 11 (different minimum ages of marriage for men and women); Japan CCPR/C/JPN/CO/6 (2014) 8

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A number of international instruments establish the minimum age for marriage, including the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery;103 CEDAW104 (for which the Committee on the Elimination of Discrimination against Women recommended 18 years with exceptions);105 and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,106 which was developed in parallel with the Covenant, and resulted in the recommendation for legislative action to specify a minimum age for marriage at no less than 15 years of age.107 The Right to Found a Family According to General Comment 19 the right found a family implies, in principle, the possibility of procreating and (influenced by the Mauritian women case)108 living together.109 The right is not confined to those in a relationship of marriage, given the breadth of the definition of ‘family’ already discussed.110 In General Comment 19 the Committee referred to the ‘possibility’ to procreate, rather than the ‘right’ to procreate, embracing the reality that for many families procreation is a biological impossibility. When referring to ‘family planning policies’, it made modest reference to the obligation to achieve compatibility with the Covenant, in particular by avoiding discrimination and compulsion.111 Nowak put it in these terms: ‘At the core of the right to found

103

104 105

106 107 108 109 110

(different age of marriage for men and women); Suriname CCPR/C/SUR/CO/3 (2015) 15 (minimum age of marriage was raised to 15 for women and 17 for men); Burkina Faso CCPR/C/BFA/CO/1 (2016) 15; Pakistan CCPR/C/PAK/CO/1 (2017) 41 (for girls 16 years, for boys 18 years). ECOSOC, Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 September 1956, entered into force 30 April 1957, Arts 1(c), (d) and 2. See also chapter on Article 8: Slavery, Servitude, and Forced or Compulsory Labour, section ‘Forced Marriage’. CEDAW, 18 December 1979, UNTS vol. 1249, p. 13, entered in to force 3 September 1981, Art. 16(2). Committee on the Elimination of Discrimination Against Women, General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, adopted at the Thirteenth Session of the Committee on the Elimination of Discrimination against Women, in 1994 (contained in document A/49/38) [36]. See also the definition of a child in Art. 1 of the Convention on the Rights of the Child, 20 November 1989, UNTS vol. 1577, p. 3, adopted by General Assembly Resolution 44/25 of 20 November 1989, entered into force on 2 September 1990. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, General Assembly Resolution 1763 A (XVII) of 7 November 1962, entered into force 9 December 1964, Art. 2. GA Resolution 2018 (XX), 1 November 1965, Principle II. Aumeeruddy Cziffra et al. v. Mauritius, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2 (b)2(i)2]. GC 19 [5]. On whether the right to found a family also covers non marital families, see Aleardo Zandghellini, ‘The ICCPR and Procreation and Parenting by Lesbians and Gay Men’, (2008) 9 Melb. J. Int. L., p. 125; cf. Nowak, CCPR Commentary, p. 526. See section ‘Definition of the “Family”’, above. 111 GC 19 [5].

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the family is the right of two partners to have children . . . by natural or artificial procreation, but also by adoption or other forms of legal recognition of a parentchild relationship . . . The primary significance of the right to found a family consists of the claim to State protection against interference with the right to procreation by either the State or private parties.’112 The Committee has criticised excessive restrictions on assisted reproduction technology in Costa Rica, citing Articles 17 and 23.113 A recurring concern of the Committee has been forced sterilisation, which is an issue primarily under both Articles 7 and 17.114 Adoption should not be refused on discriminatory grounds, including religious belief.115 The Committee has asked New Zealand to consider permitting civil union partners to adopt children, among recommendations to repeal discriminatory provisions in its adoption legislation.116 Commercial surrogacy is an issue of increasing importance and complexity, involving at a minimum compatibility with the rights of the child (including the child’s right not to be involuntarily separated from parents), as well as the Covenant rights of surrogate mothers, particularly where there are risks of coercion or ill-treatment.

A RT I CL E 2 3 ( 3 ) : FU L L C O N S E N T R E Q U I R E D OF THE INTENDING SPOUSES The terms of Articles 23(3) are absolute: no marriage shall be entered into without the free and full consent of the intending spouses. It is similar to Article 16(2) of the Universal Declaration but in more prohibitive terms.117 Equivalent text is also found in the ICESCR,118 CEDAW,119 and the Convention on the Rights of Persons with Disabilities.120 112 Nowak, CCPR Commentary, p. 533. 113 Costa Rica CCPR/C/CRI/CO/6 (2016) 19 (in vitro fertilisation and embryo transfer). 114 See chapters on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’; and Article 17: Privacy, Home, Correspondence; Honour and Reputation’, ‘Privacy’, ‘Forced Medical and Similar Intervention’. 115 For examples of religious discrimination in matters of custody in violation of the European Convention, which would pose similar risks for adoption, see, e.g., Hoffmann v. Austria, App. No. 12875/87, [1993] EHRR 293; Vojnity v. Hungary, App. No. 29617/07, ECHR, 12 February 2013. On marital status discrimination, see Richard Storrow, ‘Rescuing Children from the Marriage Movement: the Case against Marital Status Discrimination in Adoption and Assisted Reproduction’, (2005/6) 39 U.C. Davis L. Rev., p. 305. 116 New Zealand CCPR/C/NZL/CO/6 (2016) 27, 28. 117 Under the Universal Declaration, ‘Marriage shall be entered into only’, cf. Art. 23(3) ‘No marriage shall be entered into’. 118 ICESCR Art. 10(1). 119 CEDAW, 18 December 1979, UNTS vol. 1249, p. 13, entered into force 3 September 1981, Art. 16(1)(b). 120 Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex I, adopted by the General Assembly by its Resolution 61/106, at its Seventy sixth Plenary meeting on 13 December 2006, entered into force 3 May 2008, Art. 23(1)(a).

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Arranged Marriages In the review process the Committee has pointed out the incompatibility of customary arrangements in some countries by which a woman’s consent to marriage is mediated by a guardian. In Algeria, the guardian could deny the woman her choice of a husband, and in Sudan recourse had to be made to the courts for a woman’s choice of a husband to succeed. In each case it recommended changes to the relevant laws.121 In Suriname, legislative provision was made for arranged marriages, aggravated by a low minimum age for marriage.122 The Committee has also questioned why active members of the Belgian police force could not contract marriage unless previously authorised by the commanding officer (which was to do with keeping the spouses of police officers above suspicion);123 and why in Colombia an adopted son was not free to marry without the consent of the adoptive father and mother before the age of 21, whereas other children could freely marry if over 18 (it was to protect the adopted child from any pressure that may be exerted by the adoptive family to marry sooner).124 Forced Marriage A very helpful description is provided of forced marriage and its harms in the joint statement in 2014 by the CEDAW Committee and the Committee of the Rights of the Child: Forced marriages . . . may be manifested in various forms, including child marriage . . . exchange or trade-off marriages (i.e. baad and baadal), servile marriages and levirate marriages (coercing a widow to marry a relative of her deceased husband). In some contexts, a forced marriage may occur when a rapist is permitted to escape criminal sanctions by marrying the victim, usually with the consent of her family. Forced marriages may occur in the context of migration in order to ensure that a girl marries within the family’s community of origin or to provide extended family members or others with documents to migrate to and/or live in a particular destination country. Forced marriages are also increasingly being used by armed groups during conflict or may be a means for a girl to escape post-conflict poverty. Forced marriage may also be defined as a marriage in which one of the parties is not permitted to end or leave it. Forced marriages often result in girls lacking personal and economic

121 Sudan CCPR/C/79/Add.85 (1997) 11; Sudan CCPR/C/SDN/CO/3 (2007) 13 (institution of the wali (guardian)); Sudan CCPR/C/SDN/CO/5 (2018) 17 (contract of marriage for a woman or pubescent girl concluded by a male guardian); Algeria CCPR/C/79/Add.95 (1998) 13. See also Yemen CCPR/CO/84/YEM (2005) 21 (marriages of under age children are contracted by their guardians). 122 Suriname CCPR/CO/80/SUR (2004) 18. 123 Belgium A/43/40 (1988) 483, 504. 124 Colombia A/35/40 (1980) 257.

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autonomy and attempting to flee or commit self-immolation or suicide to avoid or escape the marriage.125

Among these various manifestations of forced marriage the Committee has raised particular concern about the practices of levirate and sororate marriage,126 wife inheritance,127 temporary marriage,128 forced marriage of kidnapped women,129 bride abduction,130 the exemption of a rapist from any penalty if he marries the victim,131 forced marriages amongst particular minority communities,132 as well as forced marriage within other traditions, religions or cultures.133 Dowry The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography has explicit obligations with regard to child and/or forced marriages which cover dowry payments or bride prices, because they could constitute a sale of children as defined in Article 2(a) of the Protocol.134 Various aspects of dowry payments have been the subject of Committee criticism in reviewing country reports.135 125 Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, CEDAW/C/GC/31 CRC/C/GC/18, 14 November 2014 [23] (footnotes omitted). 126 In levirate marriage the brother of a deceased must marry his brother’s widow; in sororate marriage if a man’s wife dies without children her lineage must provide another wife, usually a younger sister. See, e.g., Mali CCPR/CO/77/MLI (2003) 10 (levirat whereby a widow is inherited by the deceased husband’s brother or cousin); Benin CCPR/C/BEN/CO/2 (2015) 12 (rites of widowhood, levirate); Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) 11 (levirate and sororate). 127 E.g., Kenya CCPR/CO/83/KEN (2005) 10 (‘wife inheritance’); Malawi CCPR/C/MWI/CO/1 (2011) 8 (the practice of widows being considered part of the ‘inheritance’ by their brother in law or other male relatives); Namibia CCPR/C/NAM/CO/2 (2016) 17 (‘widow inheritance’); Swaziland CCPR/C/SWZ/CO/1 (2017) 24 (‘bride inheritance’). 128 E.g., Iran CCPR/C/IRN/CO/3 (2011) 28; Iraq CCPR/C/IRQ/CO/5 (2015) 15; Azerbaijan CCPR/C/AZE/CO/4 (2016) 14 (temporary marriage (sighe)). 129 E.g., Uzbekistan CCPR/CO/83/UZB (2005) 24. 130 E.g., Georgia CCPR/C/GEO/CO/3 (2007) 8; Uzbekistan CCPR/C/UZB/CO/4 (2015) 8. 131 E.g., Guatemala CCPR/CO/72/GTM (2001) 24. 132 E.g., Slovenia CCPR/C/SVN/CO/3 (2016) 23 (Roma). 133 E.g., Congo CCPR/C/COD/CO/3 (2006) 11; Iran CCPR/C/IRN/CO/3 (2011) 28; Malawi CCPR/C/MWI/CO/1 (2011) 19; Chad CCPR/C/TCD/CO/2 (2014) 8; Mozambique CCPR/C/ MOZ/CO/1 (2013) 9; Benin CCPR/C/BEN/CO/2 (2015) 12; Iraq CCPR/C/IRQ/CO/5 (2015) 15. 134 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 16 March 2001, A/RES/54/263, entered into force 18 January 2002. 135 E.g. Guinea A/43/40 (1988) 257 (compulsory dowry); Zimbabwe CCPR/C/79/Add.89 (1998) 12 (concern at continued practices such as kuzvarita (pledging of girls for economic gain), kuripa ngozi (appeasement to the spirits of a murdered person), lobola (bride price); Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 8 (women are imprisoned if they do not return their dowries on separating from their husbands). See also Central African Republic A/43/40 (1988) 291; Namibia CCPR/C/NAM/CO/2 (2016) 17 (bride price (lobola)).

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A RT I C L E 2 3 ( 4 ) : EQ U A L I T Y O F R I G H T S A N D R E S P O N S I B I L IT I E S O F S P O U S E S A S TO M A R R I A G E , D U R I N G M A RR I A G E A ND AT I T S D I S S O L U T I O N / N E C E SS A RY P R O T E C T IO N F O R CHILDREN ON MARRIAGE DISSOLUTION Development of the Equality Text Much of the drafting discussion on Article 23(4) concerning discrimination turned on the extent to which Article 16(1) of the Universal Declaration might be incorporated or improved upon. The more conservative delegates considered that the many inequalities arising from ancient traditions and religious beliefs and practices, which clearly existed, could not be changed overnight. Also, governments did not always have control of such matters. Any attempt to put an obligation into immediate effect would require radical changes in the civil laws and customs of most countries. It could therefore only be achieved over time. Article 10 of the draft ICESCR on protection of marriage, motherhood and the family was thought by some to go far enough, requiring progressive realisation. Since the Covenant’s draft Article 3 was to proclaim the equal rights of men and women to the enjoyment of all civil and political rights some considered it unnecessary to reiterate the principle in the article on marriage. Against this it was said that since inequalities between the rights of husband and wife obviously existed, the inclusion of a provision based on Article 16(1) was all the more justified.136 Discussion continued along similar lines in the Third Committee. Some delegates urged caution to avoid offending unnecessarily those who accepted longestablished customs and traditions. They preferred the progressive realisation approach to equality, believing that customs and traditions which did not meet a genuine human need would gradually fade away as a result of advances in education. Those preferring a stricter approach wanted the commitments to be sufficiently strong to ensure that national legislation on marriage be brought into line with modern trends.137 The resulting text of Article 23(4) merely requires States to ‘take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution’. The focus in Article 23(4) on marriage dissolution confirms that Article 23 does not pose an obstacle to divorce.138 136 A/2929, Ch.VI, pp. 57 58 [155] [162]. 137 A/5000 (1961), pp. 25 27 [81] [84]. 138 For discussion on the permissibility of a prohibition on divorce, see Nowak, CCPR Commentary, pp. 530 1. See also Korea A/39/40 (1984) 386 (several members noted with surprise that divorce had almost disappeared, and asked whether there were legal norms or other government interventions which made divorce difficult); Togo A/44/40 (1989) 250 (members asked how Togolese women could obtain a divorce, how many divorces had been applied for and granted); Ireland CCPR/C/79/Add.21 (1993) 16 (continued non recognition of divorce served only to exacerbate problems associated with the de facto termination of marriage).

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Gender Inequality Gender equality issues relevant to Article 23(4) were touched on as follows by the Committee in its General Comment on Article 3, suggesting a high standard of obligation:139 To fulfil their obligations under article 23, paragraph 4, States parties must ensure that the matrimonial regime contains equal rights and obligations for both spouses with regard to the custody and care of children, the children’s religious and moral education, the capacity to transmit to children the parent’s nationality, and the ownership or administration of property, whether common property or property in the sole ownership of either spouse. States parties should review their legislation to ensure that married women have equal rights in regard to the ownership and administration of such property, where necessary. Also, States parties should ensure that no sex-based discrimination occurs in respect of the acquisition or loss of nationality by reason of marriage, of residence rights, and of the right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name. Equality during marriage implies that husband and wife should participate equally in responsibility and authority within the family.

The issues raised in this paragraph are discussed further in the chapter on Article 3, and include inter-faith marriage, the treatment of adultery, polygamy, inheritance, registration of marriage, devolution of property, property ownership, residence, the transmission and acquisition of nationality, and domestic violence (including marital rape).140 Domestic violence towards children is a matter of concern under at least Articles 23 and 24, including when vulnerable children are taken in residential care.141 Contact between a Child and the Non-Custodial Parent Article 23(4) secures regular contact for the non-custodial parent of a child following the dissolution of a marriage, while allowing exceptions. Criteria to enable the courts to apply the full provisions of Article 23 include the maintenance of personal relations and direct and regular contact between the child and both parents. The unilateral opposition of one of the parents cannot be considered an exceptional circumstance. In Hendriks v. Netherlands the Committee found there to be no violation where the relevant domestic courts recognised the child’s right to permanent contact with each of his parents, and the right of access of the non-custodial 139 GC 28 [25]. See also CEDAW, Art. 16(1)(c). 140 Chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, sections ‘Violence against Women, including Domestic Violence’ and ‘Equality of Rights and Responsibilities of Spouses (Marriage, during Marriage and Dissolution)’. 141 E.g., Moldova CCPR/C/MDA/CO/3 (2016) 41; Lithuania CCPR/C/LTU/CO/4 (2018) 29. Note also Mauritius CCPR/C/MUS/CO/5 (2017) 21 (concern at reports of increased acts of violence and abuse against elderly persons, which mostly take place within families and in care institu tions (Arts 2 and 23)).

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parent, but in the circumstances considered these rights should not be granted in the child’s interests. It was reluctant to interfere with the domestic decision given ‘the court’s appreciation in the light of all the circumstances’.142 The Committee was, however, prepared to find that Article 23(4) was violated in Fei v. Colombia. The author was prevented from maintaining regular contact with her daughters because her ex-husband sought to stifle this by all means at his disposal, and proceedings to enforce orders which provided for such contact were frustrated by official delay and inaction.143 The Protection of Any Children on the Dissolution of Marriage In an obiter comment in an early decision in Balaguer Santacana v. Spain the Committee stated that Article 23(4) did not apply (to benefit either father or daughter authors), because Mr Balaguer was never married: the protection of the second sentence of Article 23(4) (‘in the case of dissolution, provision shall be made for the necessary protection of any children’) refers only to children of the marriage which is being dissolved. It was also reassured that the authorities, when determining custody or access, always took the child’s best interests into consideration.)144 The requirement for suitable provision for the necessary protection of any children on marriage dissolution is in addition to the protection required for every child under Article 24, and supplements that under the Convention on the Rights of the Child, in which the most relevant provisions are Articles 9 (a child shall not be separated from his or her parents against their will), 10 (family reunification), and 18 (allocation of responsibilities for the upbringing and development of the child).

I M P L E M E N TAT I O N Prominent among the Article 23 reservations which drew criticism from States were those entered by Qatar and Mauritania (in both cases preserving the Islamic Sharia). 142 Hendriks v. Netherlands, CCPR/C/33/D/201/1985, 27 July 1988 [10.4]. See also V.O. v. Norway, Communication No. 168/1984, CCPR/C/OP/2 at 48 (1990), 17 July 1985 [4.5] (claim that, with regard to the custody of the author’s daughter by marriage, one sided and biased decisions in divorce proceedings were in violation of Art. 23(4) (inadmissible because of Norway reservation)); Nasir v. Australia, CCPR/C/116/D/2229/2012, 29 March 2016 [6.5] (Arts 17 and 23 claims inadmissible as the inability to keep in contact with the author’s family was attributable to his daughters living in a village with very limited access to a telephone, and also due to circumstances inherent to imprisonment). For the interests of the child in the separation of children, see Sonja Starr and Lee Brilmayer, ‘Family Separation as Violation of International Law’, (2003) 21 Berkeley J. Int. L., p. 213. 143 Fei v. Colombia, CCPR/C/53/D/514/1992 (1995), 4 April 1995 [8.10]. See also Said v. Norway, CCPR/C/68/D/767/1997, 26 April 2000 for an unsuccessful Art. 23 claim because no separate issue arose beyond the Art. 14 violation. 144 Santacana v. Spain, CCPR/C/51/D/417/1990, 15 July 1994 [10.4].

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Qatar’s was the subject of objection by Germany; Mauritania’s by Finland, France, Portugal and Sweden (as being in contradiction with the object and purpose of the Covenant), and by the United Kingdom (for not clearly defining the extent to which it accepted relevant Covenant obligations). The Committee has expressed its regret that other States have maintained their reservations and interpretive declarations affecting Article 23, including Bahrain, Israel and Kuwait.145 Implementation in different countries may vary, given that the concept of the family is broad and the legal protection and other measures which a State may afford may depend on different social, economic, political and cultural conditions and traditions.146 The Article 2 obligation ‘to respect and to ensure’ Covenant rights to all individuals is to be met in the case of Article 23 by domestic measures in such private law areas as inheritance and family law, including eligibility to marry, the requirement of consent (to which the minimum age of marriage requires stipulation), the care, custody and maintenance of children, and parental access. The Committee has expressed its expectations of the law, in enabling the courts to apply the full provisions of Article 23.147 Obligations under Article 23 also extend to the content and operation of immigration laws, to prevent unjustified family separation and to allow family reunification in appropriate cases. An ostensibly lower standard of implementation is required under Article 23(4), to ‘take appropriate steps to ensure equality of rights and responsibility of spouses as to marriage, during marriage and at its dissolution’ because this aspect of Article 23 was so hotly contested in its preparatory stages. Among the reasons for this were the personal law provisions reflecting religious and cultural traditions in many countries, including those which continue to populate the Committee’s recommendations in the country review process, in relation to both Articles 3 and 23. The nondiscrimination provision in Article 23(4) was included not only to repeat the equality entitlement expressed in Article 16(1) of the Universal Declaration but to address the prevalence of unequal treatment of women in so many societies. The Committee has emphasised that while the cultural background of numerous harmful practices must be borne in mind when devising strategies to address them, a failure to comply with the obligations in the Covenant cannot be ultimately justified by reference to political, social, cultural or economic considerations within the State.148 145 Kuwait CCPR/CO/69/KWT (2000) 4; Kuwait CCPR/C/KWT/CO/2 (2011) 7; Mauritania CCPR/C/MRT/CO/1 (2013) 6; Israel CCPR/C/ISR/CO/4 (2014) 5; Kuwait CCPR/C/KWT/ CO/3 (2016) 8; Bahrain CCPR/C/BHR/CO/1 (2018) 7. 146 Andrew I. Schoenholtz and Ryan Mrazik present ideas for incorporating Art. 23 and related rights in domestic legislation (US) in ‘Protecting and Promoting the Human Right to Respect for Family Life: Treaty Based Reform and Domestic Advocacy’, (2010) 4 GILJ, p. 651. 147 Hendriks v. Netherlands, CCPR/C/33/D/201/1985 (1988), 27 July 1988 [10.4], [11]. 148 General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 [14]; Ghana CCPR/C/GHA/ CO/1 (2016) 17.

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The Human Rights Council’s report on the impact of the implementation of obligations with regard to the protection of the family (following its Resolution A/ HRC/29/L.25) demonstrates the variety of legal and policy means through which States in practice protect and assist the family, including through: the constitution; special laws; general legislation; legislative changes, for example, allowing for the legal recognition of same-sex relationships, improving legal recognition to unmarried couples or de facto unions, providing protection against gender-based violence, and increased legal protection for children against sexual abuse, prostitution and child pornography. Other initiatives address poverty, social security, housing and vulnerable children, echoing concerns previously expressed by the Committee in Concluding Observations.149 Among the Council’s key recommendations is that the design and implementation of policies should be guided by human rights-based approaches that support families in performing their valuable societal functions while respecting and ensuring the effective realisation of the rights of family members.150

C O N C L US I O N Article 23 contains a guarantee that is unusual in directing protection in favour of an institution, the family (no other Covenant provision does this), by society and the State (only Article 24 does something similar, with reference to the child’s family, society and the State). Of course protection is to be asserted by or on behalf of the individual, and it is the State which has primary responsibility for respecting and ensuring this protection under Article 2(1). Requirements for implementation may be crudely characterised as: substantive and requiring clear stipulation in the sphere of private law (e.g., in the law establishing the minimum age for marriage and the key criteria to enable the courts to apply the full provisions of Article 23);151 of a procedural nature when safeguarding the adjudication of competing interests in an Article 23-compliant manner (requiring judicial and other authorities to apply relevant criteria appropriately,152 and ensuring proper enforcement of decisions);153 and economic in providing appropriate 149 E.g., Germany (GDR) A/33/40 (1978) 165 (whether economic assistance was provided to the family); Costa Rica A/35/40 (1980) 350 (information requested on steps taken to provide protection and assistance to mothers of several children); Mongolia A/35/40 (1980) 102 (welcoming special benefits during their pregnancy and until the child was six months old but asking whether assistance lasted until the children were old enough to attend school); Japan A/ 37/40 (1982) 73 (questioning about family allowances and housing grants for large families); Albania CCPR/C/ALB/CO/2 (2013) 21 (recommendation to shape a family policy aimed at better supporting poor families and preventing the institutionalisation of children). 150 A/HRC/31/37, 29 January 2016 [79]. 151 Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.7]. 152 Ibid. 153 Fei v. Colombia, CCPR/C/53/D/514/1992, 4 April 1995 [8.10]; Martínez v. Paraguay, CCPR/ C/95/D/1407/2005, 27 March 2009 [7.3] [7.5].

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financial and other support when needed for the family. The immigration cases point to the dual need for the terms of legislation to be appropriate, and for it to be enforced in an appropriate manner. There is no simple distinction between ‘interference’ and failure in respect of a ‘positive obligation’. Article 23 appears to take on Article 17 characteristics when the two are successfully invoked together, but also on occasion when Article 23 applies independently. Similarly, when Article 23 is violated concurrently with Article 24, the attribute of ‘positive protection’ within Article 23, shared with Article 24, appears to be more prominent. However, the Committee has not been consistent in such approaches. The right to marry has been construed narrowly by the Committee, in view of the text confining recognition of the right to ‘men and women’, with the result that non-discrimination provisions of the Covenant have a more substantial role in addressing issues of sexuality-based discrimination. The contemporary concerns of the Committee echo those of the drafters in the discriminatory treatment of women and children in religious or customary law and tradition, and in spite of the qualified obligation in Article 23(4) (‘to take appropriate steps’) the Committee approaches such issues of gender discrimination as strictly as it would under Article 3.154

154 GC 28 [25].

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Article 24: Protection Required for Children

INTRODUCTION Page 659 ARTICLE 24(1): EVERY CHILD SHALL HAVE THE RIGHT TO SUCH MEASURES OF PROTECTION AS ARE REQUIRED BY HIS STATUS AS A MINOR 663 ARTICLE 24(2): EVERY CHILD SHALL BE REGISTERED IMMEDIATELY AFTER BIRTH AND SHALL HAVE A NAME 685 ARTICLE 24(3): EVERY CHILD HAS THE RIGHT TO ACQUIRE A NATIONALITY 686 IMPLEMENTATION 688 CONCLUSION 690

Covenant Article 24 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality. Comparable Provisions in Other International Instruments European Convention: no counterpart.1 American Convention on Human Rights: Article 19. African Charter on Human and Peoples’ Rights: Article 18(3) (protection of the rights of the child as stipulated in international declarations and conventions).

INTRODUCTION Development of Article 24 within the Covenant Scheme The proposal for special protection for children in Article 24 was prompted by the realisation of how much the needs of children differ from those of adults. The 1 NB: Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, CETS No. 201, entered into force 1 July 2010.

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purpose was to give the principles proclaimed in the 1959 Declaration of the Rights of the Child2 status as legal norms binding on Covenant parties. There was some hesitance, however, because the Covenant’s provisions were to apply to all human beings, including children, and to dedicate a special article to children might raise doubts about this. Article 24 ultimately embodied the right ‘to such measures of protection as are required by [every child’s] status as a minor’.3 These are to be secured on the part of the child’s family, society and the State. Article 24 supplements those Covenant provisions which mandate special treatment for children, those under the age of 18, as well as juveniles, however defined in domestic law. These are found in Article 6(5), which prevents the death penalty being imposed for crimes committed by anyone under 18; Article 10(2)(b) and (3), requiring pre- and post-trial segregation of juveniles and adults, speedy adjudication for juveniles to minimise their time spent in pre-trial detention, and penal treatment of juveniles appropriate to their age and legal status; Article 14(1), allowing a judgment not to be made public where required by the interests of juveniles, or where the proceedings concern the guardianship of children; and Article 14(4), which ensures that criminal procedure in the case of juveniles takes account of their age and the promotion of their rehabilitation. The Covenant does not define the term ‘child’ or ‘minor’, although the UN Convention on the Rights of the Child defines a ‘child’ as ‘every human being below the age of 18 years’.4 The Committee’s General Comment 17 on Article 24 leaves the question open by stating that the age of majority is to be determined by each State in the light of relevant social and cultural conditions. It nevertheless warns that the age for each of these purposes should not be set unreasonably low and that a State cannot absolve itself from its Covenant obligations for those under 18, even if they have reached the age of majority under domestic law.5 In the course of developing the grounds on which discrimination would be rendered impermissible in the measures of protection to be accorded under Article 24, those from Article 2 were adopted, even though ‘national . . . origin’ and ‘birth’ posed particular difficulties because of the vexed position in some countries over the treatment of aliens, and concern about children born out of wedlock claiming equal rights (some considered that giving children born out of wedlock

2 Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV), adopted by the General Assembly on 20 November 1959. 3 Note the Committee’s View that ‘children benefit from all the civil rights enunciated in the Covenant’, which implies that political rights may not be relevant: General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989, adopted at the Thirty fifth Session of the Human Rights Committee, on 7 April 1989 (GC 17) [2]. 4 Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by GA Res. 44/25 of 20 November 1989, entered into force 2 September 1990, UNTS vol. 1577, p. 3, Art. 1. 5 General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989, adopted at the Thirty fifth Session of the Human Rights Committee, on 7 April 1989 (GC 17) [4].

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equal rights of inheritance might jeopardise the stability of the family).6 ‘Political or other opinion’ and ‘or other status’ were dropped.7 Interrelation between Article 24 and the Convention on the Rights of the Child Article 24 lost none of its significance with entry into force in 1990 of the Convention on the Rights of the Child, which gives clearer understanding to the needs of the child, especially through the monitoring work of the CRC, whose output is particularly instructive in identifying matters warranting measures of protection.8 The guarantees in Article 24 remain indispensable within the Covenant, and may be asserted under OP1 either on their own or in combination with other Covenant rights. There is no comparable complaints procedure under the Convention on the Rights of the Child. In his individual opinion in X.H.L. v. Netherlands Mr Fabián Salvioli commented on the significance of that Convention in Committee determinations. He recalled the acknowledgement given in General Comment 17 that in most cases the measures to be adopted pursuant to Article 24(1) are not specified in the Covenant, and that it is for each State to determine them in the light of the protection needs of children in its territory and within its jurisdiction.9 However, he continued, they cannot be arbitrary and must be adopted within the framework of other international obligations, notably the Convention on the Rights of the Child. The obligations established there, to the extent that they are relevant, go hand in hand with the obligations in Article 24(1). He suggested that these constitute the parameter for analysis that the Committee should undertake in all cases that involve a child by a State Party to both instruments. Also that the call for this was especially obvious when a child had been a victim of human trafficking, as the author in X.H.L. v. Netherlands was, when there exists an even greater duty to ensure that the same child does not become a victim again; a coherent approach to the two instruments ensures that their provisions have the proper effects.10 It 6 Volio, ‘Legal Personality, Privacy, and the Family’, p. 185, at pp. 205 6. 7 For detailed discussion of proposals concerning discrimination, see Nowak, CCPR Commentary, pp. 548 50. On the potential of international law in protecting the rights of children, even in States which are restructuring their economies, see Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff, 1998). 8 Detailed commentaries on the convention are provided by Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff, 1999), with coverage of the drafting history; and Ton Liefaard and Julia Sloth Nielsen, with reflections since its adoption in The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead (Brill, 2016). 9 GC 17 [3]. 10 Individual Opinion of Mr Fabián Salvioli in X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011 [3] [6].

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is also important to note the criticism levelled by Sir Nigel Rodley and Mr Krister Thelin at the majority in the same case for the position it gave the best interests of the child, as if this were the only applicable criterion for the interpretation of Article 24, a status not enjoyed even under the Convention on the Rights of the Child, from which the Committee had imported it. According to Article 3(1), the best interests of the child are ‘a primary consideration’, not ‘the primary consideration’, and certainly not the only consideration.11 The most detailed guidance on that issue is now available in the CRC Committee’s 2013 General Comment on the right of the child to have his or her best interests taken as a primary consideration.12 Chapter Outline Because much of the protective purpose of Article 24 is directed at ensuring the enjoyment of Covenant rights for children, the main section of this chapter (on Article 24(1)) is organised under headings corresponding to those Covenant provisions most commonly invoked in combination with Article 24, namely: ‘Non-discrimination: Articles 2 and 26’; ‘Right to Life: Article 6’; ‘Cruel, Inhuman or Degrading Treatment or Punishment: Article 7’; ‘Slavery, Servitude and Forced Labour: Article 8’; ‘The Right to Liberty and Security of Person: Article 9’; ‘Conditions of Detention: Article 10(1)’; ‘Migrant and Displaced Children: Articles 12 and 13’; ‘Juvenile Justice: Article 14’; ‘Recognition as a Person before the Law: Article 16’; ‘Interference with the Family: Article 17’; and ‘Early Marriage: Article 23’. The aims of that section are to assess what Article 24(1) adds to the protection offered by those provisions, to help highlight the distinguishing features of Article 24(1), to cement Article 24 in different contexts, and to describe the autonomous and complimentary role of Article 24 within the scheme of the Covenant as a whole. The interrelation between Article 24 and other Covenant rights is clearest in that section, and in the Conclusion, which draws a number of chapter themes together. Two further sections of this chapter concern Article 24(2) and (3), which make provision for the registration of every child immediately after birth, for every child to have a name and to acquire a nationality. Article 24(2) has a particularly close nexus with the right in Article 16 to recognition everywhere as a person before the law.

11 Individual Opinion of Committee members Sir Nigel Rodley and Mr Krister Thelin (dissenting) in X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011. 12 General Comment No. 14 (2013) on the Right of the Child to have His or Her Best Interests Taken as a Primary Consideration, adopted by the CRC Committee 29 May 2013, CRC/C/GC/14.

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A RT I C L E 2 4 ( 1 ) : E V E RY C H I L D S H A L L H AV E T H E R I G H T TO S U C H M E A S UR E S O F P RO T E C T I O N A S A R E R E Q U I R E D B Y H I S S TAT U S A S A M I N O R Non-discrimination: Articles 2 and 26 Article 2 was the source for the non-discrimination text. It was adapted for Article 24(1) to prevent the measures of protection required for children being denied by ‘discrimination as to race, colour, sex, language, religion, national or social origin, property or birth’. It provides an additional strand to Article 24(1), to prevent violation where there is a failure to provide the required measures of protection on that discriminatory basis. (Article 24(1) may obviously also be violated where such failure is not discriminatory.) Article 24(1) does nothing to prejudice the rights of children under the non-discrimination provisions of Article 2, or to their right to equality before the law and the equal protection of the law under Article 26.13 A particularly vivid example of discriminatory treatment which resulted in findings under Articles 24(1) and 26 (among other provisions) is L.N.P. v. Argentina (though the non-discrimination component of Article 24(1) did not feature clearly). The grounds of discrimination under Article 26 were gender and ethnicity, because of the way the author was treated after she presented herself to the authorities as the victim of a multiple rape, just after she had turned 15 years of age, and in the conduct of the subsequent trial of the perpetrators. She was kept waiting at a police station for several hours, in tears and with traces of blood on her dress, the police did not take down any complaint but instead handed her over to the local medical centre where she was subjected to distressing tests aimed at determining whether or not she was a virgin, despite the fact that the attack required an anal examination only. At the trial those alleged to be responsible did not deny carnal intrusion, but relied on their assertions that she was a prostitute. Her morality was unduly put in question, the court based its analysis on her sexual life and whether or not she was a prostitute, and it took her loss of virginity as the main factor in determining whether she consented or not to the sexual act. Having determined that this violated Article 26, the Committee’s Article 24 finding was simply made on the strength of ‘the way in which the author was treated by the judicial, police and medical personnel, as described above’.14 Examples of Committee concern which falls under the nondiscrimination phraseology of Article 24(1) may be found in Concluding Observations.15 13 GC 17 [5]. 14 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [3.2], [13.3] [13.4] (violation of Arts 3, 7, 14(1), 17, 24 and 26; and Art. 2(3), in conjunction with all those Articles). 15 For discrimination as to birth (also gender discrimination affecting the parents), see, e.g., Kuwait CCPR/C/KWT/CO/2 (2011) 12 (discrimination between Kuwaiti men and women with regard to the ability to transmit Kuwaiti nationality to their children); and as to legitimacy (also affecting

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Although Article 24(2) and (3) separately address the obligation to register every child immediately after birth and the right to acquire a nationality, an Article 24(1) finding may still be possible where the failure to provide those measures of protection occurs on a prohibited discriminatory ground. Examples of ostensible discrimination within Article 24(1) are provided in the chapter on Article 16, of the failure to issue birth certificates for children of particular racial groups, and of unregistered children within indigenous communities without an official birth certificate.16 As noted in the Introduction, illegitimacy was an issue which pervaded much of the debates on the text of Article 24(1).17 The Committee raised the issue of the adverse treatment of those born out of wedlock (especially in matters of inheritance) in a limited way in General Comment 17 (including by requiring it to be reported against),18 and in Concluding Observations, but since the 1970s and 1980s it has only arisen very occasionally.19 The non-discrimination clause within Article 24(1) does not include disability as a prohibited ground, but this does not preclude Article 24(1) findings in the absence of discrimination.20 Furthermore, Article 23 of the Convention on the Rights of the Child deals with the special needs of disabled children by a number of positive obligations. Right to Life: Article 6 Article 6(1) may apply concurrently with Article 24 and other Covenant provisions where there is a high rate of infant mortality among minorities (also Article 27);21 conditions in care institutions for children suggest insufficient protective measures

16 17 18

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parents), Uruguay CCPR/C/79/Add.90 (1998) 11 (the future Code Relating to Minors was of concern because unmarried minor mothers may register their children at any age, whereas minor fathers may only do so from 16 onwards). For further issues affecting nationality, see section ‘Article 24(3): Every Child has the Right to Acquire a Nationality’, below. See chapter on Article 16: Recognition as a Person before the Law, section ‘Birth Registration’. See also Art. 30 of the Convention on the Rights of the Child. For detailed discussion on the travaux préparatoires concerning differential treatment of those born in and out of wedlock, see Nowak, CCPR Commentary, pp. 551 4. See GC 17 [5] (reports should indicate how legislation and practice ensure that measures of protection are aimed at removing all discrimination in every field, including inheritance, parti cularly as between children who are nationals and children who are aliens or as between legitimate children and children born out of wedlock). GC 17 [5], [8] (which states that no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock); Mauritius A/33/40 (1978) 494; Spain A/34/40 (1979) 202; Denmark A/36/40 (1981) 91; Austria A/38/40 (1983) 198; Sri Lanka A/39/40 (1984) 113; Mexico A/44/40 (1989) 131; Philippines A/44/40 (1989) 332; Monaco CCPR/CO/72/MCO (2001) 11. The author in L.M.R. v. Argentina, CCPR/C/101/D/1608/2007, 29 March 2011, had a mental age of between 8 and 10 years but was 19 at the relevant time, so Art. 24(1) could not be invoked (even without relying on the non discrimination text) when, following a suspected rape, she was pregnant and prevented from obtaining a termination. E.g., Romania CCPR/C/ROU/CO/5 (2017) 25 (infant mortality rates that disproportionately affect Roma).

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which endanger life (one possible example being the fire in Guatemala at the Virgen de la Asunción Safe Children’s Home, which resulted in the death of forty-one girls who had been locked up in a classroom (Articles 9 and 10));22 and would apply if the death penalty is passed (and carried out) on those below the age of 18 (Article 6(5)).23 Cruel, Inhuman or Degrading Treatment or Punishment: Article 7 A person’s status as a minor enlivens particular obligations under Article 7, demanding special care for their vulnerability in certain situations, including pregnancy, enforced disappearance and (given the risks in the receiving country) threatened deportation. Article 37 of the Convention on the Rights of the Child contains similar obligations to those in Article 7, to ensure no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment. Exposure to ill-treatment often constitutes the concurrent violation of Articles 7 and 24(1). The position of the child multiple rape victim in L.N.P. v. Argentina has already been discussed (see section ‘Non-discrimination: Articles 2 and 26’, above). In addition to a violation of Article 24(1) for want of the measures of protection required by the author’s status as a minor, the treatment she received in the police station and in the medical centre just after being assaulted, and during the court proceedings, contributed to her re-victimisation, in violation of Article 7, which was aggravated by the fact that she was a minor.24 Similarly, the denial to a minor of the opportunity to secure medical intervention to carry out a therapeutic abortion in K.N.L.H. v. Peru violated Article 7, because it was the cause of the suffering she experienced, and Article 24(1), because she did not receive the special care she needed as a minor. Factors supporting the Article 7 finding were that medical advice identified that her own life was at risk from uterine curettage, and that the anencephaly from which her baby suffered was fatal to foetuses in all cases. The baby girl survived for four days after birth. As a result of carrying the baby to full term the mother had to endure the distress of seeing her daughter’s marked deformities and knowing that she would die very soon. She inevitably fell into a state of deep depression. This was an experience that added further pain and distress to what she had already borne during the period when she was obliged to continue with the pregnancy. Of particular importance to the Article 24 finding was the special vulnerability of the author as a minor girl, and that she did not 22 Guatemala CCPR/C/GTM/CO/4 (2018) 32. 23 E.g., Philippines CCPR/CO/79/PHL (2003) 10 (minors sentenced to death); Pakistan CCPR/C/ PAK/CO/1 (2017) 17 (juveniles and persons with psychosocial or intellectual disabilities report edly sentenced to death and executed; executions allegedly carried out in a manner constituting torture or cruel, inhuman or degrading punishment); Sudan CCPR/C/SDN/CO/5 (2018) 31 (the Criminal Code allowed for the death penalty on children under 18 years of age at the time of the offence). 24 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [13.6].

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receive, during and after her pregnancy, the medical and psychological support necessary in the specific circumstances of her case.25 Failure to respond adequately to the disappearance of a child may violate their rights under Articles 7 and 24.26 The author in Atachahua v. Peru successfully asserted Article 24(1) on behalf his granddaughter, in combination with a number of other Covenant provisions. When she was 16 years old she was twice abducted by Sendiero Luminoso guerrillas and each time escaped. She was then detained for sixteen days by the military on suspicion of collaborating with Sendiero. On the instigation of her family, the prosecutor ordered the military to transfer her to the police but in transit she was involved in an accident and fractured her hip. A civil court judge ordered her release as she was a minor. He appointed the author as her legal guardian and ordered them both not to leave the area pending investigation into the charges against her. She was abducted from the house where she and the author were staying, by what were believed to be military and/or special police forces, and was never seen again. The author filed a formal complaint to no avail. An action for habeas corpus failed because the author was required to produce details of the police or military office where she was detained, which he did not possess. Intervening on behalf of the author, the organisation Centro de Estudios y Acción para la Paz (CEAPAZ) petitioned the Defence Minister to investigate her disappearance, pointing out that she was a minor, but no information was received in response to that or other petitions. Among findings of violation of numerous Covenant provisions was that under Article 24(1) because after her disappearance the State did not adopt any particular measures to investigate her disappearance and locate her whereabouts to ensure her security and welfare, given that she was under age at the time.27 Female genital mutilation (FGM) is a practice which violates Articles 3 and 7, and (when involving children) Article 24(1).28 The Committee in Kaba v. Canada commented that ‘there is no question that subjecting a woman to genital mutilation amounts to treatment prohibited under article 7’, and when faced with an

25 K.N.L.H. v. Peru, CCPR/C/85/D/1153/2003, 24 October 2005 [6.2] [6.5]. Issues concerning abortion are also covered in chapters on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Abortion’; Article 6: The Right to Life, sections ‘Right to Life in Particular Settings’, ‘Abortion’; Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, section ‘Reproductive Rights (Denial of Abortion and Sterilisation)’; Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Denial of Abortion Services’. Alyson Zureick offers a perspective on this issue across the European Court, the Human Rights Committee and the Committee Against Torture in ‘(En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman, or Degrading Treatment’, (2015) 38 Fordham Int. L.J., p. 99. 26 See chapter on Article 7: Torture, Cruel and Inhuman or Degrading Treatment or Punishment, section ‘Enforced Disappearance’. 27 Atachahua v. Peru, CCPR/C/56/D/540/1993, 25 March 1996 [8.5], [8.7]. 28 See chapter on Article 7: Torture, Cruel and Inhuman or Degrading Treatment or Punishment, section ‘Female Genital Mutilation’.

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asylum seeker in Canada who claimed that expelling her minor daughter to Guinea would entail a risk of her being subjected to excision by her father, and if not him members of the family, it had to consider whether the girl ran a real and personal risk of being subjected to such treatment if returned. FGM was common and widespread in Guinea, particularly among women of the author’s Malinke ethnic group. In fact, it was practised with impunity in that strictly patriarchal society, and the child’s mother was the only family member opposed to it being carried out. The factor vivifying Article 24(1) was that the girl was only 15 years old at the time the Committee made its decision. Although the risk of excision decreased with age, it considered there was a real risk of the author’s daughter being subjected to FGM if returned, and it found her deportation would constitute a violation of ‘article 7 and article 24, paragraph 1, . . . read in conjunction’.29 X.H.L. v. Netherlands was an Article 7 claim presenting risks of a different sort in the threatened return of a boy to China. He entered the Netherlands as an unaccompanied minor when he was 12 years old, having become separated from his mother, and was unsuccessful in his asylum application. The relevant minister considered he was not eligible for a special residence permit, as adequate care was provided for Chinese unaccompanied minors. Before the Committee he pointed out in support of his Article 7 claim that because he did not have his own identity card, or hukou registration, he could not prove his identity or access orphanages, healthcare, education or any other kind of social assistance in China. Without contact or family connections there he would be forced to beg in the streets. His main Article 24(1) claims were that he was left with the burden of proving that he would not have access to an orphanage in China, which was too heavy for a child to discharge, and that rejecting his request for asylum or for a permit on humanitarian grounds was against his best interests as a minor. He had integrated into Dutch society and learned the language. Because the claims under Articles 7 and 24(1) were closely linked the Committee examined them together. It observed from the deportation decision and the State’s own submissions that there had been a failure to consider duly the extent of the hardship that the author would encounter if returned, especially given his young age at the time of the asylum process. No family members or friends were identified with whom he could have been reunited in China. In light of this, the Committee rejected the State’s assertion that it would have been in the best interest of the author as a child to be returned. The violation of Article 24, in conjunction with Article 7, subsisted in the decision to return him without a thorough examination of the potential treatment to which he may have been subjected as a child, with no identified relatives and no confirmed registration.30 Mr Fabián Salvioli in X.H.L. v. Netherlands described Article 24(1) as a directive of great scope and power 29 Kaba v. Canada, CCPR/C/98/D/1465/2006, 25 March 2010 [10.2] [10.3]. 30 X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011 [10.3] [11].

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and would have preferred the Committee to find an independent violation of Article 24 (in addition to the violation of Article 24, read together with Article 7) since the decision to return the author to China itself constituted a violation of Article 24, independently of whether the decision could do harm to the minor’s psychological well-being.31 A question that arose in O.A. v. Denmark was the extent to which a State should undertake a medical assessment of an individual’s age if there is doubt about whether they may be a minor. The author was a Syrian national who initially fled Damascus to Greece when he was 14. While in Greece he was apprehended as an illegal immigrant, and as he slept rough he witnessed other refugees being exposed to violence and robberies. He left Greece out of fear for his safety and because he was unable to provide for himself, and made his way to Denmark for asylum, then aged 15, enduring hardship on the way. Among the vulnerabilities he faced from deportation back to Greece were homelessness as a child without State assistance, and the general conditions of reception for asylum seekers and refugees, in particular, unaccompanied minors. He provided officials with evidence of his real age, including documentary and testimonial evidence.32 Danish authorities dismissed his claim to be a minor based on inconsistencies between Syrian official documents and his initial statements that he was an adult. He had lied about his age after being advised to do so because unaccompanied migrant minors were systematically detained in Greece. The Committee found that his deportation would amount to a violation of Articles 7 and 24, read alone and in conjunction with each other. Discrepancies concerning his age did not exempt authorities from taking all reasonable measures to remove doubts on that question.33 Corporal punishment has long been an issue under Article 7 because of the reference in that provision to inhuman or degrading ‘punishment’. The Committee

31 Individual Opinion of Committee member Mr Fabián Salvioli, X.H.L. v. Netherlands, CCPR/C/ 102/D/1564/2007, 22 July 2011 [2], [7]. There was also strong dissent from Sir Nigel Rodley and Mr Krister Thelin, among whose criticisms were that the operative date for the Committee’s analysis had typically been the date of its own decision, not the date of the authorities’ decision, to ensure that serious harm is avoided. 32 The author relied on Art. 4(3)(a) of the Council of the European Union Resolution of 26 June 1997 (if evidence of the real age is not available or serious doubts persist, an age assessment test may be carried out, in an objective manner); and UNHCR, Note on the Burden of Proof in Refugee Claims, 16 December 1998. 33 O.A. v. Denmark, CCPR/C/121/D/2770/2016, 7 November 2017 [8.12]. The author referred to the Syrian family book, the statements by staff members of his asylum centre in Denmark and by his family network. For diligence in determining age in the context of Art. 9, see Thomas v. Jamaica, CCPR/C/65/D/800/1998, 26 May 1999 [6.5] [6.6]. For concern at the vulnerability of unaccompanied minors arriving in Italy, see Italy CCPR/C/ITA/CO/6 (2017) 26, and at the vulnerable situation of the large number of unaccompanied migrant children from Haiti, Dominican Republic CCPR/C/DOM/CO/6 (2017) 23. For Committee concerns at age assess ment procedures, see below, section ‘Unaccompanied and Separated Migrants’.

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has often expressed concern at corporal punishment against children, within the family and in schools, under both Articles 7 and 24.34 As an issue under Articles 3, 7, 24 and 26, the Committee has raised concern at irreversible and invasive medical interventions for purposes of gender assignment in infants and children of an age at which they would be unable to provide fully informed and free consent,35 and under Articles 2, 7, 17, 24 and 26 involuntary non-therapeutic sterilisation of girls with intellectual disabilities and/or cognitive impairments.36 Domestic violence often involves children, as an Article 24 matter, and is discussed further in the chapter on Article 7.37 Slavery, Servitude and Forced Labour: Article 8 One of the worst modern afflictions for children is the scourge of human trafficking. Because it affects men, women and children, and has been consistently raised by the Committee under Article 8, it is primarily addressed in this work in the chapter on Article 8. Article 24 issues include the special risks to which street children, orphans and children in care homes (among other groups) are exposed,38 forced marriage under customary and religious laws,39 child labour, prostitution and pornography,40 and the vulnerability of children in domestic work to sexual abuse.41 As an Article 24 issue the Committee has raised concern at child labour;42 at the frequency of sexual violence involving children;43 at the low age of sexual consent, which needed raising from 13 years in Japan with a view to protecting 34 See chapter on Article 7: Torture, Cruel and Inhuman or Degrading Treatment or Punishment, section ‘Corporal Punishment’. 35 Australia CCPR/C/AUS/CO/6 (2017) 25; Switzerland CCPR/C/CHE/CO/4 (2017) 24. 36 Australia CCPR/C/AUS/CO/6 (2017) 23 (the subject of a report of the Senate Standing Committee on Community Affairs). 37 See chapter on Article 7: Torture, Cruel, Inhuman or Degrading Treatment or Punishment, sections ‘Cruel Inhuman or Degrading Treatment’, ‘Domestic Violence’. For domestic violence affecting children, see, e.g., Mongolia CCPR/C/MNG/CO/6 (2017) 17; Romania CCPR/C/ROU/ CO/5 (2017) 23; Lithuania CCPR/C/LTU/CO/4 (2018) 29. 38 See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour, section ‘Human Exploitation by Trafficking’. 39 See ibid., section ‘Forced Marriage’. 40 See ibid., section ‘Child Exploitation’. 41 See ibid., section ‘Domestic Servitude’. 42 See, e.g., Dominican Republic A/40/40 (1985) 402; Bolivia A/44/40 (1989) 428; Italy A/44/40 (1989) 600; India CCPR/C/79/Add.81 (1997) 34; Ecuador CCPR/C/79/Add.92 (1998) 17; Philippines CCPR CCPR/CO/79/PHL (2003) 17; Portugal CCPR/CO/78/PRT (2003) 19; Morocco CCPR/CO/82/MAR (2004) 31; Tanzania CCPR/C/TZA/CO/4 (2009) 25; Jordan CCPR/C/JOR/CO/4 (2010) 17; Uzbekistan CCPR/C/UZB/CO/3 (2010) 23; Philippines CCPR/ C/PHL/CO/4 (2012) 23; Turkmenistan CCPR/C/TKM/CO/1 (2012) 20; Malawi CCPR/C/MWI/ CO/1 (2014) 26; Ecuador CCPR/C/ECU/CO/6 (2016) 33. For an analysis of child labour in the context of social, economic and cultural issues, see Holly Cullen, The Role of International Law in the Elimination of Child Labor (Brill, 2007). 43 E.g., Belgium CCPR/CO/81/BEL (2004) 28; Djibouti CCPR/C/DJI/CO/1 (2013) 21.

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the normal development of children and preventing child abuse;44 and at the sexual abuse of children by child pornography.45 (It also commended States for ratifying the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.46) Street children have been a recurring concern of the Committee: the Committee expects information on their situation in country reports and in particular on measures taken for their protection;47 it has recommended that programmes be devised offering support and assistance for street children,48 that stern measures be taken against those committing any kind of violence against minors, especially those who endure hard living conditions;49 it has pointed to the need for protection and rehabilitation of street children and abandoned children as a matter of grave concern;50 it drew attention to the plight of those street children whose parents had died as a result of either armed conflict or AIDS;51 and the special risks street children face of sexual violence and sexual trafficking.52 For most of these issues the Convention on the Rights of the Child adds much. It identifies the need for wide-ranging measures to protect children from all forms of physical or mental violence, injury or abuse, neglect, mistreatment or exploitation, including sexual abuse;53 it recognises their need for protection from economic exploitation and work which is hazardous or harmful to their development,54 from sexual exploitation through inducement or coercion to engage in unlawful sexual activity, exploitative use in prostitution or other unlawful sexual practices, or in pornography;55 and it requires appropriate measures to prevent the abduction or trafficking of children.56 In addition to monitoring implementation of the Convention on the Rights of the Child, the CRC Committee also monitors implementation of the Optional Protocol on the Sale of Children, Child

44 Japan CCPR/C/JPN/CO/5 (2008) 27. See also El Salvador CCPR/C/SLV/CO/7 (2018) 39 (lack of legal standards governing the minimum age of consent to sexual relations). 45 E.g., Mexico CCPR/C/79/Add.109 (1999) 15; Guatemala CCPR/CO/72/GTM (2001) 26; Czech Republic CCPR/CO/72/CZE (2001) 23; Burkina Faso CCPR/C/BFA/CO/1 (2016) 35. See also Belgium CCPR/C/79/Add.99 (1998) 27 (paedo pornography with no reference to a particular Covenant provision). 46 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 16 March 2001, A/RES/54/263, entered into force 18 January 2002. 47 E.g., Tanzania CCPR/C/TZA/CO/4 (2009) 25. See also Bolivia A/44/40 (1989) 428. 48 E.g., Philippines CCPR CCPR/CO/79/PHL (2003) 17. Armenia CCPR/C/79/Add.100 (1998) 17. 49 E.g., Guatemala CCPR/C/79/Add.63 (1996) 32. 50 E.g., Romania CCPR/C/79/Add.111 (1999) 5. See also Albania CCPR/C/ALB/CO/2 (2013) 20 (lack of cooperation with Greek authorities to establish the whereabouts of 502 Roma street children from Albania, who went missing after being arrested by Greek police for begging). See also Congo CCPR/C/COD/CO/4 (2017) 45. 51 E.g., Congo CCPR/C/COD/CO/3 (2006) 24. 52 E.g., Mexico CCPR/C/79/Add.109 (1999) 15; Guatemala CCPR/CO/72/GTM (2001) 26. 53 Convention on the Rights of the Child Art. 19. 54 Ibid., Art. 32. 55 Ibid., Art. 34. 56 Ibid., Art. 35.

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Prostitution and Child Pornography,57 and the Optional Protocol on the Involvement of Children in Armed Conflict.58 Armed conflict is associated with Article 8 in the context of compulsory military service, and the exclusion from ‘forced or compulsory labour’ under Article 8(3)(c)(ii) of military service and its alternatives. This, however, does not excuse the use and abuse of children in armed conflict. For example, the Committee expressed concern about the obligation in San Marino to serve in the military from the age of 16;59 serious concern about the use of children (i.e., under 18 years of age) in Yemen in the manning of military check-points;60 and at the enlistment of children in armed groups and militias in civil war conditions in the Congo;61 it urged Sudan to eradicate the recruitment and use of child soldiers, as well as to ensure their prompt disarmament, demobilisation and reintegration;62 it recommended effective measures towards children caught up in the activities of guerrilla and paramilitary groups in Colombia,63 and assistance and counselling to children in the Philippines who had been involved in armed conflict, to support their rehabilitation and reintegration.64 Under the Convention on the Rights of the Child States are to take all feasible measures to ensure that those under 15 years of age do not take a direct part in hostilities, and refrain from recruiting them into the armed forces. They are to take all feasible measures to ensure protection and care of children affected by armed conflict, and all appropriate measures to promote physical and psychological recovery and social reintegration of child victims of armed conflicts.65 57 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 16 March 2001, A/RES/54/263, adopted and opened for signature, ratification and accession by General Assembly Resolution A/RES/54/263 of 25 May 2000, entered into force 18 January 2002. 58 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, adopted and opened for signature, ratification and accession by General Assembly Resolution A/RES/54/263 of 25 May 2000, entered into force 12 February 2002. 59 San Marino CCPR/C/SMR/CO/2 (2008) 15; San Marino CCPR/C/SMR/CO/3 (2015) 20. 60 Yemen CCPR/C/YEM/CO/5 (2012) 23. 61 Congo CCPR/C/COD/CO/3 (2006) 18; Congo CCPR/C/COD/CO/4 (2017) 45 (large scale involvement of children in armed conflict). 62 Sudan CCPR/C/SDN/CO/3 (2007) 17; Sudan CCPR/C/SDN/CO/4 (2014) 24. 63 Colombia CCPR/C/79/Add.76 (1997) 27. 64 Philippines CCPR CCPR/CO/79/PHL (2003) 17. 65 Convention on the Rights of the Child Arts 38(2) (4) and 39. On contemporary norms on the prohibition of the use and recruitment of child soldiers and whether they are capable of better enforcement, see Gus Waschefort, International Law and Child Soldiers (Bloomsbury, 2014). Shaheed Fatima examines the protection offered to children in armed conflict by international humanitarian law, international criminal law and international human rights law, as well as related adjudicative accountability mechanisms, in Protecting Children in Armed Conflict (Bloomsbury, 2018).

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Similar Article 24 concerns attach to the use and recruitment of children for criminal activities by gangs, and by terrorist groups.66 The Right to Liberty and Security of Person: Article 9 A number of aspects of the right to liberty and personal security in Article 9 affect children in a specific way. On the need for preventive measures against violation of the right to personal security the General Comment on Article 9 urges States to respond appropriately to patterns of violence and makes special mention of violence against children.67 Although that right exists autonomously of the right to liberty the two are violated concurrently in the case of enforced disappearance, which also typically entails adverse treatment contrary to Articles 7 and 10(1), and the loss of recognition of legal personality under Article 16. Nothing prevents concurrent Article 24 findings of violation in such circumstances. In Djebbar and Chihoub v. Algeria the Committee found a violation of Article 24 in relation to Mourad Chihoub amid violations of Articles 6(1), 7, 9, 10(1), 16, and of Article 2(3) read in conjunction with all those provisions, when as a victim of enforced disappearance he was arrested at the age of 16, without an arrest warrant or any explanation, and then detained incommunicado and deprived of all contact with his family for fifteen years. The State did not ensure the special protection required for children under 18 years of age.68 The detention of a minor is not per se a violation of Article 24.69 However, the prohibition in Article 9(1) against ‘arbitrary’ arrest or detention requires any loss of liberty to be subject to close scrutiny wherever it occurs, and this is particularly strict in the case of children.70 The detention of asylum seekers must be justified as reasonable, necessary and proportionate, and reassessed as it extends in time. Children especially should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests.71 Children were among the Ocean Viking asylum seekers which led to 66 E.g., Colombia CCPR/C/COL/CO/7 (2016) 40 (use and recruitment of children by illegal armed groups); Honduras CCPR/C/HND/CO/2 (2017) 18 (recruitment of children for criminal activ ities by gangs (maras)); Bulgaria CCPR/C/BGR/CO/4 (2018) 33 (lack of sufficient protection against prosecution of teenage children forcibly recruited to terrorist groups). 67 General Comment No. 35: Article 9 (Liberty and Security of Person), 16 December 2014, CCPR/ C/GC/35 (GC 35) [9]. 68 Djebbar and Chihoub v. Algeria, CCPR/C/103/D/1811/2008, 31 October 2011 [8.10], [9]. 69 Jalloh v. Netherlands, CCPR/C/74/D/794/1998, 26 March 2002 [8.3]. 70 Article 9(1) is reflected for children in Art. 37(b) of the Convention on the Rights of the Child: ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.’ 71 E.g., Slovakia CCPR/C/SVK/CO/4 (2016) 31. For concerns about the prolonged detention of migrants, including children, see, e.g., Australia CCPR/C/AUS/CO/6 (2017) 37; Hungary CCPR/C/HUN/CO/6 (2018) 45; Lebanon CCPR/C/LBN/CO/3 (2018) 37. For conditions in immigration detention, see, e.g., Thailand CCPR/C/THA/CO/2 (2017) 29 (children being detained and separated from their relatives without access to school and placed in cells with

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the claim in F.K.A.G. et al. v. Australia, who remained in continuous indefinite detention on security grounds. The decision to detain children must take account of their needs, as well as the needs of others who may be vulnerable because of their mental health condition.72 In Bakhtiyari v. Australia the Committee found that the immigration detention of a mother and her children was in violation of Article 9.73 The particular circumstances of the children included reported deep depressive effects of their on-going detention, instances of self-harm, including when the two boys stitched their lips together, slashed their arms, voluntarily starved themselves and behaved in numerous erratic ways, including drawing disturbed pictures. A social services assessment report recommended that Mrs Bakhtiyari and her children be released into the community in order to prevent further social and emotional harm to them, and that increased and better-focused health, education and recreational resources be provided, as well as greater care to protect and shield the children from situations of danger and trauma within the compound. In finding a violation also of Article 24 the Committee stressed that ‘the principle that in all decisions affecting a child, its best interests shall be a primary consideration, forms an integral part of every child’s right to such measures of protection as required by his or her status as a minor, on the part of his or her family, society and the State, as required by’ Article 24(1). The children suffered demonstrable, documented and on-going adverse effects of detention, and the State had not been guided by the best interests of the children, until a court decision which determined it had welfare jurisdiction with respect to the children.74 The involuntary hospitalisation of children, including for psychiatric reasons, must be subject to clear procedures for challenging confinement and proper judicial review.75 Under Article 9(2) those arrested are to be informed of the reason for it at the time of their arrest, and are to be informed promptly of any charges against them,

72

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adult detainees, where they were at risk of physical and sexual abuse); El Salvador CCPR/C/ SLV/CO/7 (2018) 31 (unsuitability of premises for the purpose of detaining migrants including families with young children). F.K.A.G. et al. v. Australia, CCPR/C/108/D/2094/2011, 26 July 2013 [9.3]. For further discus sion, see chapter on Article 9: Liberty and Security, section ‘Reasonableness, Necessity and Proportionality’. See also Czech Republic CCPR/C/CZE/CO/2 (2007) 15 (concern that, a foreigner awaiting deportation who is under the age of 18 may be detained for up to ninety days (Arts 10 and 24)). The case is discussed in the chapter on Article 9: Liberty and Security, section ‘Immigration Detention (including Mandatory Detention)’. Bakhtiyari and Bakhtiyari v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [4.1], [4.7], [9.7]. Cf. D and E et al. v. Australia, CCPR/C/87/D/1050/2002, 11 July 2006 [6.4] (the Committee considered, in the light of the State’s explanation of the efforts undertaken to provide children with appropriate educational, recreational and other programs, including outside the facility, that insufficiently substantiated). Azerbaijan CCPR/C/AZE/CO/4 (2016) 12.

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to enable them to seek release if the reasons are invalid or unfounded. In the case of children it is necessary also to inform their parents or guardians.76 Detainees should be guaranteed prompt and regular access to independent medical personnel and lawyers and, under appropriate supervision when the legitimate purpose of the detention so requires, to family members. An Article 24 violation resulted in Kashtanova and Slukina because two minors aged 14 and 15 were questioned as suspects to the murder of a classmate, in the absence of attorneys or parents, and were not allowed family visits for the first three months of their detention. Article 24 entails special measures to protect the personal liberty and security of every child, in addition to measures generally required by Article 9 for everyone. As minors, they should have been afforded that special protection.77 Article 9(3) requires anyone arrested or detained on a criminal charge to be brought promptly before a judge. If they are to be tried the court determines at this stage whether they are to be remanded in custody or on bail. The Committee has considered that 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing, but the expectation of the CRC Committee is 24 hours in the case of every child.78 Both the Human Rights Committee and the CRC Committee have stated that juveniles should not be kept in custody if at all possible.79 Detention is generally inappropriate below a certain age.80 The CRC Committee has recommended strict legal provisions to ensure that the legality of a pre-trial detention is reviewed regularly, preferably every two weeks,81 and to ensure that a final decision on charges is made within six months of being presented.82 Article 9(4) entitles anyone to take proceedings before a court in order to determine without delay the lawfulness or otherwise of their detention.83 76 Krasnov v. Kyrgystan, CCPR/C/101/D/1402/2005, 29 March 2011 [8.5] (violation resulted from failure to inform a 14 year old child and his legal representative of the reasons for the child’s arrest). See also CRC General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10 (CRC GC 10) [48]. 77 Kashtanova and Slukina v. Uzbekistan, CCPR/C/118/D/2106/2011, 28 October 2016 [8.3]. 78 CRC GC 10 [83]; Jamaica CCPR/C/JAM/CO/4 (2016) 43 (concern that minors are held in police lock ups on a regular basis, often for more than 24 hours). 79 CCPR General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 [42]; CRC General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10 (CRC GC 10) [80] (the duration of pre trial detention of juveniles should also be limited by law and be subject to regular review). In this context, see, e.g., Belgium CCPR/C/79/Add.99 (1998) 21 (grave concern about legislation which entitled authorities to incarcerate minors for a period of fifteen days); Cambodia CCPR/C/79/Add.108 (1999) 15 (concern at reports that children were detained in juvenile detention facilities for considerable periods without charge, and without access to a lawyer or to court); Moldova CCPR/C/MDA/CO/3 (2016) 39 (no time limit for the pre trial detention of children); Poland CCPR/C/POL/CO/7 (2016) 35 (pre trial detention of juveniles exceeding three months). 80 E.g., Guyana CCPR/C/79/Add.121 (2000) 16 (profound concern that children, including chil dren under 10 years of age, were held in detention on remand). 81 CRC GC 10 [83]. 82 CRC GC 10 [83]. 83 Article 9(3) and (4) is adapted for children in Art. 37(d) of the Convention on the Rights of the Child: ‘(d) Every child deprived of his or her liberty shall have the right to prompt access to legal

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Conditions of Detention: Article 10(1) Article 10(1) contains the obligation applicable to ‘all persons deprived of their liberty’, regardless of age, to be treated with humanity and with respect for the inherent dignity of the human person. It is reflected for children in the Convention on the Rights of the Child, which requires their treatment in a manner which takes into account the needs that are associated with their particular age.84 The treatment of juveniles in detention is addressed in the chapter on Article 10. It covers the segregation of juveniles from adults in migration detention,85 and in the criminal justice system, as well as the need for speedy adjudication of accused juveniles, and treatment appropriate to their age and legal status.86 Articles 10(1) and 24 apply to every form of detention, but of particular importance to children are conditions of institutional care.87 The Committee read Article 10 together with Article 24(1) in Brough v. Australia to find violations of Article 10(1) and (3), and of Article 24(1), as the result of the hardship of the imprisonment of an aboriginal inmate with an intellectual disability who was given to self-harm. He was subjected to extended confinement in a safe cell, supposedly to provide ‘a safe, less stressful and more supervised environment where [he] may be counselled, observed and assessed for appropriate placement or treatment’. This left him without any possibility of communication, he suffered prolonged exposure to artificial light and his clothes and blanket were removed.88 Article 24 was also found to be violated in Thomas v. Jamaica, as were Article 10(2) and (3) on the same facts, when a 15-year-old was kept among

84 85 86

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and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.’ Article 37(c) of the Convention on the Rights of the Child. See chapter on Article 10: Treatment of Those Deprived of Their Liberty, sections ‘Article 10(1): Treatment of Detainees in Violation of Articles 10(1) and/or Article 7’, ‘Immigration Detention’, ‘Conditions of Detention’, ‘Vulnerable Detainees’. See chapter on Article 10: Treatment of Those Deprived of Their Liberty, sections ‘Article 10(1): Treatment of Detainees in Violation of Articles 10(1) and/or Article 7’, ‘Article 10(2)(b): Segregation of “Accused juveniles” from Adults (in pre Trial Detention) and Speedy Appearance for Adjudication’, ‘Article 10(3): Segregation of Juvenile Offenders from Adults, Treatment Appropriate to Their Age and Status, and the Purpose of Penal System’. Under Art. 24 the Committee has been concerned with institutional care of children: e.g., Poland CCPR/C/POL/CO/6 (2010) 24 (concern that children who ran away from foster care centres could be placed in police custody centres for children); Poland CCPR/C/POL/CO/7 (2016) 35 (placement of juveniles in temporary isolation rooms as a form of disciplinary sanction or for diagnostic purposes upon their arrival at correctional facilities); Romania CCPR/C/ROU/CO/5 (2017) 41 (concern about the living conditions and state of health of institutionalised children and the inadequate monitoring to prevent abuse and exploitation of children placed in childcare facilities); Guatemala CCPR/C/GTM/CO/4 (2018) 32 (large number of children living in sub standard conditions in care institutions). Brough v. Australia, CCPR/C/86/D/1184/2003, 17 March 2006 [9.3] [9.4].

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adult prisoners. It is incumbent upon the State, where a complaint of nonsegregation from adult prisoners is made in respect of a serving prisoner, to verify whether that prisoner is, or has at any relevant stage, been a minor.89 Serious allegations of brutalisation by wardens were ignored by the prison authorities, and which were unrefuted but ultimately held by the Committee to be inadmissible because they were transmitted after Jamaica’s denunciation of the Optional Protocol. Blessington and Elliot v. Australia has already been discussed in detail in the chapter on Article 10, but it is worth highlighting the Committee’s statement that Article 24(1) ‘takes into account the vulnerability and immaturity of children, as well as their capacity for development. The entitlement of children to special consideration also informs article 10, paragraphs 2(b) and 3, and article 6, paragraph 5, of the Covenant, which prohibits the imposition of death sentences for crimes committed by persons below eighteen years of age.’ In that instance, Article 24(1) prevented the conclusion being reached that a juvenile’s actions made them incapable of rehabilitation and undeserving of release, regardless of any future personal and social development, for the entire length of a lifetime. The Committee added that while its own role was to monitor the implementation of the Covenant, Article 37(a) of the Convention on the Rights of the Child was a valuable source informing the interpretation of the Covenant.90 The Committee has raised with the United States, in reference to Articles 7 and 24, that forty-two states of the federal government had laws allowing those under 18 at the time of committing an offence to receive life sentences without parole, and it was of the view that sentencing children to a life sentence without parole was itself not in compliance with Article 24(1). It also encouraged withdrawal of the reservation relied on in this respect.91 Even though rehabilitation is an Article 10(3) matter, the Committee has also raised it under Article 24 in country reviews.92 Migrant and Displaced Children: Articles 12 and 13 The chapters on Articles 12 and 13 touch on the risks faced by unaccompanied migrant children and displaced children, as well as procedures and practices which increase the vulnerability of migrants, or which render them stateless. These have 89 90 91 92

Thomas v. Jamaica, CCPR/C/65/D/800/1998, 26 May 1999 [6.5] [6.6]. Blessington and Elliot v. Australia, CCPR/C/112/D/1968/2010, 22 October 2014 [7.11]. USA CCPR/C/USA/CO/3/Rev.1 (2006) 34. Costa Rica CCPR/C/CRI/CO/6 (2016) 39 (concern at the lack of effective measures for the social reintegration of children in conflict with the law (Art. 24)). (Curiously, when expressing concern to Sierra Leone at the possibility of life imprisonment for juveniles it did not mention Art. 24(1): Sierra Leone CCPR/C/SLE/CO/1 (2014) 21.)

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a detrimental impact on access to basic services such as education for children and lead to an increased vulnerability to becoming involved in criminal trafficking and prostitution networks.93 Juvenile Justice: Article 14(4) The minimum age of criminal responsibility is a recurring Committee concern for incompatibility with Article 24, where in particular States it has been as low as 794 or 8 years of age,95 for which immediate remedial action was recommended, including compliance with the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules),96 the UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines)97 and the UN Rules for the Protection of Juveniles Deprived of their Liberty.98 The Committee has also been concerned at proposals to lower the minimum age of criminal responsibility to 16.99 The Committee has pointed out the incompatibility with Articles 14(4) and 24 of provisions which permit children to be charged as adults,100 or jointly with adults and tried in ordinary criminal courts.101 A number of other established principles are also important to observe, notably: the right of minors to be treated in a way that will promote their integration into society; that detention and incarceration should be used only as a last resort; the right of minors to be heard in criminal proceedings that concern them; and to have appropriate legal assistance made available to them.102 It is a matter of obvious concern if a State cannot implement in the juvenile system the right to free legal assistance in accordance with Article 14(3)(d), that is, whenever the interests of justice so require (Belize).103 It has taken issue with Lebanon over the jurisdiction of military courts over civilians, including children,104 and the powers in Mauritius that result in 93 See chapters on Article 12: Freedom of Movement of the Person, section ‘Interaction between Article 12 and other Covenant Provisions’; Article 13: Procedural Safeguards in the Expulsion of Aliens, section ‘Interaction between Article 13 and Other Covenant Provisions’. 94 E.g., HK SAR CCPR/C/79/Add.117 (1999) 17; Grenada CCPR/C/GRD/CO/1(2009) 18. 95 E.g., Zambia CCPR/C/79/Add.62 (1996) 19; Kenya CCPR/CO/83/KEN (2005) 24. See also Sri Lanka CCPR/C/79/Add.56 (1995) 20 (a child above 8 years of age and under 12 could be held to be criminally responsible on the determination by the judge of the child’s maturity of under standing as to the nature and consequence of their conduct); Hungary CCPR/C/HUN/CO/6 (2018) 29 (lowered from 14 to 12 years for heinous crimes); Australia CCPR/C/AUS/CO/6 (2017) 43 (the age of criminal responsibility 10 years for certain offences). 96 UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), Resolution, adopted by the General Assembly, 29 November 1985, A/RES/40/33. 97 UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), Resolution, adopted by the General Assembly, 14 December 1990, A/RES/45/112. 98 UN Rules for the Protection of Juveniles Deprived of Their Liberty, Resolution, adopted by the General Assembly, 2 April 1991, A/RES/45/113; Grenada CCPR/C/GRD/CO/1 (2009) 17. 99 E.g., Uruguay CCPR/C/URY/CO/5 (2013) 20. See also Cyprus CCPR/C/79/Add.39 (1994) 13. 100 E.g., Uruguay CCPR/C/URY/CO/5 (2013) 20. 101 E.g., Zambia CCPR/C/79/Add.62 (1996) 19. 102 E.g., Uruguay CCPR/C/URY/CO/5 (2014) 20. 103 Belize CCPR/C/BLZ/CO/1 (2013) 7. 104 Lebanon CCPR/C/LBN/CO/3 (2018) 43.

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children who are considered to be ‘beyond control’ being placed in closed institutions at the request of their parents.105 In Berezhnoy v. Russian Federation failure to adopt special measures to protect a 16 year old, resulting in his mother only being appointed as his legal representative almost two months after his arrest, placed him in a vulnerable position. Unimpeded access by a parent, legal guardian or legal representative could have played a crucial role in protecting his Article 14 rights throughout the criminal proceedings (including the right to counsel of his own choosing, a speedy trial and adequate time and facilities to prepare his defence).106 Recognition as a Person before the Law: Article 16 The role of Article 24, as the primary means of guaranteeing the protection for children required by their status, is well illustrated by De Gallicchio v. Argentina. Its factual setting was a period of State terrorism in Argentina in which tens of thousands disappeared while their children were abandoned. The author was the grandmother of a child whose parents had disappeared when the child was nine months old. The grandmother’s quest to locate the child succeeded when she was found at the age of seven in the care of a nurse who claimed to have taken care of her since birth. When blood tests revealed that the child was the author’s granddaughter (with a probability of 99.82 per cent) the nurse was committed to preventive detention on suspicion of having concealed the whereabouts of a minor and having forged the birth certificate, and the author was granted ‘provisional’ guardianship of the child. The nurse immediately applied for visiting rights, which were granted, and at the same time the court held that the author had no standing in the proceedings about the child’s guardianship since only the parents and the legal guardian could directly participate. The author relied on psychiatric evidence reporting the adverse effects of the nurse’s visits, to apply to have those visits discontinued, but her action was dismissed because of her lack of standing, and this decision was upheld on appeal. Her granddaughter continued to bear the name given to her by the nurse. The Committee found that the denial of the author’s standing effectively left the child without adequate representation, thereby depriving her of the protection to which she was entitled as a minor, in violation of Article 24. The child’s legal identity was not officially recognised until some ten years after her grandmother found her, because of the length of the judicial procedures involved, some of which were still outstanding at the time of the Committee’s decision. The protection commanded under Article 24 required the State to take affirmative action to grant the author’s grandchild prompt and effective relief from her predicament. Bearing in mind the suffering already 105 Mauritius CCPR/C/MUS/CO/5 (2017) 39. 106 Berezhnoy v. Russian Federation, CCPR/C/118/D/2107/2011, 28 October 2016 [9.7] (violation of Art. 14(4), read in conjunction with Art. 24(1)).

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endured by the grandchild, who lost both of her parents under tragic circumstances imputable to the State, the Committee found that the special measures required under Article 24(1) were not expeditiously applied by Argentina; indeed the grandchild’s legal identity was only officially recognised when she was almost 18. The failure to recognise the standing of the author in the guardianship and visitation proceedings, and the delay in legally establishing the grandchild’s real name and issuing identity papers was also in violation of Article 24(2), designed to promote recognition of the child’s legal personality.107 The Committee found no violation of Article 16 because the State had not denied the grandchild recognition as a person before the law; on the contrary, the courts endeavoured to establish her identity and issued her identity papers accordingly. Discussion in the chapter on Article 16 reveals from the Committee’s review of State reports the potential application of Article 16 in a variety of situations, including the exposure of children to the risks of human trafficking.108 Guardianship issues are also normally an Article 24 concern.109 However, it would appear that the Committee does not always raise Article 24 issues where it could. In response to the practice in France of ‘packing’, in which autistic children and psychotic adults were allegedly wrapped in extremely cold, wet sheets for experimental purposes,110 the Committee curiously did not explicitly mention Article 24, only Articles 7, 16 and 26.111 Interference with the Family: Article 17; Protection for the Family: Article 23 Articles 24, 17 and 23 are frequently violated in combination in situations of family separation on deportation, failed attempts at family reunification, and in family law matters concerning the custody of children, parental access and the State care of children.

Family Separation on Deportation Family separation is discussed more fully in the chapters on Articles 17 and 23.112 Not all claims concern Article 24. Those that do tend to be limited in Article 24 107 De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [10.2] [10.5]. For required ‘special measures’, see GC 17 [1], [4], [6] and [7]. 108 See chapter on Article 16: Recognition as a Person before the Law, section ‘Situations of Vulnerability to Article 16 Violation’. 109 E.g., Croatia CCPR/C/HRV/CO/3 (2015) 20 (recommendation to establish clear criteria for appointing guardians and measures necessary to ensure that guardianships for unaccompanied minors are assigned to persons who will represent the minors’ best interests). 110 France CCPR/C/FRA/CO/5 (2015) 20. 111 See chapter on Article 16: Recognition as a Person before the Law, section ‘Legal Capacity of Those with Disabilities’. 112 Chapters on Article 17: Privacy, Home, Correspondence; Honour and Reputation, sections ‘Arbitrariness’, ‘Objective Justification in the Light of the Reasons for Interference and the

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reasoning and follow from the findings relating to Articles 17 and 23. For example, in Winata v. Australia the Committee held that a decision to deport the parents of a 13-year-old who had lived in Australia all his life and had acquired citizenship (by living in Australia for ten years) would violate Article 17(1) in conjunction with Article 23 in respect of all the family and Article 24 in relation to the child. The decision would compel the family to choose whether the child either remained alone in Australia or accompanied his parents to Indonesia following their deportation. (The parents arrived in Australia on a visitor’s visa and a student visa and remained unlawfully after their visas expired.) The decision was arbitrary when the child had grown up in Australia from birth, had attended Australian schools as an ordinary child would and developed social relationships, in the absence of additional factors to justify the parents’ removal beyond the simple enforcement of immigration law. The element supporting a violation of Article 24(1) was simply described as the failure to provide the child with the necessary measures of protection as a minor.113 The Article 24 finding was similarly expressed in Madafferi v. Australia in favour of four minor children. As discussed in the chapter on Article 17, it concerned claims to avoid family separation by Mr Madafferi’s threatened deportation. This would cause psychological and financial problems for all concerned, but more particularly for the children, considering their young ages. If Mrs Madafferi and the children were to emigrate to Italy in order to avoid separating the family, they would have to live in an unfamiliar country where they did not speak the language, and would also have to take care of Mr Madafferi, who by then suffered psychological difficulties following his detention in an immigration centre.114 The principle that in all decisions affecting a child his or her best interests shall be a primary consideration has been given prominence in some Article 24 determinations, including Bakhtiyari et al. v. Australia and Maalem and Maalem v. Uzbekistan, but not all.115

Degree of Hardship’, ‘Family’, ‘Family Separation on Deportation’; Article 23: Protection for the Family, sections ‘Approaches to Article 23 in Different Circumstances’, ‘Family Separation and Reunification’. 113 Winata and Li v. Australia, CCPR/C/72/D/930/2000, 26 July 2001 [7.1] [7.3]. Such extra ordinary circumstances justifying removal that go beyond a simple enforcement of its immigra tion law were not present in Sahid v. New Zealand, CCPR/C/77/D/893/1999, 28 March 2003 [8.2] when the author’s removal left his grandson with his mother and her husband in New Zealand. 114 Madafferi v. Australia, CCPR/C/81/D/1011/2001, 26 July 2004 [9.8]. 115 Mention was made of the principle in, e.g., Bakhtiyari et al. v. Australia, CCPR/C/79/D/1069/ 2002, 29 October 2003 [9.7]; Maalem and Maalem v. Uzbekistan, CCPR/C/123/D/2371/2014, 17 July 2018 [11.8]; cf. Winata and Li v. Australia and Madafferi v. Australia. In O.A. v. Denmark, CCPR/C/121/D/2770/2016, 7 November 2017, the Committee did not expressly refer to it even though the CRC Committee’s General Comment No. 14 (2013) on the Right of the Child to have His or Her Best Interests Taken as a Primary Consideration was pleaded by the author and would have been operative within the Committee’s determination.

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Family Reunification El-Hichou v. Denmark concerned a claim for family reunification brought by a Moroccan minor living in Morocco who wished to settle in Denmark with his father. His parents divorced before he was born. After the divorce his father moved to Denmark, where he remarried and had two children. Ever since he was born his father had supported him financially, regularly spent summer vacations with him and maintained regular contact through letters and phone calls. His mother in Morocco had custody over him, but in reality he lived with his grandparents. At the age of 11 he applied for a residence permit to remain in Denmark for the purposes of family reunification with his father, but this was refused because his father did not have custody over him. When the author’s mother remarried custody was transferred to his father. A residence permit was still refused because his father could not show he could maintain the child. The author nevertheless left Morocco and joined his father in Denmark. A deportation order against him followed. The State argued that the separation was caused entirely by the choice of the father to live abroad together with his new family. The author by then was 17 years old and capable of looking after himself. He also had strong family, cultural and linguistic ties with Morocco. Two important circumstances weighed in the Committee’s determination: the loss of his paternal grandparents who were his de facto caregivers during the first ten years of his life, and the transfer of custody to his father. What was at stake were his rights as a minor to maintain a pre-existing family life with his father and his half-siblings and to receive requisite protection measures. He could not be held responsible for any decisions taken by his parents in relation to his custody, upbringing and residence. The order to leave, if implemented, would therefore constitute interference with the family contrary to Article 23 and a violation of Article 24(1).116

Child Access and Custody The focus of the Article 24 claim in Laing v. Australia was an Australian court order that a 14-month-old girl be returned to her father in the United States after her mother, the author, abducted her to Australia. The order was made using the facilitating machinery of the Hague Convention on the Civil Aspects of Child Abduction, in the light of the fact that custody had been awarded to the girl’s father in the United States. The author argued that the application of that Convention in this case did not properly address the best interests of the child, among other reasons because of the family separation that would result. The Committee’s response reflects two points of interest. First, that both a custodial and noncustodial parent is entitled to represent their child in OP1 claims without explicit authorisation, but it is always for the author to substantiate that any claims made 116 El Hichou v. Denmark, CCPR/C/99/D/1554/2007, 22 July 2010 [7.3] [7.5].

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on behalf of the child represent the best interests of the child. Secondly, the Committee accepted that the application of the Hague Abduction Convention does not exclude the applicability of the Covenant, but in the circumstances the author had failed to show that the operation of that convention would amount to a violation of her daughter’s Article 24 rights.117 Martínez v. Paraguay demonstrates the Committee’s willingness to intervene in the case of family law decisions of domestic courts which are seriously flawed. On the basis of judicial mishandling by Paraguayan courts after the author approached them under the Hague Abduction Convention seeking care and custody of his daughters (as described in the previous chapter),118 the Committee found Paraguay had not taken the necessary steps to guarantee the family’s rights to protection under Article 23, in respect of the author and his daughters, or the daughters’ right, as minors, to protection under Article 24(1).119 The State’s failure to adopt suitable measures to allow contact between the author and his son, after the child’s removal from Poland by his mother who had moved to Australia, also resulted in an adverse Article 24 finding in Arkadiusz Zoltowski v. Australia because, as the Committee put it ‘the author’s application for access was rejected due to concurrent custody proceedings initiated almost four years earlier’, as well as the absence of any information that the State’s failure to provide access between the author and his son was based on the best interests of the child.120

State Intervention in the Care of Children N.T. v. Canada has already been discussed in the chapter on Article 17.121 The process by which the Canadian legal system reached a conclusion to completely deny the author access to her daughter, without considering a less intrusive and less restrictive option, was a failure to protect the family unit, in violation of Article 23, and of Article 24 with respect to the author’s daughter, who was entitled to additional protection as a minor.122 It was in contrast to Buckle v. New Zealand in which the author unsuccessfully contested the removal of guardianship rights relying on Articles 17, 23 and 24 following the removal of her children, under full judicial scrutiny, because of her inability to look after them adequately.123 State intervention in the care

117 118 119 120

Laing v. Australia, CCPR/C/81/D/901/1999, 9 July 2004 [7.3] (inadmissible). See chapter on Article 23: Protection for the Family, section ‘Custody and Care of Children’. Martínez v. Paraguay, CCPR/C/95/D/1407/2005, 27 March 2009 [7.3] [7.5]. Zoltowski v. Australia, CCPR/C/115/D/2279/2013, 5 November 2015 [7.3, [7.5]. The decision was strongly opposed in Australia’s follow up response to those Views. 121 See chapter on Article 23: Protection for the Family, section ‘Custody and Care of Children’. 122 Tcholatch v. Canada, CCPR/C/89/D/1052/2002, 20 March 2007 [8.7] [8.8]. 123 Buckle v. New Zealand, CCPR/C/70/D/858/1999, 25 October 2000 [9.1] [9.3].

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of children is contemplated in the Committee’s General Comment 17,124 and in the Convention on the Rights of the Child.125 Rajan v. New Zealand concerned the removal of the Rajan family from New Zealand once it became known that residence permits in Australia, on which similar permits were granted in New Zealand, were fraudulently obtained. (Mr Rajan was a Fijian who was granted an Australian residence permit on the basis of a fraudulently declared de facto relationship with an Australian woman. He later married a Fijian woman, who obtained an Australian residence permit on her husband’s residency status.) The decisions of the authorities gave due consideration to the protection of the family and, more particularly, the protection of the children. Other than a statement that because of the children’s youth they would also have to leave New Zealand if their parents were removed, the authors insufficiently reasoned how Articles 17, 23(1) and 24(1) would be violated for their claims to be admissible.126 The confiscation of a passport was not only a definitive barrier to the family reunification sought in El Dernawi v. Libya but the sole barrier. It prevented the author’s wife’s moving to Switzerland to join the author there after he had been granted refugee status, as a member of the Muslim Brotherhood fleeing persecution in Libya on account of his political beliefs. He could not reasonably be expected to return. It violated Article 24 in view of the advantage to a child’s development of living with both parents, in the absence of persuasive countervailing arguments from the State.127

Unaccompanied and Separated Migrants The situation of unaccompanied minors seeking asylum, separated migrant children or illegally resident children has been raised by the Committee in Concluding Observations a number of times under Article 24, out of concern at lack of adequate protection for them,128 and at the lack of clear criteria for appointing guardians for unaccompanied minors to represent their best interests.129 On the treatment of unaccompanied minors more generally, it has been concerned about the methods used to determine the age of children.130 If unaccompanied minors go 124 GC 17 [6]: ‘in cases where the parents and the family seriously fail in their duties, ill treat or neglect the child, the State should intervene to restrict parental authority and the child may be separated from his family when circumstances so require’. 125 E.g., Convention of the Rights of the Child Art. 20. 126 Rajan v. New Zealand, CCPR/C/78/DR/820/1998, 6 August 2003 [7.3]. 127 El Dernawi v. Libya, CCPR/C/90/D/1143/2002, 20 July 2007 [6.3]. 128 E.g., Greece CCPR/CO/83/GRC (2005) 17; Slovenia CCPR/CO/84/SVN (2005) 15; Croatia CCPR/C/HRV/CO/3 (2015) 20; El Salvador CCPR/C/SLV/CO/7 (2018) 31. 129 E.g., Croatia CCPR/C/HRV/CO/3 (2015) 20. On the separation of the child from their parents, see Convention on the Rights of the Child Arts 9 and 10. 130 E.g., Spain CCPR/C/ESP/CO/6 (2015) 23 (age determination procedures should be based on safe and scientific methods, take the children’s feelings into account and avoid all risks of

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missing (as they did from foster care in Slovakia) they should be registered in a suitably maintained register and should be the subject of diligent search operations.131

Liberty of Parents and Legal Guardians to Ensure the Religious and Moral Education of Their Children There is a nuanced interaction between the liberty of parents in Article 18(4) to ensure the religious and moral education of their children in conformity with their own convictions, on the one hand,132 and, on the other, Article 14 of the Convention on the Rights of the Child, which safeguards the choices of both children and parents. For children, the latter requires States to ‘respect the right of the child to freedom of thought, conscience and religion’; for parents, States must ‘respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child’. Under Article 2 of the Convention on the Rights of the Child children are also to be free from discrimination on the basis of their parents’ religion, opinions or other status.

Early Marriage The minimum age of marriage is inseparable from the question of free and full consent, which is the subject of Article 23(3), and also self-evidently an Article 24 matter. It is considered in more detail in the chapter on Article 23.133

violating their physical integrity); Hungary CCPR/C/HUN/CO/6 (2018) 49 (age assessment of child asylum seekers and unaccompanied minors conducted in the transit areas relied heavily on visual examination by an expert and was inaccurate). Jason Pobjoy examines the risk of incorrect assessment of refugee children by reference to leading common law jurisdictions and argues for tighter interaction in international refugee law and international law on the rights of the child in The Child in International Refugee Law (Cambridge University Press, 2017). The strengths and weaknesses of international and domestic laws are discussed in a number of essays with the aim of identifying best practice for migrant children in Mary Crock and Lenni Benson, Protecting Migrant Children: In Search of Best Practice (Edward Elgar Publishing, 2018). More general coverage of the international legal framework and issues relating to children is offered by Trevor Buck in International Child Law (Routledge, 2014). 131 Slovakia CCPR/C/SVK/CO/4 (2016) 32, 33. 132 Human Rights Committee, General Comment No. 22, Article 18, Forty eighth Session, 1993, Compilation of General Comments and General Recommendations, adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 35 (1994) [6], [8] (the right is related to the freedom to teach a religion or belief in Art. 18(1) and cannot be restricted). 133 See chapter on Article 23: Protection for the Family, sections ‘Article 23(2): The Right to Marry and to Found a Family’, ‘Of Marriageable Age’.

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A RT I C L E 2 4 ( 2 ) : EV E RY C H I L D S H A L L B E R E G I S T E R E D I M M E D I AT E LY A F T E R B I RTH A N D S H A L L H AV E A N A M E The obligation in Article 24(2) is owed to ‘every child’ not merely nationals. It helps secure certain aspects of legal identity necessary to a child’s recognition as a person before the law under Article 16. As already observed, in De Gallicchio v. Argentina delay in legally establishing the real name of the author’s grandchild and in issuing identity papers was in violation of Article 24(2), designed to promote recognition of the child’s legal personality.134 Article 24(2) serves to reduce the danger of abduction, sale of or traffic in children, and similar practices.135 It also supports Article 17, which preserves indicia of self-identity such as one’s name, and protects against a forcible change of name on official documents or arbitrary refusal to allow a formal name change.136 A number of aspects of recognition as a person before the law discussed in the context of Article 16 equally provoke issues under Article 24(2), including the failure to issue birth certificates, and the prevalence of unregistered children, particularly within indigenous and rural communities.137 The Committee has referred to Article 24, for example, when expressing concern at birth registration not yet being universal in Benin;138 at the cumbersome steps in Belize for birth registration which left most children without birth registration certificates;139 at reports that in Sudan a large proportion of children were still not registered, and in some parts there were fees and fines for late registration;140 at obstacles to birth registration in El Salvador affecting families living in poverty, including registration fees, fines and the requirement for mothers who have given birth outside a hospital to obtain proof of delivery;141 at a municipal tax requested in Guatemala in order to have a birth registered, even though the tax was eliminated;142 at the absence of a birth registration system for new-borns in certain provinces in Kyrgyzstan and the difficulties encountered by women without a passport in registering their children;143 at reports that in Angola only 31 per cent of children 134 De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [10.5]. See also chapter on Article 16: Recognition as a Person before the Law. 135 GC 17 [7]. For further commentary on trafficking in children and, see section ‘Slavery, Servitude and Forced Labour: Article 8’, this chapter, above. 136 See chapter on Article 17: Privacy, Home, Correspondence; Honour and Reputation, section ‘Choice of Name’. 137 See chapter on Article 16: Recognition as a Person before the Law, section ‘Birth Registration’. 138 Benin CCPR/C/BEN/CO/2 (2015) 34, 35. 139 Belize CCPR/C/BLZ/CO/1 (2013) 22. See also Morocco CCPR/C/MAR/CO/6 (2016) 35 (legal barriers to the registration of newborn child migrants); Lebanon CCPR/C/LBN/CO/3 (2018) 47 (complex procedure for birth registration, which involves high costs and onerous requirements for documentation). 140 Sudan CCPR/C/SDN/CO/4 (2014) 25. 141 El Salvador CCPR/C/SLV/CO/7 (2018) 39. 142 Guatemala CCPR/C/GTM/CO/4 (2018) 34. 143 Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 26.

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under 5 were registered and over 2 million children aged 4 and under were not registered;144 that children of Haitian origin born in the Dominican Republic were deprived of access to official documentation on account of their origins;145 that barriers were encountered in Ghana by recognised refugee children who were born outside that country and did not have birth certificates;146 that foreigners in Korea should apply to their embassies to register the births of their children when this was frequently impossible for asylum seekers, humanitarian status holders and refugees;147 that slow progress was made in Macedonia in issuing registration on birth, and in retroactively identifying cases of children not registered and without identity documents (with additional concern that they may be refused access to health, education and other public services);148 and at a proposed law in Uruguay which would fail to protect fully the new-born child, as it provided that unmarried minor mothers may register their children at any age, while minor fathers may only do so from the age of 16 onwards.149 Romania was encouraged to ensure that the births of street children and abandoned children be registered and that they be guaranteed a name.150

A RT I C L E 2 4 ( 3 ) : EV E RY C H I L D H A S T H E R I G H T TO A C Q U I R E A N ATI O N A L I T Y Article 15 of the Universal Declaration states that ‘[e]veryone has the right to a nationality’ and ‘[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. Equivalent binding provisions could not be achieved in the Covenant, in spite of consensus that children should not become stateless.151 The right to ‘acquire a nationality’ in Article 24(3) represented a modest achievable common denominator, but it left open which nationality a child is entitled to acquire.152 Article 24(3) nevertheless builds on the 1954 Convention relating to the Status of Stateless Persons153 and the 1961 Convention 144 Angola CCPR/C/AGO/CO/1 (2013) 23. 145 Dominican Republic CCPR/C/DOM/CO/5 (2012) 23; Dominican Republic CCPR/C/DOM/ CO/6 (2017) 33 (barriers and unreasonable requirements for the registration of children of Haitian descent). 146 Ghana CCPR/C/GHA/CO/1 (2016) 37. 147 Korea CCPR/C/KOR/CO/4 (2015) 56. 148 Macedonia CCPR/C/MKD/CO/3 (2015) 20. 149 Uruguay CCPR/C/79/Add.90 (1998) 11. 150 Romania CCPR/C/79/Add.111 (1999) 5. 151 See Gerard René De Groot, ‘Children, their Right to a Nationality and Child Statelessness’, in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press, 2014), p. 144. 152 For some of the challenges of interpreting Art. 24(3) in a way that lends it substance, see Nowak, CCPR Commentary, pp. 560 2. 153 Convention Relating to the Status of Stateless Persons, 28 September 1954, UNTS, vol. 360, p. 117, adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A(XVII) of 26 April 1954, entered into force 6 June 1960.

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on the Reduction of Statelessness154 in the protection available specifically to children. Article 24(3) protects the right of every child to acquire a nationality. It does not give rise to an entitlement to a nationality of choice, a point reinforced in GorjiDinka v. Cameroon when the author claimed that he had been denied his right to ‘Ambazonian’ nationality, in violation of this provision, in a number of complaints closely linked to events following decolonisation.155 As General Comment 17 explains, ‘[w]hile the purpose of [Article 24(3)] is to prevent a child from being afforded less protection by society and the State because he is stateless, it does not necessarily make it an obligation for States to give their nationality to every child born in their territory. However, States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born’.156 Rajan v. New Zealand (discussed above) involved an Article 24(3) claim based on the assertion that the authors’ child would be stateless. The communication was inadmissible because even if the family was removed from New Zealand the child retained Australian citizenship.157 In connection with Article 24(3) the Committee has expressed concern that children born to Zimbabweans abroad may not acquire Zimbabwean citizenship;158 that the criteria in Israeli citizenship laws enabled revocation of Israeli citizenship from Arab Israelis;159 it has stressed to Colombia its duty to ensure that every child born there enjoys the right to acquire a nationality (particularly with stateless children in mind);160 that children born in Kuwait whose parents were stateless or whose mother only had Kuwaiti nationality did not acquire nationality;161 and it noted that in Morocco a child born of a Moroccan mother and a foreign father was treated differently from children of a Moroccan father with regard to obtaining Moroccan nationality.162

154 Convention on the Reduction of Statelessness, 30 August 1961, UNTS, vol. 989, p. 175, adopted on 30 August 1961 by a conference of plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954, entered into force 13 December 1975. 155 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [4.10]. 156 GC 17 [8]. 157 Rajan v. New Zealand, CCPR/C/78/DR/820/1998, 6 August 2003 [7.5]. 158 Zimbabwe CCPR/C/79/Add.89 (1998) 19. 159 Israel CCPR/CO/78/ISR (2003) 22. 160 Colombia CCPR/C/79/Add.76 (1997) 43. 161 Kuwait CCPR/CO/69/KWT (2000) 17; Kuwait CCPR/C/KWT/CO/2 (2011) 12. See also Morocco CCPR/C/MAR/CO/6 (2016) 13, 35 (rules for transmission of nationality may mean children born in Morocco become stateless); Jordan CCPR/C/JOR/CO/5 (2017) 8 (inability of Jordanian women to pass their nationality to their children). See also chapter on Article 16: Recognition as a Person before the Law, section ‘Birth Registration’. 162 Morocco CCPR/CO/82/MAR (2004) 32. For similar instances, see chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, section ‘Equality of Rights and Responsibilities of Spouses (Marriage, during Marriage and Dissolution)’.

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The Committee has also enquired about the legal position of children born of stateless parents,163 and it has encouraged registration of children as citizens.164

I M P L E M E N TAT I O N Implementation of Article 24 must produce ‘measures of protection’ by some effective means. As the text of Article 24(1) indicates, responsibility for guaranteeing children the necessary protection lies with the family, society and the State. General Comment 17 elaborates that ‘[a]lthough the Covenant does not indicate how such responsibility is to be apportioned, it is primarily incumbent on the family . . . and particularly on the parents, to create conditions to promote the harmonious development of the child’s personality and his enjoyment of the rights recognized in the Covenant’.165 However, this is no substitute for legislative and other State measures, such as family law spanning (among other things) custody, maintenance and guardianship; laws governing inheritance (particularly to ensure adequate provision is made for children); and criminal law provisions against child abuse and exploitation, to establish a suitable age for criminal responsibility, and to meet the Covenant requirements for juvenile justice. Implementation of Article 24(2) must achieve effective procedures for registering every child after birth and for securing for them a name, with particular emphasis on the practicalities for those members of the community for whom this may be burdensome; and in the case of Article 24(3) must also provide for every child to acquire a nationality (though not necessarily the nationality of the implementing State). Implementation requires special measures.166 Rehabilitative steps are also a constant requirement for child victims.167 As General Comment 17 notes, the measures required, though primarily to ensure the enjoyment of Covenant rights by children, may also be economic, social and cultural. For example, ‘every possible economic and social measure is required’ to reduce infant mortality, to eradicate malnutrition among children, to prevent them from being subjected to 163 E.g., Denmark A/36/40 (1981) 91. 164 E.g., Latvia CCPR CCPR/CO/79/LVA (2003) 17 (concern at the low level of registration as citizens of children born in Latvia to non citizen parents). 165 GC 17 [6]. Art. 5 of the Convention on the Rights of the Child is of particular interest in the interaction between State obligations and the rights and duties of parents, family members and guardians: ‘States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.’ 166 GC 17 [1], [4], [6], [7]. 167 E.g., Ghana CCPR/C/GHA/CO/1 (2016) 32; Jamaica CCPR/C/JAM/CO/4 (2016) 44; Moldova CCPR/C/MDA/CO/3 (2016) 20; Madagascar CCPR/C/MDG/CO/4 (2017) 42; Mongolia CCPR/C/MNG/CO/6 (2017) 28; Pakistan CCPR/C/PAK/CO/1 (2017) 43, 44; Serbia CCPR/ C/SRB/CO/3 (2017) 31; Gambia CCPR/C/GMB/CO/2 (2018) 36.

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cruel and inhuman treatment, or being exploited by forced labour or prostitution, or being used in drug trafficking; and States should ‘take every possible measure to foster the development of [children’s] personality and to provide them with a level of education that will enable them to enjoy the rights recognised in the Covenant, particularly the right to freedom of opinion and expression’.168 In keeping with its expectation for such a range of measures the Committee maintains attention in the review process to issues such as: education (with particular concern for those with disabilities);169 to avoid school dropout,170 including where this results from teenage pregnancy;171 to prevent the employment of children at an age when they should be enrolled in compulsory education,172 including juvenile workers of foreign parentage;173 access for children to essential social services such as healthcare and education and other public services, a particular issue for children who have not been registered at birth,174 or who were born to irregular migrant parents in some countries;175 and the allocation of low-income benefits, particularly where it may be denied to some children.176 Nowak suggests that the 1959 Declaration of the Rights of the Child may be drawn on in interpreting which social and welfare measures may be required by the status as a minor, as well as the Convention on the Rights of the Child, which provides a comprehensive list of civil, political, economic, social and cultural rights.177 The work of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography may also be valuable in this regard, as the only mandate of the UN Special procedures system with an exclusive focus on children.178 As to the particular rights to be protected, stricter legal standards of implementation may be expected for the protection of the Covenant rights of children than for their economic, social and cultural rights under the ICESCR.179 The Covenant rights which most often command Article 24 protection were identified under the heading ‘Article 24(1): Every Child Shall Have the Right to Such Measures of Protection as are Required by His Status as a Minor’ (Articles 2 and 26, 6–10, 12,

168 GC 17 [3]. 169 For Art. 24 concerns about employment and education of children with disabilities, including a lack of support measures to ensure their genuine inclusion, see, e.g., Mongolia CCPR/C/ MNG/CO/6 (2017) 13; Romania CCPR/C/ROU/CO/5 (2017) 19. 170 E.g., Costa Rica CCPR/C/79/Add.107 (1999) 19; Benin CCPR/C/BEN/CO/2 (2015) 34. See also GC 17 [3]; GC 28 [28]. 171 E.g., Zambia CCPR/C/79/Add.62 (1996) 17; Belize CCPR/C/BLZ/CO/1 (2013) 23. 172 E.g., Korea A/47/40 (1992) 486. 173 E.g., Dominican Republic A/40/40 (1985) 402. 174 E.g., Macedonia CCPR/C/MKD/CO/3 (2015) 20. 175 E.g., Suriname CCPR/C/SUR/CO/3 (2015) 43. For access to education by Roma, see Lithuania CCPR/C/LTU/CO/4 (2018) 7; Hungary CCPR/C/HUN/CO/6 (2018) 15. 176 E.g., Canada CCPR/C/79/Add.105 (1999) 18. 177 Nowak, CCPR Commentary, pp. 547 8. 178 Human Rights Council Res. 7/13 of 27 March 2008, has the greatest bearing on the contem porary work of the Special Rapporteur. 179 See Introduction to volume, section ‘Indivisibility of Rights’.

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13, 14(4) and 16). Although there is value in giving close attention to such Covenant rights, and to the role of Article 24 when they are in play, it is also important to recall that a rigid distinction between Covenant and other rights is not made in the text of Article 24, which focuses more generally on what is required by a child’s status, in the circumstances at issue. In this context the principle of interdependence, interrelatedness and indivisibility of human rights has a bearing, which was given prominence in the 1993 Vienna Declaration and Programme of Action. It was fundamental from the very establishment of the United Nations.180

C O N C L US I O N Article 24 serves to answer the specific protective needs children have by virtue of their status. It is clearest in its demands of the State with regard to the enjoyment of Covenant rights. Notable among them are: Article 7 (as a means of opposing FGM and corporal punishment, and accessing therapeutic abortion, e.g., for a child rape victim); Article 8 (in addressing child labour, forced marriage and human trafficking in children); Article 9 (to avoid child detention, to hasten judicial supervision of any such detention, to minimise pre-trial detention, and ensure that parents and guardians are informed); Article 10 (requiring juvenile offenders to be accorded treatment appropriate to their age and legal status, and to be segregated from adults); Article 14(4) (to secure an appropriate age for criminal responsibility and to prevent children being charged as adults, jointly with adults or tried in ordinary criminal courts); Article 16 (securing recognition before the law in proceedings brought by or on behalf of children); Articles 17 and 23 (to prevent separation of a child from the family on deportation and in child custody matters); and Article 26 (in the adverse treatment, e.g., of those born out of wedlock (especially in matters of inheritance and the failure to issue birth certificates for children of particular racial groups). These provisions have been discussed extensively in this chapter, and are themselves clearly understood as a result of established jurisprudence. Some of them already address in their text the particular vulnerability of juveniles (Article 10(2)(b) and (3), Article 14(4)). Shortcomings in the treatment of children against those well-known standards are particularly conspicuous. Article 24 also has significant independent value, including to address shortcomings in the operations of judicial and administrative authorities which neglect relevant criteria in their assessments, such as the best interests of the child as a primary consideration,181 or fail to carry out that assessment thoroughly,182 as well as when they dismiss a child’s claim to be 180 Eide, ‘Interdependence and Indivisibility of Human Rights’, p. 11. 181 Bakhtiyari and Bakhtiyari v. Australia, CCPR/C/79/D/1069/2002, 29 October 2003 [4.1], [4.7], [9.7]. Cf. D and E et al. v. Australia, CCPR/C/87/D/1050/2002, 11 July 2006 [6.4]. 182 X.H.L. v. Netherlands, CCPR/C/102/D/1564/2007, 22 July 2011 [10.3] [11].

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a minor without due diligence,183 or otherwise stall in their protective responsibilities by delay,184 or by the manner in which proceedings are conducted.185 The expectations of Article 24 by way of protection on the part of the child’s family, and society are less specific. So also are the economic, social and cultural measures to be adopted, and indeed the particular economic, social and cultural rights which may be eligible for protection. Concluding Observations go some way towards building a picture, but the contours of Article 24 in this respect still remain indistinct. The role of ‘society’ may be more evident in the case of human trafficking and child abduction, for which the source of violation is predominantly private, and the range of practical responses required extend beyond official measures to community vigilance. The Convention on the Rights of the Child has undoubtedly been a major interpretive influence, particularly in Committee OP1 decisions concerning the best interests of the child, and the Committee has also generally conformed its practice concerning the detention of children with that of the CRC Committee. Unsurprisingly, the Hague Convention on the Civil Aspects of Child Abduction has had little influence in Committee decision-making (its application does not exclude the operation of the Covenant, for example, where it aids a violation) since its purpose is one of facilitating conflict of law resolution as a matter of private international law, rather than to determine fundamental issues of custody and access, which is a matter for the competent domestic court.

183 O.A. v. Denmark, CCPR/C/121/D/2770/2016, 7 November 2017 [8.12]. 184 De Gallicchio v. Argentina, CCPR/C/53/D/400/1990, 3 April 1995 [10.3] [10.5]. 185 L.N.P. v. Argentina, CCPR/C/102/D/1610/2007, 18 July 2011 [3.2], [13.3] [13.4].

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Article 25: Right to Participate in Public Affairs, Electoral Rights and Access to Public Service

INTRODUCTION ‘EVERY CITIZEN SHALL HAVE THE RIGHT AND THE OPPORTUNITY, WITHOUT ANY OF THE DISTINCTIONS MENTIONED IN ARTICLE 2 AND WITHOUT UNREASONABLE RESTRICTIONS’ (A) TO TAKE PART IN THE CONDUCT OF PUBLIC AFFAIRS, DIRECTLY OR THROUGH FREELY CHOSEN REPRESENTATIVES (B) TO VOTE AND TO BE ELECTED AT GENUINE PERIODIC ELECTIONS (C) TO HAVE ACCESS, ON GENERAL TERMS OF EQUALITY, TO PUBLIC SERVICE IN HIS COUNTRY IMPLEMENTATION CONCLUSION

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Covenant Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To Have Access, on General Terms of Equality, to Public Service in His Country Comparable Provisions in Other International Instruments European Convention: Protocol Article 3 (comparable only to Covenant Article 25(b)). American Convention on Human Rights: Article 23. African Charter on Human and Peoples’ Rights: no direct counterpart.

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INTRODUCTION The Position of Article 25 within the Covenant Scheme Article 25 rights fall into two groupings. One is concerned with enfranchisement and addresses the right to vote and be elected by universal and equal suffrage, combined with certain stipulations for elections (such as ballot secrecy and the promise that elections will express the will of electors). It also includes the right to participate in public affairs through representatives thereby elected, and enables influence in public debate and dialogue, which is particularly important for engagement by minorities in decision-making which affects them. The other grouping concerns access to employment within the public service on general terms of equality. Both apply only to citizens.1 The degree to which Article 25 rights are secured domestically may reflect a nation’s health and robustness as a democratic society, and can indicate the state of its human rights compliance more generally. Matters of obvious concern which the Committee encounters include corruption in bodies with electoral oversight; the manipulation of election results suggestive of wider conditions of impunity and non-accountability; the preservation of political incumbency at the expense of the expressive freedoms (the freedoms of expression, assembly and association); fractional participation at different levels of public service, especially where it denotes marginalisation and discrimination;2 and disturbing lack of judicial independence, which itself compromises the ability to challenge corruption by those in power and electoral abuses. While Article 25 requires certain voting and representative rights to be guaranteed, it does not specify any particular constitutional model of government or political system. This facilitates the Covenant’s wider adoption.3 The Committee does not as such oppose any particular model or governmental system, but its review of State reports can be pointed. It has directed its questions and remarks at, for example, how Article 25 rights are protected within a single party system;4 whether a special position occupied by one party implies restrictions on 1 Cf. Art. 2(1), ‘all individuals within [a State Party’s] territory and subject to its jurisdiction’. 2 See section ‘Without Any of the Distinctions Mentioned in Article 2’, below. 3 For an evaluation of the possibilities of applying the idea of deliberative (‘democratic’) legitimacy to the various and diverse systems of law, see Steven Wheatley, ‘A Democratic Rule of International Law’, (2011) 22(2) Eur. J. Int. L., p. 525. Jean D’Aprement comments that although the requirement of democratic origin of governments has gained currency in post Cold War practice and legal scholarship, it would be untrue to say that the acceptance of such a requirement has been unchallenged: Jean D’Apremont, ‘The Rise and Fall of Democracy Governance in International Law: a Reply to Susan Marks’, (2011) 22(2) Eur. J. Int. L., p. 549, at p. 558. For debate on the relationship between international law and democracy, see Susan Marks, ‘What Has Become of the Emerging Right to Democratic Governance?’, (2011) 22(2) Eur. J. Int. L., p. 507. 4 E.g., Iran A/33/40 (1978) 313; Mali A/36/40 (1981) 239; Tanzania A/36/40 (1981) 216; Zambia A/43/40 (1988) 109; Togo A/44/40 (1989) 251; Sudan A/46/40 (1991) 504. The Committee has also expressed concern where only one party is permitted: Viet Nam CCPR/CO/75/VNM (2002) 20.

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establishing other political parties, or discriminatory treatment;5 the effect of a constitutionally defined leading role for one political party where combined with restrictions on the expressive freedoms;6 and the effectiveness of checks and balances in restraining abuse of power where a strong executive presidency existed.7 The focus of Article 25 is on specific guarantees, irrespective of the form of government. As the Committee’s General Comment on Article 25 explains, ‘Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.’8 The qualification ‘in conformity with the principles of the Covenant’ is pivotal. Article 5 also has significance in this context since the exercise of civil and political rights may put in power those with aims which are destructive of Covenant rights, among the most familiar being fascist regimes and those with a militant coercive religious mandate. Article 5 prevents any Covenant right being interpreted as coming to their aid.9 By prohibiting certain forms of advocacy of national, racial or religious hatred Article 20 additionally plays a part in preventing the emergence of harmful extremist political groups.10 Article 25 is distinct from, but is interpreted consistently with, the right to selfdetermination in Article 1(1), by which peoples may determine freely their political status and enjoy the right to choose the form of their constitution or government.11 Indeed, Article 1(1) shaped the outcomes in Gillot v. France when 5 E.g., Yemen A/45/40 (1990) 55; Syria CCPR/CO/71/SYR (2001) 26 (only political parties wishing to participate in the political activities of the National Progressive Front, led by the Baath Party, were allowed). See also Yugoslavia A/33/40 (1978) 382; Mongolia A/35/40 (1980) 103. 6 E.g., Lao CCPR/C/LAO/CO/1 (2018) 37 (Lao People’s Revolutionary Party). 7 E.g., Kenya A/36/40 (1981) 198. 8 General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7 (GC 25) [1]. 9 M.A. v. Italy, Communication No. 117/1981 (21 September 1981), Supp. No. 40 (A/39/40) at 190 (1984), 10 April 1984 [13.3]. For instances where Arts 5 and 25 have been discussed together, see, e.g., Chile A/34/40 (1979) 75 (supreme legislative and constituent powers were vested in the Junta and executive powers in the president of the junta); Jamaica A/36/40 (1981) 273 (could a party based on a fascist or anarchist ideology could legally be formed); Chile A/40/40 (1985) 75 (any action antagonistic to the family or intended to propagate doctrines advocating a totalitarian concept of society, the State or the judicial order was illegal, with retroactive applicability). 10 For an assessment of the pro democracy role of Art. 25 and related rights, see Andreas Mavrommatis, ‘The International Covenant on Civil and Political Rights and Its Role in Promoting Democracy’, in Kalliopa Koufa (ed.), Human Rights and Democracy for the 21st Century (Sakkoulas Publications, 2000), p. 255. For wider coverage, see David Beetham, Democracy and Human Rights (Polity Press, 1999). 11 On the relationship between Arts 1 and 25 in Concluding Observations, see, e.g., Cameroon A/ 44/40 (1989) 474; Ethiopia CCPR/C/ETH/CO/1 (2011) 26. On whether the right of self determination requires a multi party political system, see Vidmar, ‘The Right of Self determination and Multiparty Democracy’, p. 239. Related discussion is also found in Joshua Cohen, ‘Is There a Right to Democracy?’ in Christine Sypnowich (ed.), The Egalitarian Conscience (Oxford University Press, 2006), p. 226.

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the Committee took into account Article 1 in interpreting Article 25, when determining the electorate for referenda to determine the future of French New Caledonia in a process of self-determination,12 and in Käkkäläjärvi et al. v. Finland, when changes affecting eligibility to vote in elections to the Sami parliament required consistency with Article 1.13 Interaction between Article 25 and Other Covenant Provisions To fulfil their purpose, the electoral rights within Article 25 exist in a relationship of arrant dependency on freedom of opinion and expression (Article 19, by which information and ideas about public and political issues are exchanged by citizens, candidates and elected representatives), freedom of assembly (Article 21, enabling rallies, protests and demonstrations), and freedom of association (Article 22, without which political parties would not be freely constituted and fulfil their crucial part in any electoral system). Article 25 concerns are therefore triggered by Article 19 restrictions that result from liability for insulting public officials or the Head of State,14 failure to show respect to the president and other senior officials,15 or for ‘damage to the reputation of society and against the State’;16 constraints on opposition to or criticism of the government17 (including by NGOs, opposition political parties18 and trade unions);19 politically motivated detention, intimidation or other harassment of opposition leaders and activists providing information of public concern;20 unjustified regulation of election campaigns, whether by requiring approval for specific campaigning acts,21 by mandating use of a particular language (preventing ethnic minorities from participating effectively in the electoral process),22 or by

12 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002 [13.4]. 13 Käkkäläjärvi et al. v. Finland, CCPR/C/124/D/2950/2017, 2 November 2018 [9.9] [9.11] (violation of Art. 25, read alone and in conjunction with Art. 27, as interpreted in light of Art. 1). 14 E.g., Congo CCPR/C/COD/CO/4 (2017) 39. See also Thailand CCPR/C/THA/CO/2 (2017) 35 (criminal defamation charges brought against human rights defenders, activists, journalists); Kerrouche v. Algeria, CCPR/C/118/D/2128/2012, 3 November 2016 [8.6]. 15 E.g., Jordan CCPR/C/79/Add.35 (1994) 11; Venezuela CCPR/C/VEN/CO/4 (2015) 19. 16 Yugoslavia A/39/40 (1984) 231. 17 E.g., Libya CCPR/C/79/Add.101 (1998) 15; Libya CCPR/C/LBY/CO/4 (2007) 23; Gambia CCPR CCPR/CO/75/GMB (2002) 23. 18 Rwanda CCPR/C/RWA/CO/3 (2009) 21. 19 E.g., Canada A/35/40 (1980) 174; Chile A/40/40 (1985) 76. 20 E.g., Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 12; Djibouti CCPR/C/DJI/CO/1 (2013) 18; Tajikistan CCPR/C/TJK/CO/2 (2013) 24; Sri Lanka CCPR/C/LKA/CO/5 (2014) 21; Venezuela CCPR/C/VEN/CO/4 (2015) 17; Burkina Faso CCPR/C/BFA/CO/1 (2016) 25; Congo CCPR/C/COD/CO/4 (2017) 39; Belarus CCPR/C/BLR/CO/5 (2018) 56; Sudan CCPR/C/ SDN/CO/5 (2018) 45. 21 Mongolia CCPR/C/MNG/CO/6 (2017) 39. For restrictions on door to door canvassing, as well as the materials that may be distributed, see Japan CCPR/C/JPN/CO/5 (2008) 26. 22 E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 35.

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confining campaigning to particular periods;23 and limitations on the use of broadcast and other media.24 The Committee is particularly vigilant under Article 25 about Article 21 restrictions, including those on assemblies and gatherings which deny the ability to influence public opinion;25 those with demonstrable bias, for example, the systematic denial of authorisation for demonstrations which pose political opposition, when permission is granted for demonstrations favouring the government;26 which constrain political assemblies by the excessive use of force;27 or which involve the official monitoring of meetings of political parties.28 Unjustified Article 22 limitations can entail the inability of political parties to register, contest elections, field candidates or otherwise participate in the formation of a government,29 but more commonly exist in broad grounds for the suspension or dissolution of political parties,30 or disproportionate rules for their registration (such as requiring relatively high numbers of founders, geographical diversity and high fees, particularly affecting new political parties).31 One of the Committee’s enduring concerns is to maintain conditions which allow political pluralism, by objecting to undue discretion to refuse to register a political party or an association;32 recommending remedial measures to the electoral legal framework to foster a culture of political pluralism, and to ensure freedom of genuine and pluralistic political debate;33 and encouraging the promotion of legitimate ideological competition between parties.34 Restrictions on Article 25 also coincide less predictably with Article 12, where internal political exile affects freedom of movement, and harassment of political opponents involves difficulty in their leaving the country to attend meetings abroad;35 or opposition politicians are subjected to travel bans as a retaliatory measure.36 Article 14 would have application where the presumption of innocence 23 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 42. 24 E.g., Armenia CCPR/C/79/Add.100 (1998) 21; Kyrgyzstan CCPR/CO/69/KGZ (2000) 21; Tunisia CCPR/C/TUN/CO/5 (2008) 19. 25 E.g., Belarus CCPR/C/BLR/CO/5 (2018) 52. 26 E.g., Congo CCPR/C/COD/CO/4 (2017) 41. 27 E.g., Uganda CCPR/CO/80/UGA (2004) 22; Burkina Faso CCPR/C/BFA/CO/1 (2016) 25; Congo CCPR/C/COD/CO/4 (2017) 43; Sudan CCPR/C/SDN/CO/5 (2018) 47. 28 E.g., Turkmenistan CCPR/C/TKM/CO/2 (2017) 48. 29 E.g., Swaziland CCPR/C/SWZ/CO/1 (2017) 52. 30 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 53. 31 E.g., Belarus CCPR/C/BLR/CO/5 (2018) 54. 32 On registration of political parties, see, e.g., Tunisia CCPR/C/79/Add.43 (1994) 12; Azerbaijan CCPR/CO/73/AZE (2001) 23; Korea CCPR/CO/72/PRK (2001) 25; Uzbekistan CCPR/CO/71/ UZB (2001) 23; Moldova CCPR/CO/75/MDA (2002) 16; Uzbekistan CCPR/CO/83/UZB (2005) 21; Uzbekistan CCPR/C/UZB/CO/3 (2010) 25; Uzbekistan CCPR/C/UZB/CO/4 (2015) 25; Belarus CCPR/C/BLR/CO/5 (2018) 54. See also Nicaragua CCPR A/38/40 (1983) 236. 33 E.g., Uzbekistan CCPR/C/UZB/CO/4 (2015) 26. 34 E.g., Chile A/40/40 (1985) 75; Egypt CCPR/CO/76/EGY (2002) 22. 35 E.g., Equatorial Guinea CCPR/CO/79/GNQ (2003) 12, 13. 36 E.g., Azerbaijan CCPR/C/AZE/CO/4 (2016) 30; Bahrain CCPR/C/BHR/CO/1 (2018) 49.

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is ignored in the refusal to register as election candidates those against whom criminal charges have been brought but have not resulted in findings of guilt. Ballot secrecy required by Article 25 concurs with the privacy aspects of Article 17, but in some circumstances may give rise to discrimination, for example, on the ground of disability if verbal voting is required for the visually impaired.37 The loss of voting rights for prisoners may also have significant racial implications under Article 26 which cannot be ignored,38 and where consequent on imprisonment for conscientious objection to military service is likely to engage issues under Article 18.39 Chapter Outline The main chapter headings follow the text of Article 25, and additional subheadings are used to address issues which recur in the Committee’s jurisprudence and Concluding Observations.

‘ E V E RY C I T IZ E N SH A L L H AV E TH E R IG H T A N D T H E OP P O RT U N I T Y, WI T H O U T A NY O F T H E D I S T I N C T I O N S M E N T I O N E D IN A RTI C L E 2 A N D W I T H O U T U N R E A S O NA B L E R E S T R I C T I O N S ’ When the drafting proposal was made that every citizen should have political rights ‘irrespective of race, colour, national origin, social position, property status, social origin, language, religion or sex’, it was suggested that ‘political or other opinions’ should be added. ‘National origin’ gave rise to some contention because in some countries a person who had been naturalised was required to wait a certain time before exercising political rights. It was then generally agreed that since nondiscrimination in draft Article 2(1) applied to all articles, it would be preferable to avoid unnecessary repetition, and the simpler formula was adopted, ‘without any of the distinctions mentioned in article 2’.40 The distinctions named in Article 2(1) are ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. In order to meet the need to prohibit restrictions which amounted to discrimination, and allow for the fact that in most countries the right to vote was denied to categories such as ‘minors and lunatics’, and that the right to be elected to public office and the right of access to public service were generally subjected to certain 37 Malta CCPR/C/MLT/CO/2 (2014) 21 (the right to privacy undermined by verbal voting by the blind or visually impaired). 38 E.g., USA CCPR/C/USA/CO/3/Rev.1 (2006) 35; USA CCPR/C/USA/CO/4 (2014) 24. 39 E.g., Turkey CCPR/C/TUR/CO/1 (2012) 23 (conscientious objectors at risk of being sentenced to imprisonment and deprived of their right to vote (Arts. 18 and 25)); 40 A/2929, Ch.VI (1955), p. 60 [176].

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preconditions, the qualification ‘without unreasonable restrictions’ was adopted.41 In this regard, General Comment 25 briefly recounts two principles concerning the restriction of Article 25 rights, which will be elaborated in the following sections. The first goes to the reference to Article 2 distinctions, and is that any conditions which apply to the exercise of Article 25 rights ‘should be based on objective and reasonable criteria’. The example given is of the reasonable requirement of a higher age for election or appointment to particular offices than for the right to vote, which should be available to every adult citizen. The second is that the exercise of Article 25 rights ‘may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable’, for example, established mental incapacity may be a ground for denying a person the right to vote or to hold office.42 Without Any of the Distinctions Mentioned in Article 2 Gillot et al. v. France provides an example of particularly detailed non-discrimination reasoning (derived from Articles 2(1) and 26) in an Article 25 context, when the authors claimed a violation of Articles 2(1), 25 and 26 in the voting criteria for referenda associated with self-determination of the population of New Caledonia. The Committee first examined whether the criteria were discriminatory, and found that they were not, as they were based on objective grounds for differentiation that were reasonable and compatible with the provisions of the Covenant. (The criteria were based on objective elements in differentiating between residents as regards their relationship with New Caledonia, based on the strength of links to the territory. They included a condition of length of residence in New Caledonia (for the referendum relating to whether to continue the process of self-determination), and in addition (for future referenda directly relating to the option of independence) separate qualifying criteria relating to customary civil status, a presence in the territory of moral and material interests, combined with birth of the voter or their parents in the territory.) It next examined the discriminatory purpose and effects of these criteria. The criteria did not have the purpose or effect of establishing different rights for different ethnic groups, or groups distinguished by their national extraction. Voters were included not solely on the basis of particular ties to the territory (such as birth and family connections) but also, in the absence of such ties, on length of residence, so that every specific or general link to the territory was applied to French residents (which included the authors). The criteria were reasonable given that they were applied strictly and solely to ballots held in the framework of a self-determination process (and could only be justified as proportionate in that context, not a general election). It was not unreasonable to limit participation to those concerned by the future of New Caledonia who had proven, sufficiently strong ties to the territory.43 The Committee also addressed the 41 A/2929, Ch.VI (1955), p. 60 [177]. 42 GC 25 [4], [10]. 43 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002 [13.6] [13.18].

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cut-off points set for the length of residence requirement for the referenda (the authors claimed they were excessive), to decide whether they had the purpose or effect of restricting disproportionately the participation of the ‘concerned’ population of New Caledonia. They did not, with respect to a decolonisation process involving the participation of residents who, over and above their ethnic origin or political affiliation, had helped, and continued to help, build New Caledonia through their sufficiently strong ties to the territory.44 In the process of finding there was no violation of Articles 2(1), 25 or 26, the Committee applied non-discrimination principles common to Articles 2(1) and 26 (‘not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant’).45 The Article 25 claim in Solís v. Peru followed the author’s dismissal, as part of the reorganisation of a public body, according to criteria based on time in service and age. In reference to the Article 25 text ‘without any of the distinctions mentioned in article 2’, the Committee recalled its observation in Love v. Australia that a distinction related to age which was not based on reasonable and objective criteria may amount to discrimination on the ground of ‘other status’, or to a denial of equal protection of the law within the meaning of the first sentence of Article 26.46 It added in Solís, ‘[t]his reasoning also applies to article 25(c) in conjunction with article 2, paragraph 1, of the Covenant’. To ensure access to public service on general terms of equality, the criteria and procedures for appointment, promotion, suspension and dismissal must be objective and reasonable. There was no violation of Article 25(c), since the age limit used for continued post occupancy was an objective distinguishing criterion, and its implementation in the context of a general plan for the restructuring was not unreasonable.47 Messrs Walter Kälin, Edwin Johnson, Michael O’Flaherty and Hipólito Solari-Yrigoyen (dissenting) considered that the majority decision was tantamount to saying that age as such was an objective and reasonable criterion for deciding who would have to leave public service. They would have followed Love differently, to find a violation of Article 25(c), by examining whether there were reasonable and objective grounds justifying the use of age as a distinguishing criterion. This case concerned dismissal not retirement; and while age may justify dismissal where age affects the ability to perform certain functions (such as those of a pilot in Love) this was not the case here.48 Several years later, the Committee found a violation of Article 26, read in conjunction with Article 2, in Albareda et al. v. Uruguay in a ten-year difference in retirement age between two levels of senior executive employees. The authors were former diplomats, who were taken off their posts as Foreign Service secretaries. There was no State explanation how age could 44 46 47 48

Ibid. [14.2] [14.7]. 45 Ibid. [3.11], [5.3], [9.2], [11.2], [13.5]. Love et al. v. Australia, CCPR/C/77/D/983/2001, 25 March 2003 [8.2]. Solís v. Peru, CCPR/C/86/D/1016/2001, 27 March 2006 [6.2] [6.4]. Individual Opinion of Walter Kälin, Edwin Johnson, Michael O’Flaherty and Hipólito Solari Yrigoyen in Solís v. Peru, CCPR/C/86/D/1016/2001, 27 March 2006.

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affect the performance of a secretary so specifically and differently from the performance of a counsellor, minister or ambassador as to justify the difference of ten years between compulsory retirement ages. Only one of the authors made a claim under Article 25(c), but it was inadmissible because he provided no argument in support.49 Distinctions based on political opinion are hard to justify. In some cases the Committee has made an adverse Article 25 finding ‘in conjunction with article 2, paragraph 1’, because Article 25 guarantees its constituent rights ‘without any of the distinctions mentioned in article 2, paragraph 1, including political opinion’. It did so in Sudalenko v. Belarus after it was established that the Electoral Commission showed bias against the author in refusing to register him as an election candidate because he stood for the opposition (members of his initiative group were pressured by officials to refuse to collect signatures in support of his nomination, among other irregularities). It also found a violation of Article 26.50 In some of its earlier decisions against Uruguay involving discrimination based on political opinion, the Committee made Article 25 findings of violation but was inconsistent about adding parallel findings under Articles 2 or 26. Lists of certain political groups for the 1966 and 1971 elections were declared illegal, and their members were deprived of the right to engage in any activity of a political nature, including the right to vote, for a term of fifteen years. The Committee mentioned, for example in Pietraroia v. Uruguay, that ‘[i]n no case . . . may a person be subjected to such sanctions solely because of his or her political opinion (arts. 2(1) and 26)’, and identified it as an ‘unreasonable restriction’ in its general Article 25 finding (without a finding under Articles 2 or 26).51 In Jorge Landinelli Silva et al. v. Uruguay the same measures were found to have ‘unreasonably restricted’ the authors’ rights under Article 25, similarly focusing less on the presence of an Article 2 distinction, and without making an Article 2 or 26 finding.52 In Chiiko Bwalya v. Zambia it also treated as an ‘unreasonable restriction’ on the author’s Article 25 right to ‘take part in the conduct of public affairs’ the fact that he was a leading figure of a political party in opposition to the former president, who had been prevented from participating in a general election campaign and from preparing his candidacy on account of his membership in a political party that was not officially recognised. The

49 Albareda v. Uruguay, CCPR/C/103/D/1637/2007, 1757&1765/2008, 24 October 2011 [3.3], [9.3] [9.4]. 50 Sudalenko v. Belarus, CCPR/C/100/D/1354/2005, 19 October 2010 [2.3], [2.8], [6.5] [7]. For similarly couched findings (though without reference to ‘without any of the distinctions men tioned in article 2, paragraph 1’), see Ignatane v. Latvia, CCPR/C/72/D/884/1999, 25 July 2001 [5.3] [5.11], [7.4] [7.5]; Lukyanchik v. Belarus, CCPR/C/97/D/1392/2005, 21 October 2009 [8.2] [8.5]. 51 Pietraroia v. Uruguay, CCPR/C/12/D/44/1979, 27 March 1981 [16]. 52 Silva et al. v. Uruguay, Communication No. 34/1978, CCPR/C/OP/1 at 65 (1984), 8 April 1981 [8.4], [9].

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Committee thereby gave greater prominence to the political discrimination involved, and it also made an Article 26 finding.53 Race and religion are other prohibited grounds of discrimination in Article 2(1), for which it is difficult to conceive suitable justification. A distinction based on language, a ground specifically mentioned in Article 2(1), resulted in a violation of Article 25, in conjunction with Article 2, in Ignatane v. Latvia, discussed further below. The author’s candidacy was anulled a few days before elections were held on the strength of a language assessment by a single inspector, which contradicted a language aptitude certificate based on assessment by five experts some years earlier.54 The justification for a two-year residency requirement for candidates in municipal elections in Burgoa v. Bolivia was ostensibly to ensure that representatives have direct knowledge of the socio-economic and cultural conditions of the communities they represent. However, a circular purportedly reflecting that requirement prohibited from standing for election to municipal or regional office anyone who, like the author, was a member of the Legislative Assembly in the previous legislative term. This unduly restricted her Article 25 rights. It was obvious that she would not cease to be aware of the socio-economic and cultural situation of the community from which she came, which she represented and where she had her habitual residence. Also, the State failed to argue convincingly how department-level positions, which benefited from an exclusion, differed to such a degree as to warrant such a significant distinction.55 The distinction between the ‘right’ and ‘opportunity’ to exercise Article 25 rights, and the importance of both, was evident in Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius when the Committee gave attention to ‘whether the opportunity, that is, a de facto possibility of exercising this [a citizen’s right under article 25] was affected.56 In reviewing State reports, the Committee has tackled a number of Article 25 restrictions based on distinctions enumerated in Article 2(1), including those on grounds of race, colour,57 sex, language,58 religion,59 political or other 53 Bwalya v. Zambia, CCPR/C/48/D/314/1988, 14 July 1993 [6.6] [6.7]. 54 Ignatane v. Latvia, CCPR/C/72/D/884/1999, 25 July 2001 [5.3] [5.11], [7.4] [7.5]. 55 Burgoa v. Bolivia, CCPR/C/122/D/2628/2015, 28 March 2018 [11.5]. To similar effect, see also Iporre v. Plurinational State of Bolivia, CCPR/C/122/D/2629/2015, 28 March 2018 [11.5]. 56 Aumeeruddy Cziffra et al. v. Mauritius, Communication No. 35/1978, CCPR/C/OP/1 at 67 (1984), 9 April 1981 [9.2(c)1] (no Art. 25 interference as no restriction on ‘opportunity’). 57 E.g., Brazil CCPR/C/BRA/CO/2 (2005) 10 (low level of participation of Afro Brazilians and indigenous peoples in public affairs and limited presence in political and judicial life); Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) 8; Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 6) (‘constituent peoples’ (Bosniaks, Croats and Serbs) excluded from being elected). 58 See section ‘Language Proficiency’, below. 59 E.g., Norway A/36/40 (1981) 361 (Lutheran profession required of senior State officials and members of the government); Iran A/37/40 (1982) 320 (president had to belong to the official State religion); Argentina A/45/40 (1990) 228 (religious test for eligibility to stand for president

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opinion,60 national or social origin,61 property,62 birth63 or other status, including intellectual disability64 and residence.65 Indigenous, ethnic and other minorities have received particular attention.66 ‘Character’ has even been a basis for

60

61

62 63

64

65 66

and vice president); Lebanon CCPR/C/79/Add.78 (1997) 23 (membership of one of the officially recognised religious denominations a requirement of eligibility to run for public office); Germany CCPR/C/79/Add.73 (1996) 16 and Germany CCPR/CO/80/DEU (2004) 19 (member ship in certain religious sects may, in some Länder, disqualify individuals from employment in the public service); Pakistan CCPR/C/PAK/CO/1 (2017) 47 (the removal of Ahmadis from the general electoral list and their registration on a separate voting list). Cf. Burundi CCPR A/48/40 (1993) 57 (political parties were prohibited from identifying themselves with an ethnic group or religion). See also questioning of Lebanon A/38/40 (1983) 355; Sri Lanka A/39/40 (1984) 110. E.g., Costa Rica A/35/40 (1980) 351 (no State contribution for campaign costs for parties with less than 5 per cent of the votes suggested detriment to new political movements); Chile A/40/40 (1985) 75 (any action antagonistic to the family or intended to propagate doctrines advocating a totalitarian concept of society, the State or the judicial order was illegal); Canada A/46/40 (1991) 86 (the absence of political partisanship, provided for in the Public Service Employment Act, was to ensure the neutrality and professionalism of their work); Turkey CCPR/C/TUR/CO/1 (2012) 23 (conscientious objectors at risk of being sentenced to imprisonment and deprived of their right to vote). See also questioning of Korea A/47/40 (1992) 487 (teachers and journalists were prohibited from becoming founders or members of a political party). E.g., Costa Rica A/35/40 (1980) 351 (in order to be a deputy, a naturalised Costa Rican had to have held nationality for at least ten years); Kuwait CCPR/CO/69/KWT (2000) 16 (ensure that those granted Kuwaiti nationality were treated equally with other Kuwaiti citizens with regard to voting rights); Russian Federation CCPR/C/RUS/CO/7) (2015) 23(d) (ensure Crimean residents who retained Ukrainian nationality were not discriminated against in public life). See also questioning of Australia A/38/40 (1983) 154. E.g., Canada A/40/40 (1985) 234 (property qualification for the office of senator); Argentina A/45/40 (1990) 228 (senatorial candidates required to possess a certain minimum income); Liberia CCPR/C/ LBR/CO/1 (2018) 44 (the value of property owned by candidates standing for public office). E.g., Tunisia CCPR A/32/44 (1977) 121(j) (the Constitution limited eligibility for election to the National Assembly to persons ‘born of Tunisian fathers’); UK A/33/40 (1978) 189 and UK A/34/40 (1979) 229 (only persons of a certain class or birth could as of right be members of the upper chamber of Parliament); Colombia A/35/40 (1980) 258 (a senator, president, state councillor and judge of the Supreme Court must be a ‘Colombian by birth’); Venezuela A/36/40 1980 63 (only citizens born in Venezuela could hold high public office or be deputies or senators); Mexico A/38/40 (1983) 78 (only Mexican nationals by birth could hold certain public offices). See also questioning of New Zealand (Cook Islands) A/40/40 (1985) 446; Portugal (Macau) CCPR/C/79/Add.77 (1997) 14. E.g., Albania CCPR/C/ALB/CO/2 (2013) 22 (voting); Angola CCPR/C/AGO/CO/1 (2013) 8 (electoral rights); Belize CCPR/C/BLZ/CO/1 (2013) 24 (voting); Czech Republic CCPR/C/ CZE/CO/3 (2013) 12 (voting); HK SAR CCPR/C/CHN HKG/CO/3 (2013) 24 (voting); Paraguay CCPR/C/PRY/CO/3 (2013) 11 (voting); San Marino CCPR/C/SMR/CO/3 (2015) 22 (voting); Poland CCPR/C/POL/CO/7 (2016) 41 (voting); Australia CCPR/C/AUS/CO/6 (2017) 47 (voting); Bulgaria CCPR/C/BGR/CO/4 (2018) 17 (right to marry and vote); Guatemala CCPR/C/GTM/CO/4 (2018) 26 (voting); Hungary CCPR/C/HUN/CO/6 (2018) 21 (voting); Lithuania CCPR/C/LTU/CO/4 (2018) 13 (vote and stand for elections). See also questioning of Denmark A/36/40 (1981) 92 (right to vote removed if declared incapable of conducting one’s own affairs); Senegal A/42/40 (1987) 216. E.g., Barbados A/36/40 (1981) 166 (at least seven years’ residence was required for election to the House of Assembly). See also Burgoa v. Bolivia, CCPR/C/122/D/2628/2015, 28 March 2018, discussed below. E.g., Hungary CCPR/C/HUN/CO/5 (2010) 21 (obligatory for minorities to register their ethnic identity, which detered those who did not wish to disclose it, or who had multiple ethnic identities, from registering in elections); South Africa CCPR/C/ZAF/CO/1 (2016) 46 (recogni tion criteria affecting indigenous communities).

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distinction.67 Religious oaths and oaths of conscience raise issues under both Article 25 and 18.68 The under-representation of women in senior positions in the public service, in political life, the judiciary and other sectors is a constant theme of the Committee, which frequently recommends affirmative action where necessary.69 It also 67 E.g., Denmark A/36/40 (1981) 92 (what authority decided that, in the eyes of the public, a certain act committed by a person made him unworthy to be a member of the Folketing and what criteria were applied); Iceland A/38/40 (1983) 118 (was it easy to find persons of totally ‘unblemished character’ eligible to vote and did eligible voters really have to be ‘financially responsible’?). 68 E.g., Sri Lanka A/39/40 (1984) 114 (public officials required to take an oath disavowing separatism); Iraq A/42/40 (1987) 382 (appointment to highest offices required religious oath); Estonia CCPR/C/79/Add.59 (1995) 14 (refusal to take an oath of conscience as a basis for non appointment); Ireland CCPR/C/IRL/CO/4 (2014) 21 (senior public office positions, such as president, members of the Council of State and members of the judiciary required a religious oath). See also questioning of Jordan A/37/40 (1982) 212. 69 E.g., Netherlands A/37/40 (1982) 113 (restrictions on appointment and termination of employ ment of women in the civil service of the Antilles applied to married women who were not considered breadwinners); Tanzania CCPR/C/79/Add.97 (1998) 12 (senior judiciary and in political spheres); Dominican Republic CCPR/CO/71/DOM (2001) 19 (public and private life); Venezuela CCPR/CO/71/VEN (2001) 21 (political life, the judiciary and other sectors); Brazil CCPR/C/BRA/CO/2 (2005) 10 (in public affairs); Bosnia and Herzegovina CCPR/C/BIH/ CO/1 (2006) 11 (in legislative and executive bodies at all levels); Honduras CCPR/C/HND/CO/1 (2006) 6 (in publicly elected posts and in the public administration); Congo CCPR/C/COD/CO/3 (2006) 11 (political participation); Algeria CCPR/C/DZA/CO/3 (2007) 20 (in public life); Austria CCPR/C/AUT/CO/4 (2007) 10 (in senior positions in the public service); Czech Republic CCPR/C/CZE/CO/2 (2007) 11, 12 and Czech Republic CCPR/C/CZE/CO/3 (2013) 7 (in political and public life); Denmark CCPR/C/DNK/CO/5 (2008) 7 (in political decision making positions, especially at the local level); Ireland CCPR/C/IRL/CO/3 (2008) 10 (in public life); Japan CCPR/C/JPN/CO/5 (2008) 12 (in government posts at the level of directors of ministries); Macedonia CCPR/C/MKD/CO/2 (2008) 9 (in governmental institutions); Nicaragua CCPR/C/NIC/CO/3 (2008) 10 (the civil service); Panama CCPR/C/PAN/CO/3 (2008) 17 (elected office and discretionary appointments); Azerbaijan CCPR/C/AZE/CO/3 (2009) 6 (in parliament, as well as in high ranking positions); Chad CCPR/C/TCD/CO/1 (2009) 17 (in public life); Croatia CCPR/C/HRV/CO/2 (2009) 7 (in legislative and executive bodies); Ecuador CCPR/C/ECU/CO/5 (2009) 8 (high level positions in the public sector); Moldova CCPR/C/MDA/CO/2 (2009) 15 (senior positions in both the public and private sectors, most notably in the judiciary, in elected bodies and in academic institutions); Netherlands CCPR/ C/NLD/CO/4 (2009) 6 (in public office at senior levels, particularly in the senate and the cabinet); Sweden CCPR/C/SWE/CO/6 (2009) 7 (higher echelons of the judiciary); El Salvador CCPR/C/SLV/CO/6 (2010) 9 (in public or elected office); Hungary CCPR/C/HUN/CO/5 (2010) 10 (in decision making positions, including parliament, government ministries and local govern ment); Jordan CCPR/C/JOR/CO/4 (2010) 19 (in public life); Uzbekistan CCPR/C/UZB/CO/3 (2010) 20 (political life, MPs); Kuwait CCPR/C/KWT/CO/2 (2011) 8 (in legislative and execu tive bodies, and as judges); Mongolia CCPR/C/MNG/CO/5 (2011) 8 (in parliament and in decision making positions in both the public and private sectors); Guatemala CCPR/C/GTM/ CO/3 (2012) 8 (in congress and in decision making posts in the public and private sectors); Maldives CCPR/C/MDV/CO/1 (2012) 10 (in public and political life, including in the judiciary); Portugal CCPR/C/PRT/CO/4 (2012) 4 (decision making positions in the public sector, including in the foreign service, as well as in the legislative assemblies of the autonomous regions of the Azores and Madeira); Bolivia CCPR/C/BOL/CO/3 (2013) 8 (in political life, and indigenous women in decision making positions); Mozambique CCPR/C/MOZ/CO/1 (2013) 9 (in decision making positions at local level); Paraguay CCPR/C/PRY/CO/3 (2013) 10 (in congress or in decision making positions in the public and private sectors); Peru CCPR/C/PER/CO/5 (2013) 9

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recurrently expresses concern about the under-representation of minority communities in the conduct of public affairs as well as in access to public service.70 Without Unreasonable Restrictions The requirement that citizens have the right and opportunity to exercise Article 25 rights ‘without unreasonable restrictions’ has been the subject of OP1 claims across a wide range of issues spanning participation in the forms specified in Article 25(a)–(c). The exercise of these rights by citizens may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable.71 The failure to invite representatives of the Mikmaq Tribal Society to constitutional conferences on aboriginal matters did not give rise to violation of the rights of its members in Marshall v. Canada. The conferences constituted the conduct of public affairs (Article 25(a)) but, as discussed further below, their participation and representation had not been subjected to unreasonable restrictions.72 Principles of proportionality have often been applied to restrictions on prisoners’ voting rights (Article 25(b)).73 If conviction for an offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence, which, as the Committee confirmed in Yevdokimov and Rezanov v. Russian

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(decision making positions in the public sector); Uruguay CCPR/C/URY/CO/5 (2013) 10 (legislature or decision making posts in the executive and judicial branches of government); Burundi CPR/C/BDI/CO/2 (2014) 10 (in public affairs at the provincial and local levels); Haiti CCPR/C/HTI/CO/1 (2014) 8 (in the police and in the justice system); Benin CCPR/C/BEN/CO/2 (2015) 10 (in positions of responsibility). See also Denmark A/36/40 (1981) 92 (enquiring whether military posts and assignments were forbidden to women). E.g., Kosovo CCPR/C/UNK/CO/1 (2006) 21 (limited access by minority communities to the conduct of public affairs, as well as to public service); France CCPR/C/FRA/CO/4 (2008) 26 (selection rare of those belonging to racial, ethnic or national minorities for representative bodies, and few positions in the police, the public administration and the judiciary); Nicaragua CCPR/C/ NIC/CO/3 (2008) 20 (participation in elections by indigenous and ethnic communities in the autonomous regions); Australia CCPR/C/AUS/CO/5 (2009) 13 (Aboriginals and Torres Strait Islanders); Croatia CCPR/C/HRV/CO/2 (2009) 18 (low representation of minorities in local and regional government); Moldova CCPR/C/MDA/CO/2 (2009) 27 (de facto exclusion of Roma from participation in public life); Sweden CCPR/C/SWE/CO/6 (2009) 20 (limited Sami parliament participation in the decision making affecting land and traditional activities); Mexico CCPR/C/ MEX/CO/5 (2010) 22; Serbia CCPR/C/SRB/CO/2 (2011) 23 (low level of representation of minorities in State organs or local authorities); Turkmenistan CCPR/C/TKM/CO/1 (2012) 22 (ethnic minorities’ employment in the public sector and in decision making bodies); Israel CCPR/C/ISR/ CO/4 (2014) 8 (under representation of Israeli citizens of Arab origin in the civil service, especially in decision making positions); Montenegro CCPR/C/MNE/CO/1 (2014) 19 (de facto discrimination against Roma, Ashkali and Egyptians in participating in political life); South Africa CCPR/C/ZAF/ CO/1 (2016) 46 (traditional and indigenous communities); Honduras CCPR/C/HND/CO/2 (2017) 10 (too few indigenous peoples and Afro Hondurans part of representative political bodies or the government); Bahrain CCPR/C/BHR/CO/1 (2018) 63 (Shia population under represented in poli tical and public life, including in the National Assembly). GC 25 [4]. Marshall v. Canada, CCPR/C/43/D/205/l986 at 40, 4 November 1991 [5.4] [5.5]. See section ‘Prisoners’, below.

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Federation, rules out a blanket deprivation of that right to anyone sentenced to a term of imprisonment.74 In Dissanakye v. Sri Lanka Article 25 restrictions which applied solely because of a conviction and sentence, which themselves were arbitrary, lacked reasonableness and/or proportionality.75 Not only must the grounds of restriction be established by laws that are objective and reasonable, they must incorporate fair procedures. The lifelong disqualification of the author in Paksas v. Lithuania from candidature in presidential elections, and as prime minister or a minister, was unreasonable following a rule-making process that was linked in time and substance to particular impeachment proceedings against him, and lacked the necessary foreseeability and objectivity required.76 An important element in Dissanayake was also procedural fairness, inherent within Article 25(c), offended by the severity of a sentence imposed for contempt on two charges, on one of which the author had not even been convicted.77 Arbitrariness is an important factor. In Sudalenko v. Belarus the author was not registered as a candidate for election because it was claimed he had provided untruthful personal data (concerning his work) in a questionnaire. The questionnaire was sufficiently unreliable, in being capable of determining that certain responses were both accurate and untruthful, as to be susceptible to exploitation in restricting Article 25(a) and (b) rights through the operation of domestic law.78 The mandatory requirement in Devian and Narrain et al. v. Mauritius to declare a candidate’s affiliation (community, ethnic or religious) was arbitrary, because it led to the numerical allocation of seats according to a formula based on a 1972 census of those community groupings, but the census was long out of date.79

( A ) TO TA K E PA RT I N T H E C O N D U C T O F P U B L I C AF FA I R S , D I R E C T LY O R T H R O U G H FR E E LY C H O S E N R EPR E SE N TATIV E S Direct and Indirect Participation The conduct of public affairs in Article 25(a) is a broad concept, which relates to the exercise of legislative, executive and administrative power. It covers all 74 Yevdokimov and Rezanov v. Russian Federation, CCPR/C/101/D/1410/2005, 21 March 2011 [7.4] [7.5]. To similar effect, see Turkmenistan CCPR/C/TKM/CO/2 (2017) 50. 75 Dissanakye v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.5]. See section ‘Prisoners’, below for further discussion. 76 Paksas v. Lithuania, CCPR/C/110/D/2155/2012, 25 March 2014 [8.3] [8.4]. See also Paraguay CCPR/C/PRY/CO/3 (2013) 24, for impeachment proceedings in 2012 against former President Fernando Lugo (criticising the time allowed for the preparation and presentation of a defence, representing a serious challenge to the principles of Arts 14 and 25). 77 Dissanakye v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.3]. 78 Sudalenko v. Belarus, CCPR/C/100/D/1354/2005, 19 October 2010 [2.3], [2.8], [6.5] [7]. 79 Narrain et al. v. Mauritius, CCPR/C/105/D/1744/2007, 27 July 2012 [15.4] (see section ‘Requirement to Declare Community Affiliation’, below).

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aspects of public administration, as well as policy creation and implementation at international, national, regional and local levels.80 Direct participation occurs (as explained in General Comment 25) by citizens when they exercise power as members of legislative bodies or as executive office-holders; when they choose or change their constitution, or decide public issues through a referendum or other electoral process; or when they take part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government.81 Participation in the conduct of public affairs through freely chosen representatives is exercised by voting processes consistent with Article 25(b), on the supposition that representatives exercising governmental power are accountable through the electoral process for doing so, and that they only exercise power allocated to them under applicable constitutional or equivalent provisions.82 Citizens may also engage in the conduct of public affairs by public debate and dialogue, for which they depend on the freedoms of expression, of assembly and of association.83 The Manner of Participation There are, however, limits to who may determine the manner of participation in the conduct of public affairs. The authors of the communication in Marshall v. Canada were the officers of the Grand Council of the Mikmaq Tribal Society in Canada. By enactment which recognised the treaty and other rights of the aboriginal peoples of Canada, a process was envisaged that would include a constitutional conference to be convened by the prime minister, attended by the first ministers of the provinces and invited representatives of those peoples. The question was whether the conferences constituted the ‘conduct of public affairs’ and, if so, whether the authors or others chosen by the Mikmaq Tribal Society had the right, by virtue of Article 25(a), to attend. The Committee accepted, in the light of the composition, nature and scope of activities of the conferences that they constituted the conduct of public affairs. But it went on to say that the conduct of public affairs in a democratic State is the task of representatives of the people, elected for that purpose, and public officials appointed in accordance with the law: 80 GC 25 [5]. On engagement with law making specifically, see Karen Czapanskiy and Rashida Manjoo, ‘The Right of Public Participation in the Law Making Process and the Role of Legislature in the Promotion of This Right’, (2008) 19 DJCIL, p. 1; Nahuel Maisley, ‘The International Right of Rights: Article 25(a) of the ICCPR as a Human Right to Take Part in International Law Making’, (2017) 28(1) Eur. J. Int. L., p. 89. 81 GC 25 [6]. 82 GC 25 [7]. 83 GC 25 [8]. On the (defeated) proposal to confine the right by means only of direct suffrage, see A/ 2929 (1955), Ch.VI, p. 60 [172].

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Although prior consultations, such as public hearings or consultations with the most interested groups may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens, far beyond the scope of article 25(a).84

Käkkäläjärvi et al. v. Finland involved a claim stemming from decisions of the domestic court which extended the right to vote in elections to the Sami parliament to individuals who were not previously considered eligible (by the competent organs of the Sami parliament). The authors, who were indigenous Sami, claimed that this corrupted the representative value of the parliament, adversely affecting the right of Sami people to effective participation in public affairs, and that it undermined their autonomy in matters concerning their rights to enjoy their culture, to political rights of participation and to self-determination. The authors also identified economic risks in including non-Sami individuals in the electoral roll, if they were to endeavour to win the Sami parliament’s acceptance of largescale projects of mining, mass tourism and infrastructures. The Committee took into account the collective dimension of the resulting harm, as well as to every individual member, from altering the rules for determining membership in the electoral roll, given that this concerned rights to political participation of an indigenous community in the context of internal self-determination. There was no doubt that the Sami parliament was an important instrument for the Sami, individually and collectively, to enjoy and exercise their rights under Articles 25 and 27, and it ensured effective participation of the Sami people in the decisions affecting them. The change to the rules therefore had to have a reasonable and objective justification and be consistent with the other Covenant provisions, including the principles of internal self-determination relating to indigenous peoples. The Committee found that in place of certain specific objective criteria that previously applied, the domestic court resorted to an ‘overall consideration’ of a person’s own ‘strong’ opinion in considering themselves a Sami. This violated Article 25, read alone and in conjunction with Article 27, as interpreted in the light of Article 1.85 Engagement in Policy A policy change within government led to the claim in Beydon et al. v. France by members of a human rights NGO established to campaign for the creation of 84 Marshall v. Canada, CCPR/C/43/D/205/l986 at 40, 4 November 1991 [5.5]. 85 Käkkäläjärvi et al. v. Finland, CCPR/C/124/D/2950/2017, 2 November 2018 [3.2] [3.4], [8.9], [9.9] [9.11]. For a parallel claim by the president of the Sami parliament, see Sanila Aikio v. Finland, CCPR/C/124/DR/2668/2015, 1 November 2018.

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a permanent, independent and effective international criminal court. They mounted a challenge against the government when it took advantage of Article 124 of the Rome Statute, by depositing a declaration entitling it to avoid the jurisdiction of the International Criminal Court (ICC) over war crimes. The authors’ Article 25(a) claim was that they were deprived of their right and opportunity to take part in the conduct of public affairs relating to the negotiations, and subsequent adhesion of France to the ICC Statute. Also, since France was one of the original supporters of the early proposals to create an international criminal court, by ‘radically’ reversing its position the French Government broke its earlier promise and acted in bad faith by invoking Article 124, in violation of Article 2(3) (b) and (c), read with Article 25(a). Because the authors had in fact participated in the public debate in France on the issue of its adhesion to the ICC, and on France depositing an Article 124 declaration, and they had acted through elected representatives and through their association’s actions, the Committee found the claim unsubstantiated.86 The assertion that the State exceeded its authority in terms of environmental policy lay at the heart of Brun v. France, a claim by a protester who, with others, was criminally sanctioned for destroying a plot of transgenic maize used in an open-field trial of genetically modified organisms. When the damage was done there had been no public debate to allow ordinary citizens to take an active part in the decisions of the public authorities concerning the environment. Its purpose was to trigger that debate and to agitate official consideration of the use of genetically modified crops and their health and environmental risks. The Committee treated it as a complaint that the State denied him the right and the opportunity to participate in the conduct of public affairs and, just as in Beydon, it was inadmissible because he had in fact participated in the public debate in France, through his elected representatives and through the activities of an association.87 Adverse Effect The Article 25 claim in Diergaardt et al. v. Namibia was that territorial reorganisation which accompanied the end of the Rehoboth Baster Community’s right to self-government, at the time of Namibia’s independence, restricted the Community’s Article 25 rights. It was inadmissible because even if the influence of the Community on public life had been affected by the merger of their region with other regions, the necessary adverse effect on those rights was not established.88

86 Beydon et al. v. France, CCPR/C/85/D/1400/2005, 31 October 2005 [4.5]. 87 Brun v. France, CCPR/C/88/D/1453/2006, 18 October 2006 [6.4]. 88 Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.8].

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Public Political Life of the Nation Article 25(a) concerns rights of participation in the public political life of the nation, as distinct from private employment matters, such as the election of an employee to a private company’s work council, which was the subject of Mümtaz Karakurt v. Austria.89 Although the right to take part in the conduct of public affairs relates to the exercise of political power, it does not impose a specific political model or structure, as the Committee explained in Mazon Costa v. Spain when a Spanish citizen claimed that Article 25 was violated because the Spanish monarchy was not subject to free and public elections. A constitutional monarchy based on separation of powers was not in itself contrary to Article 25.90

(B ) TO VOT E AND TO BE E LECTE D AT G ENUINE PERIODIC EL ECTIONS Common Stipulations General Comment 25 provides a useful synopsis of the conditions that permissibly attach to the right to vote and be elected. A minimum age stipulation for the right to vote is reasonable, if pitched at the right level, but restrictions imposed on the basis of physical disability, literacy, educational or property requirements would not be reasonable, nor would membership of a political party be reasonable either as a condition of eligibility to vote, or as a ground of disqualification.91 As far as the right to stand for election is concerned, the minimum age stipulation found in every system must be justifiable on objective and reasonable criteria. Exclusions based on education, residence,92 descent or political affiliation would be unreasonable.93 Concluding Observations disclose other unreasonable disqualifications, including of individuals convicted of defamation or blasphemy;94 89 Karakurt v. Austria, CCPR/C/74/D/965/2000 4 April 2002 [8.2] (Art. 25 not applicable). 90 Costa v. Spain, CCPR/C/92/D/1745/2007, 1 April 2008 [3.2] (while Art. 25(a) alludes to the election of representatives, and (b) guarantees the right to vote and to be elected, they do not grant a right to elect a head of State or to be elected to such position). Cf. Swaziland CCPR/C/SWZ/ CO/1 (2017) 52 (the concentration of power in the king, with excessive powers of appointment over the government, parliament and the judiciary, was incompatible with Art. 25). On points of concern with a constitutional monarchy, see questioning of Denmark A/36/40 (1981) 92 (about compatibility with Arts 2 and 25 of executive power in the hands of a single family and the monarch invested with it only through inheritance (the regime was essentially a parliamentary democracy); Liechtenstein CCPR/CO/81/LIE (2004) 7 (concern about the Covenant compat ibility of laws which exclude women from succession to the throne). 91 GC 25 [10]. 92 See Burgoa v. Bolivia, CCPR/C/122/D/2628/2015, 28 March 2018, discussed below. 93 GC 25 [15], [17]. 94 Kuwait CCPR/C/KWT/CO/3 (2016) 40 (electoral law barred persons convicted of defamation or blasphemy from standing for election).

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those who have overdue debts or taxes, who have not completed compulsory military service or who have a criminal record;95 and those excluded against illdefined criteria.96 Conditions affecting nomination dates, fees or deposits ‘should be reasonable and not discriminatory’. The grounds for removing elected officeholders should be based on objective and reasonable criteria and incorporate fair procedures.97 If a minimum number of supporters is required for nomination of a candidate it should be set at a reasonable level and not act as a barrier to candidacy.98 Electoral System Requirements General Comment 25 mentions a number of compliance requirements for elections, regardless of the particular form of democratic governance which may exist. Elections must be held at intervals which are not unduly long.99 Effective measures must be taken to ensure that those entitled to vote are able to exercise that right, without being impeded by practicalities such as registration procedures, or residence qualifications, which might disproportionately affect the homeless. ‘Positive measures’ should be taken to overcome specific difficulties, such as illiteracy, language barriers, poverty or travel hurdles.100 Penal laws should prohibit any abusive interference with registration or voting as well as intimidation or coercion of voters, and should be strictly enforced.101 Elections must be conducted fairly and freely on a periodic basis, within a framework of laws guaranteeing the effective exercise of voting rights. The results of genuine elections should be respected and implemented.102 An independent electoral authority should supervise the electoral process and ensure it is conducted independently and impartially.103 Ballot secrecy should be guaranteed (including for absentee voting), supported by ballot box security, and votes should be counted in the presence of the candidates or their agents. Independent scrutiny of the voting and counting processes should be coupled with access to judicial review or equivalent. Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.104 The Covenant does not impose any particular electoral system. However, the principle of one person, one vote is mandatory, and within the framework of each 95 Mongolia CCPR/C/MNG/CO/6 (2017) 39. 96 Burkina Faso CCPR/C/BFA/CO/1 (2016) 39 (the Electoral Code rendered ineligible anyone who supported an unconstitutional change in violation of the principle of the democratic rotation of power). 97 GC 25 [16]. 98 GC 25 [17]. 99 GC 25 [9]. 100 GC 25 [12]. 101 GC 25 [11]. 102 GC 25 [19]. 103 E.g., Cameroon CCPR/C/CMR/CO/5 (2017) 43 (the electoral oversight body not fully inde pendent and impartial); Bahrain CCPR/C/BHR/CO/1 (2018) 63 (voter fraud); Guinea CCPR/C/ GIN/CO/3 (2018) 47 (alleged non compliance with the duty of impartiality and neutrality of the administrative authorities during elections). 104 GC 25 [20].

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State’s electoral system, the vote of one elector should be equal to the vote of another. The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group, and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely.105 Gillot et al. v. France has already been discussed in detail, in which the Committee found that the elections held in French New Caledonia to determine the future of the territory in the context of a process of self-determination were organised in a manner compatible with Articles 25 and 26.106 The unusual distribution of voters within electoral districts led to the successful claim in Istvan Mátyus v. Slovakia. Rožňava Town Council established for its 1998 elections five voting districts with twenty-one representatives in total. Each district was to have between two and seven representatives. The elections legislation required representatives to be elected to each village or town council proportional to the number of inhabitants in the town, with at most twelve representatives in one electoral district. The author compared the number of residents per representative in the individual voting districts and observed that this number varied across districts between 200 and 1,400 residents. The number of representatives in each district was not therefore proportional to the number of inhabitants. He stood as a candidate in the voting district with 1,400 residents per representative but failed to secure a seat. The Constitutional Court agreed that this breached his constitutional rights as well as the requirement for voting districts to be proportional to its inhabitants but it did not declare the elections invalid, which had already been held. Since the State did not identify any factors to explain the differences in the number of inhabitants or registered voters per elected representative in different parts of the electorate, the Committee found a violation of Article 25(a) and (c). As to the remedy, cancelling elections after the event may not always be appropriate, especially when the defect was inherent in the laws and regulations laid down before the elections, rather than irregularities in the elections themselves, and in this case more than three years had elapsed between the elections and the Committee’s decision.107 An attempt was made to cancel an election by the author in de Clippele v. Belgium, who was both a voter and a candidate, challenging the automated voting system introduced in certain Belgian electoral districts, cantons and communes. He failed to provide any evidence in substantiation of his complaints concerning the absence of independent monitoring of electoral procedures and 105 GC 25 [21]. 106 See section ‘Without Any of the Distinctions Mentioned in Article 2’, above. 107 Mátyus v. Slovakia, Communication No. 923/2000, A/57/40 (Vol. II) at 257 (2002), 22 July 2002 [2.1], [2.2], [7.2], [9.2] [11]. For concern at the quota system for candidates standing for election in Armenia, see Armenia CCPR/C/ARM/CO/2 (2012) 7; and for the electoral map in Madagascar, which did not guarantee equality among districts, see Madagascar CCPR/C/MDG/CO/4 (2017) 53.

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restrictions on the right to vote. However, his claim is interesting for the issues raised by automated voting.108 Oleksii Katashynskyi v. Ukraine exemplifies the response required when certain electoral system procedures fail. The electoral commission decided not to take the voting results of one polling station into account when its records were lost. These events caused the Committee to reiterate that an independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws that are compatible with the Covenant. The security of ballot boxes must also be guaranteed, and there should be independent scrutiny of the voting and counting processes, with judicial review or equivalent available so that electors have confidence in the security of the ballot and the vote counting. The decision to annul entirely the voting results from that polling station without ordering a recount was arbitrary, compounded by subsequent lack of access to an effective judicial review, which led to a disproportionate and unreasonable restriction under Article 25, read alone and in conjunction with Article 2(3).109 The question of compulsory voting, raised in Christopher Alger v. Australia, led the Committee to undertake a stocktake of certain ballot box requirements which compulsory voting entails. The author decided not to vote in the 2010 federal election without a ‘valid and sufficient reason’ required under domestic provisions to avoid liability to a penalty for not voting. Because the then prime minister had made a series of promises to the electorate, and, once elected, declared that he would not implement ‘non-core promises’, the author claimed he did not have sufficient information to make a meaningful decision on who to vote for. After repeating much of what it mentioned in General Comment 25 about the requirements of an electoral system, the Committee added that the voting system must allow electors to vote for any candidate, or none of them, including by submitting a blank or non-complaint ballot paper. These elements were satisfied in the Australian federal electoral system, even though it required an elector to attend a polling station, because there was no adequate explanation why a blank vote would not genuinely reflect his will as an elector, or why the fine imposed was unreasonable or disproportionate.110 Consistently with this decision, the focus of the Committee’s questioning on compulsory voting in the reporting process has principally been the severity of sanctions applied for not voting.111 The Committee has considered the practicalities of voting in reviewing State reports, out of concern to ensure that members of the ‘travelling community’ were 108 109 110 111

de Clippele v. Belgium, CCPR/C/77/D/1082/2002, 28 March 2003 [6.4]. Katashynskyi v. Ukraine, CCPR/C/123/D/2537/2015, 25 July 2018 [7.2]. Alger v. Australia, CCPR/C/120/D/2237/2013, 13 July 2017 [7.3] [7.5]. E.g., Panama A/39/40 (1984) 420; Belgium A/43/40 (1988) 484; Bolivia A/44/40 (1989) 429. See also Costa Rica A/35/40 (1980) 351, 367 (suffrage was a compulsory civil function which did not preclude the possibility of abstention).

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on the electoral roll,112 that internally displaced persons may vote,113 and that citizenship certificates were available (where there would be no right to vote without them).114 It has been critical where citizens have not been able to vote because their correct residential address had not been entered in the government database,115 or there was an inadequate supply of ballot papers and administrative obstacles.116 The fundamental availability of universal and equal suffrage has been a matter of Committee questioning of a number of countries,117 and in its review of reservations (see section ‘Implementation’, below).118 Election integrity (requiring elections to be free, and conducted with transparency and honesty) has been questioned on a number of occasions.119 The suspension or infrequency of elections is also a matter of serious concern.120 Prisoners In general, those deprived of liberty who have not been convicted should not be excluded from exercising the right to vote. The position of those who have been sentenced by exercise of proper judicial authority is different. If conviction for an 112 Ireland CCPR/C/79/Add.21 (1993) 23. 113 E.g., Colombia CCPR/CO/80/COL (2004) 19; Cyprus CCPR/C/CYP/CO/4 (2015) 9. With particular concern for the right to vote of internally displaced, see Jeremy Grace and Erin Mooney, ‘Political Participation Rights in Particular the Right to Vote’, (2010) 41 Stud. Transnat’l Legal Pol., p. 507. 114 E.g., Nepal CCPR/C/NPL/CO/2 (2014) 20. On the effectiveness of civil status registries as an Art. 25(b) matter, see Congo CCPR/C/COD/CO/3 (2006) 25. 115 Cyprus CCPR/C/CYP/CO/4 (2015) 22. 116 Macedonia CCPR/C/MKD/CO/2 (2008) 18. 117 E.g., New Zealand A/39/40 (1984) 177 (criteria followed to determine who was a Maori and to set the number of Maori seats in parliament at four); Morocco CCPR/C/79/Add.44 (1994) 16 (two thirds of members of the House of Representatives were elected by direct universal suffrage and one third by an electoral college); Iraq CCPR/C/79/Add.84 (1997) 18 (the Revolutionary Command Council were not elected by universal and equal suffrage); Chile CCPR/C/CHL/CO/5 (2007) 15 (the electoral system could hamper the effective parliamentary representation of all individuals; USA CCPR/C/USA/CO/4 (2014) 24 (District of Columbia as a special federal district, not a state). See also Barbados A/36/40 (1981) 166; Australia A/43/40 (1988) 452 (enquiries about the factors responsible for the form of weighted voting that was in effect in Australia); HKSAR CCPR/C/HKG/CO/2 (2006) 18 (the electoral system in Hong Kong did not meet the requirements of Arts 25, 2(1) or 26); Botswana CCPR/C/BWA/ CO/1 (2008) 24 (the current rules regarding appointments to the Ntloya Dikgosi did not make provision for fair representation of all tribes); HK SAR CCPR/C/CHN HKG/CO/3 (2013) 6 (lack of a clear plan to institute universal suffrage and to ensure the right of all persons to vote and to stand for election without unreasonable limitations). 118 For the status of the right, see Richard J. Wilson, ‘The Right to Universal, Equal, and Non discriminatory Suffrage as a Norm of Customary International Law: Protecting the Prisoner’s Right to Vote’, in Alec Ewald and Brandon Rottinghauas (eds), Criminal Disenfranchisement in an International Perspective (Cambridge University Press, 2009), p. 121. 119 E.g., Mexico CCPR/C/79/Add.32 (1994) 11; Togo CCPR/CO/76/TGO (2002) 20; Jordan CCPR/C/JOR/CO/4 (2010) 18; Iran CCPR/C/IRN/CO/3 (2011) 29; Cape Verde CCPR/C/ CPV/CO/1 (2012) 17. 120 E.g., Jordan A/37/40 (1982) 183; Algeria A/47/40 (1992) 275; Cyprus CCPR/C/79/Add.39 (1994) 14; Malawi CCPR/C/MWI/CO/1 (2011) 20; Maldives CCPR/C/MDV/CO/1 (2012) 25; Haiti CCPR/C/HTI/CO/1 (2014) 20.

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offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence.121 It is not proportionate and does not satisfy the criterion of reasonableness if the period of suspension is coextensive with a prison sentence, as it was for the author in Yevdokimov and Rezanov v. Russian Federation who was affected by a blanket deprivation of the right to vote for anyone sentenced to a term of imprisonment. Nor did it have due regard for the reformation and rehabilitation aims of Article 10(3), or the Basic Principles for the Treatment of Prisoners, according to which prisoners retain the human rights and fundamental freedoms set out in the Universal Declaration, and (in States Party to it) the Covenant, except for those limitations that are demonstrably necessitated by the fact of incarceration.122 Deprivation of liberty is a device sometimes used for denying the right to vote and be elected, even extending beyond the term of imprisonment. The prison sentence for contempt of court on the author in Dissanakye v. Sri Lanka, discussed above, was itself arbitrary, and a constitutional provision automatically actuated a further unreasonable prohibition on him voting or being elected as a member of parliament, as someone serving or who had served during the preceding seven years, a prison sentence of more than six months, for an offence punishable with at least two years imprisonment.123 When a conviction is clearly arbitrary or amounts to a manifest error or a denial of justice, or the judicial proceedings resulting in the conviction otherwise violate the right to fair trial, it may render any resulting restriction of Article 25 rights arbitrary. This was the basis of the Article 25 finding in Mohamed Nasheed v. Maldives. The author was elected President of Maldives in 2009. In 2012, he was forced to resign from office under threat of violence against him and domestic unrest caused by his political opponents. He was arrested while campaigning for the 2013 elections and charged with abusing his power. Criminal proceedings against him were suspended and he was ultimately able to run for the presidency, but he narrowly lost. Credible reports indicated that the criminal proceedings were designed to prevent his participation in the 2013 elections. In 2015, he was convicted on charges of terrorism, in seriously flawed proceedings, in what was believed to be an attempt to thwart his participation in the 2018 elections. He was sentenced to thirteen years’ imprisonment, and in consequence was subject to 121 GC 25 [14]. Steve Foster has written extensively on prisoner voting rights: Steve Foster, ‘Automatic Forfeiture of Fundamental Rights: Prisoners, Freedom of Expression and the Right to Vote’, (2007) 16 Nottingham L.J., p. 1; Steve Foster, ‘Reluctantly Restoring Rights: Responding to the Prisoner’s Right to Vote’, (2009) 9 HRLR, p. 489; Steve Foster, ‘Desperately Seeking Suffrage: the Fight for the Prisoner’s Right to Vote’, (2013) Durham L. Rev., p. 215. 122 Yevdokimov and Rezanov v. Russian Federation, CCPR/C/101/D/1410/2005, 21 March 2011 [7.4] [7.5], referring to The Basic Principles for the Treatment of Prisoners, A/RES/45/11, 28 March 1991, Principle 5. See also Lao CCPR/C/LAO/CO/1 (2018) 37 (denial of the right to vote and to stand for elections to prisoners serving their sentences). 123 Dissanakye v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.5].

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a sixteen-year disqualification from running for political office (for the term of his sentence and an additional three years).124 The Committee has frequently raised Article 25(b) restrictions on prisoners when reviewing State reports, including the automatic deprivation of the right to vote on imprisonment, and the refusal to register as candidates for election those against whom guilt has not even been established.125 Political Affiliation The background to Gorji-Dinka v. Cameroon was that the author was ideologically pitched against the President of Cameroon on the question of that country’s withdrawal from Ambazonia (the Anglophone portions of Cameroon). When parliament adopted a resolution calling for a national conference to address the Ambazonian question the president had the author charged with high treason before a military tribunal, placing him at risk of the death penalty. He was acquitted and released. The president’s appeal against this outcome was frustrated, but the author was placed under house arrest. Because of the author’s ‘judicial antecedent’, his name was removed from the register of electors until such time as he could produce a ‘certificate of rehabilitation’. The Committee’s straightforward recital of general principles in its finding that Article 25(b) was violated belie the degree of unreasonableness of these steps, and the intensity of political opposition visited on the author.126 There was also notable understatement in the Committee’s response to some of the claims which arose in circumstances of the informal state of emergency during the Uruguayan dictatorship. For example, the authors in Jorge Landinelli Silva et al. v. Uruguay, like others who stood as election candidates for certain political groups, were deprived of the right to engage in any activity of a political nature, including the right to vote, for a term of fifteen years, as already mentioned.127 The lack of proportionality was briefly addressed, in the failure of such measures to distinguish whether the authors sought to promote political opinions by peaceful 124 Nasheed v. Maldives, CCPR/C/122/D/2851/2016, 4 April 2018 [8.4] [8.7]. 125 E.g., Luxembourg A/41/40 (1986) 75 (those serving a term of imprisonment lost their right to vote); Luxembourg CCPR/CO/77/LUX (2003) 8 (the systematic deprivation of the right to vote is an additional penalty in criminal cases); Tajikistan CCPR/CO/84/TJK (2005) 25 (refusal to register as candidates individuals against whom criminal proceedings were pending when their guilt had not been established (Arts 25 and 14(2)); Turkey CCPR/C/TUR/CO/1 (2012) 23 (conscientious objectors at risk of being sentenced to imprisonment and deprived of their right to vote (Arts 18 and 25)); Cambodia CCPR/C/KHM/CO/2 (2015) 26 (general denial of the right to vote for convicted prisoners (Arts 10(3) and 25); UK CCPR/C/GBR/CO/6 (2008) 28 and UK CCPR/C/GBR/CO/7 (2015) 25 (legislation denying the right to vote to any prisoner serving a custodial sentence); Liberia CCPR/C/LBR/CO/1 (2018) 44 (limitations on the right to vote by pre trial detainees). 126 Gorji Dinka v. Cameroon, CCPR/C/83/D/1134/2002, 17 March 2005 [2.8] [2.9], [5.6] refer ring to GC25 [4], [14]. 127 See section ‘Without Any of the Distinctions Mentioned in Article 2’, above.

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or violent means.128 In Pietraroia v. Uruguay the Committee was more specific in stating that ‘[i]n no case, however, may a person be subjected to such sanctions solely because of his or her political opinion (arts. 2(1) and 26)’. Its finding of violation of Article 19(2) was because the author was arrested, detained and tried for his political and trade union ‘activities’. The choice of Article 19(2), rather than Article 19(1), may have caused conjecture concerning the point at which the Committee would make a finding of violation of the ‘right to hold opinions without interference’.129 This was rectified in Chiiko Bwalya v. Zambia, when a leading figure of a political party in opposition to the former president was prevented from participating in a general election campaign as well as from preparing his candidacy, and the Committee assumed that both this and his detention were ‘merely on account of his membership in a political party other than that officially recognized’. The finding was made under Article 19(1).130 Integrity of Processes and Proceedings The lack of integrity of the proceedings supporting the lifelong disqualification of the author in Paksas v. Lithuania as a candidate for various offices (including member of parliament, president, prime minister or minister) was a significant component in the Committee’s findings. He was the newly elected President of Lithuania from the 2003 election, who was removed from office by the Lithuanian parliament (Seimas) after a special commission recommended that it institute impeachment proceedings over the financing of his election campaign. His conduct was found to be unlawful by the Constitutional Court. To prevent him standing for re-election, the Seimas introduced legislation (in two stages, since the first was not constitutional) preventing anyone who had been removed from office following impeachment proceedings from standing in presidential elections. Meanwhile, he was acquitted of all allegations against him, or they were discontinued by the Prosecutor General. Crucial to the Committee’s finding that the disqualifications were an unreasonable restriction under Article 25(b) and (c) were that when the Seimas decided to remove him from office, nothing prevented him from standing for election. The disqualifications followed a rule-making process that was highly linked in time and substance to the impeachment proceedings, and lacked the necessary foreseeability and objectivity required. The Committee also supported other allegations of breach of procedural fairness, through bias shown by the Constitutional Court, disclosed in comments on the author’s New Year speech, and when the Court’s president stated that the author’s 128 Silva et al. v. Uruguay, Communication No. 34/1978, CCPR/C/OP/1 at 65 (1984), 8 April 1981 [8.4], [9]. 129 Pietraroia v. Uruguay, CCPR/C/12/D/44/1979, 27 March 1981 [16]. 130 Bwalya v. Zambia, CCPR/C/48/D/314/1988, 14 July 1993 [6.2], [6.6], [6.7] (violation of Arts 9(1) and (3), 12, 19(1), 25(a) and 26).

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motion for removal of the judges could be dismissed without consideration. These insinuated the responsibility of the author prior to the outcome of the proceedings.131 In Dissanayake the Committee also criticised the integrity of the proceedings against the author, which led directly to his imprisonment, and indirectly to Article 25 restrictions: first, the severity of the sentence for contempt was based on two charges, and for one of these he had not been convicted; secondly, the type of summary proceedings initiated did not appear necessary, particularly since his statement not been made in the ‘face of the court’; and, thirdly, there was no reasoned explanation why such a severe and summary penalty was warranted.132 Failure to respect the requirements of procedural fairness also has significance under Article 25(c). It enabled the disciplinary proceedings in Bandaranayake v. Sri Lanka to be successfully impugned, which resulted in the author’s dismissal from a public service position.133 Language Proficiency Literacy and language proficiency are certainly unjustified eligibility conditions for voting.134 Those seeking elected office may, however, be expected to have certain minimal literacy and language skills given the tasks involved, provided the criteria applied are objective and reasonable.135 The lack of literacy and language skills within a sizeable portion of the population is of concern where it represents an obstacle to full participation in public life, which is exacerbated by the adoption of an official language.136

131 132 133 134

Paksas v. Lithuania, CCPR/C/110/D/2155/2012, 25 March 2014 [3.7], [8.3] [8.4]. Dissanakye v. Sri Lanka, CCPR/C/93/D/1373/2005, 22 July 2008 [8.3]. Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, 24 July 2008 [7.2] [7.3]. E.g., Ecuador A/33/40 (1978) 556 (suggestion that those who could not read or write had not voted in the referendum held for approving the Constitution and in the government elections); Peru A/38/40 (1983) 273 (questioning whether illiterate citizens had the right to vote in elections other than municipal elections). 135 E.g., Venezuela A/36/40 (1980) 63 (illiterate citizens were not eligible to hold public office); Gambia A/39/40 (1984) 341 (an individual had to be able to speak English well enough to take an active part in the proceedings of the House); Bolivia A/44/40 (1989) 429 (only citizens who could read and write could be elected). 136 E.g., Mongolia A/35/40 (1980) 103 (how did Mongolia manage to eliminate illiteracy and give everybody a real possibility to participate in public life); Algeria CCPR/C/79/Add.95 (1998) 15 (the compulsory, immediate and exclusive use of Arabic in all areas of public activity would impede large sections of the population who use Berber or French in the enjoyment of their Art. 19, 25 and 27 rights); Namibia CCPR/CO/81/NAM (2004) 21 (concern that those who did not speak the official language may be discriminated against in public affairs and in the adminis tration of justice); Georgia CCPR/C/GEO/CO/3 (2007) 17 (lack of knowledge of the Georgian language could lead to marginalisation and under representation of minorities in different public and private spheres); Belgium CCPR/C/BEL/CO/5 (2010) 10 (ensure that decisions taken by community authorities concerning linguistic requirements do not lead to discrimina tion against certain groups); Georgia CCPR/C/GEO/CO/4 (2014) 19 (poor knowledge of the

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In Ignatane v. Latvia the annulment of the author’s candidacy by the Election Commission a few days before municipal elections, on the strength of a review of language proficiency, was not based on objective criteria, and not shown to be procedurally correct, in a violation of Article 25, in conjunction with Article 2. The review, which was State-initiated and conducted by a single expert in an ad hoc manner reversed the conclusion of a more comprehensive examination by a certification board of Latvian-language specialists four years earlier comprising five experts (certifying her for an unlimited period at the highest level of language proficiency).137 Party Affiliation as a Condition of Candidacy In what appears to be a strict decision in A.P. v. Russian Federation the Committee found inadmissible the Article 25(a) and (b) claims based on the refusal by the federal electoral system to allow the author to stand as an independent candidate in the Duma (lower house) elections of the Federal Assembly, without passing through a list of a political party registered for the elections. He did not want his name to be associated with any of the existing parties as he did not subscribe to any of their ideologies. Inadmissibility turned on his failure to attempt to have his name placed as an independent candidate through the existing parties’ list. Had he done so he would have been entitled to take judicial action if one of the registered parties refused to place him on its list. It was also significant that he provided no information to the Committee as to why he could not create his own political party together with individuals sharing similar political opinions and stand for elections through that.138 Minimum Number of Supporters for Nomination of a Candidate A number of communications relate to the process in Belarus requiring a minimum number of supporters for candidature. Lukyanchik v. Belarus revealed a fundamental failure of the principle of universal and equal suffrage. The author was an opponent of the government then in power in Belarus, who applied to register an initiative group consisting of sixty-four people who agreed to collect signatures in support of his standing as a deputy of the House of Representatives. His application was refused because two out of those sixty-four had been included without their consent, and had lodged written notifications to that effect. Yet only ten members were required by the Electoral Code and he still had over sixty. The State, fatally, argued that the non-consent of these two individuals meant that the Electoral Commission had the discretion to deny registration of the Georgian language continued to be the main barrier to the integration of minorities and a reason for their marginalisation and limited representation in political life). 137 Ignatane v. Latvia, CCPR/C/72/D/884/1999, 25 July 2001 [5.3] [5.11], [7.4] [7.5]. 138 A.P. v. Russian Federation, CCPR/C/107/D/1857/2008, 28 March 2013 [10.6].

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initiative group. As the Committee pointed out, within the framework of each State’s electoral system the vote of one elector should be equal to the vote of another, and the exercise of such discretion was at odds with the requirements of equal suffrage, objectivity and reasonableness. The justification for denying him the right to run for office relied exclusively on the lack of consent of two individuals.139 Sinitsin v. Belarus represents a narrower finding, principally concerning the State’s failure to ensure an adequate remedy after the Central Electoral Commission (CEC) ruled the author’s nomination invalid. There were numerous irregularities in the handling of signatures in support of his candidacy by the electoral commissions at all levels, but his initiative group submitted a sufficient number of signatures to the CEC for it to be able to make an informed decision on whether to register him as a candidate. The absence of effective remedies to challenge the ruling on the invalidity of his nomination before an independent and impartial body, and the subsequent refusal to register him, were in violation of Article 25(b), read in conjunction with Article 2.140 Requirement to Declare Community Affiliation The restriction on the right to be elected in Narrain et al. v. Mauritius was grounded in a requirement that general election candidates must declare to which of the four established ‘way of life’ communities they belonged: Hindu, Muslim, SinoMauritian or ‘general population’. Because of the vagueness and lack of definition in the classification, the authors (who presented their candidacies for the 2005 general election) were unable to allocate themselves into one of these four community groups. The significance of the community groups was that the Constitution established a seventy-member assembly, of which eight seats were allocated under the ‘Best Loser System’, that is, eight seats were distributed among the most successful candidate belonging to the appropriate community, as well as the most successful political party. The rationale was to guarantee the representation of all ethnic communities, with a with a view to providing a balanced communal or ethnic representation in parliament. The question was whether the mandatory requirement to declare a candidate’s community affiliation was based on objective, reasonable criteria, which were neither arbitrary nor discriminatory. The fact that community affiliation had not been the subject of a census since 1972 greatly influenced the Committee to conclude that the continued maintenance of the mandatory classification system, without updating the corresponding figures representing community affiliation, was arbitrary, in violation of Article 25(b).141 139 Lukyanchik v. Belarus, CCPR/C/97/D/1392/2005, 21 October 2009 [8.2] [8.5]. 140 Sinitsin v. Belarus, CCPR/C/88/D/1047/2002, 20 October 2006 [2.1], [2.7], [7.2] [8]. 141 Devian and Narrain et al. v. Mauritius, CCPR/C/105/D/1744/2007, 27 July 2012 [15.2] [15.6]. Concern continued to be voiced at the lack of fair representation in public and political affairs of the various components of the population in Mauritius CCPR/C/MUS/CO/5 (2017) 41.

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Conflict of Interest Legislation in the Netherlands treated membership in a municipal council as incompatible with employment as a civil servant in subordination to local authorities. So when the author in Debreczeny v. Netherlands was elected to a local council, the council refused to accept his credentials because he was a national police sergeant. He claimed that the restriction on him taking his seat violated Article 25(b), because the mayor seldom gave direct orders to police sergeants; national police appointments were made by the Minister of Justice; the mayor had authority over national police officers only with respect to the maintenance of public order; and for the exercise of this authority the mayor was not accountable to the municipal council but to the Minister of Internal Affairs. The Committee found there was no violation, noting that the restrictions on the right to be elected to a municipal council were regulated by law, and based on objective criteria, namely, the electee’s professional appointment by or in subordination to the municipal authority. The purpose was to guarantee the democratic decision-making process by avoiding conflicts of interest, so were ‘reasonable and compatible with the purpose of the law’. Furthermore, the author was serving as a police officer in the town where he was elected. For matters of public order he was subordinated to the mayor of the town, who was himself accountable to the council for measures taken. (The Committee also found no violation of Article 26 in the existence of an exception for volunteer firemen and teaching staff, because it was based on objective criteria, namely, the absence of income dependency for volunteer firemen, and the lack of direct supervision by the municipal authority in the case of teaching staff.142) On a number of occasions the Committee has raised with States the justification for depriving the police and the armed forces of the right to vote, or depriving them (and other public servants) of the right to seek elective office.143

142 Debreczeny v. Netherlands, CCPR/C/53/D/500/1992, 3 April 1995 [9.2] [9.4]. See also GC 25 [16] (measures to avoid any conflicts of interest should not unduly limit the rights protected by paragraph (b)); Bulgaria CCPR/C/BGR/CO/4 (2018) 41 (concern at the low percentage of public institutions that complied with the requirement to publish the conflict of interest declarations of their employees). 143 E.g., Peru A/38/40 (1983) 273 (deprivation of members of the police and the armed forces of the right to vote); New Zealand (Cook Islands) A/40/40 (1985) 446 (questioning whether the requirement for resignation from the public service of elected officials would not deter public servants from seeking elective office); Ecuador A/47/40 (1992) 254 (members of the police and the armed forces did not have the right to vote); Dominican Republic CCPR A/48/40 (1993) 444 (members of the police and the armed forces denied the right to vote and to be elected); Paraguay A/50/40 (1995) 214 (restrictions on voting for students of military schools).

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( C ) TO HAV E A C C E S S , O N G E N E R A L T E R M S O F E Q UA L I T Y, TO P U B L I C SE RV I C E I N H I S C O U N T RY To ensure access to public service positions on general terms of equality, the criteria and processes for appointment, promotion, suspension and dismissal must be objective and reasonable, and also non-discriminatory, though affirmative measures may be taken and indeed in the review of country reports are often recommended to redress inequalities, particularly for women and minority groups.144 The public service should be merit-based, providing secure tenure, free from political interference or pressures.145 It does not, however, extend to overseas positions outside the public service of the country concerned.146 ‘General Terms of Equality’ The Committee found an Article 25(c) violation in Páez v. Colombia in the State’s treatment of the author which made his continued work in the public service untenable. He was a secondary school teacher of religion and ethics, but as a ‘liberation theology’ advocate his social views differed from those of the then Apostolic Prefect of Leticia, who withdrew the support that the Church had given to the author’s appointment. Unfounded accusations of theft followed, and the author was informed that he would no longer teach religion but instead a course in manual labour and handicrafts for which he had no training or experience. In order to qualify himself to teach those subjects he requested two weeks’ leave to attend an advanced course, which was denied, but since there was a teacher’s strike at the time he was able to attend. He was suspended from his post for sixty days and given a six-month salary freeze for having abandoned his post without permission. After taking legal action these decisions were annulled. He was then subjected to pressure to resign, with the threat that criminal proceedings would be instituted against him if he did not resign, and indeed they were. He then received anonymous death threats if he did not withdraw his complaint against the Apostolic Prefect and the education authorities. A work colleague was shot dead outside the teachers’ residence by unknown killers and the author was himself attacked. Fearing for his life, he left the country and sought political asylum in France. The Committee supported its finding with the simple statement that this constant harassment, and the threats against the author’s person (against which the State failed to provide protection) made his continuation in public service teaching impossible.147 The ‘general terms of equality’ requirement of Article 25(c) were 144 See section ‘Without Any of the Distinctions Mentioned in Article 2’, above. 145 GC 25 [23]. 146 H. v. Netherlands, Communication No. 217/1986, CCPR/C/OP/2 at 70 (1990), 8 April 1987 [3.2] (author’s grievance concerned the recruitment policies of an international organisation, the European Patent Office). 147 Páez v. Colombia, CCPR/C/39/D/195/1985, 12 July 1990 [5.9] [5.10].

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not mentioned, but the facts bear out discrimination on the basis of opinion or belief. The weakness in this aspect of Páez (in not explicating the requirement for equality) was addressed in part by the Committee in Adimayo M. et al. v. Togo, a case with some parallels with Páez brought by three individuals who were removed from their positions, two of whom taught at university level, for activities considered contrary to the interests of the government. The Committee commented that ‘access to public service on general terms of equality encompasses a duty, for the State, to ensure that there is no discrimination on the ground of political opinion or expression. This applies a fortiori to those who hold positions in the public service. The rights enshrined in Article 25 should also be read to encompass the freedom to engage in political activity individually or through political parties, freedom to debate public affairs, to criticize the Government and to publish material with political content.’148 There is no reason to assume the Committee’s position would be any softer in the case of religious discrimination. Affirmative Action Stalla Costa v. Uruguay concerned the compatibility with Article 25(c) of a measure redressing the harms caused during a twelve-year period of military rule when many public servants were dismissed on ideological, political or trade union grounds. Only former public employees who were dismissed as a result of that were being admitted to the public service, and were given the right to be reinstated in their old posts. The Committee accepted that those victims were entitled to an effective remedy (under Article 2(3)(a)) and it regarded this measure as providing such a remedy. It was not therefore incompatible with the reference to ‘general terms of equality’ in Article 25(c), nor was it an invidious distinction under Article 2(1), or prohibited under the terms of Article 26.149 There was also found to be no violation of Articles 25(c), 2(1), 3 or 26 in Guido Jacobs v. Belgium in a gender-based quota system for access to a non-justice seat on the Belgian High Council of Justice. The High Council consisted of a Frenchspeaking college and a Dutch-speaking college, each comprising eleven justices and eleven non-justices. At least four members were needed, of each sex, among the non-justices in each college. The High Council exercised authority in presenting candidates for appointment as judges or prosecutors, and in training them, it issued opinions and proposals for the operation and organisation of the judicial branch, and examined complaints. The gender requirement was introduced to promote balance between men and women on advisory bodies in response to the very low numbers of women then acting on them. The Committee was 148 Aduayom et al. v. Togo, CCPR/C/51/D/422 424/1990, 12 July 1996 [7.5]. 149 Costa v. Uruguay, Communication No. 198/1985, Supp. No. 40 (A/42/40) at 170 (1987), 9 July 1987 [10].

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unpersuaded by the author’s argument that the insufficient number of female applicants at the first call for candidates in the recruitment round in which he was unsuccessful proved there was no gender inequality. On the contrary, it may reveal a need to encourage women to apply for service and for remedial measures. Better awareness of gender-relevant issues relating to the application of law was also relevant. The Committee could not therefore conclude that the requirement was not objective and reasonably justifiable. As to proportionality, the gender requirement only applied to just over one-third of the candidates selected, which was not disproportionate. Qualifications were not rendered irrelevant, as the author argued, since all non-justice applicants had to have at least ten years’ experience. Reasonable proportionality was maintained between the purpose of the gender requirement, to promote equality between men and women in consultative bodies; the means applied and its modalities; and one of the principal aims of the law, which was to establish a High Council made up of qualified individuals.150 Procedural Fairness in Disciplinary Proceedings Failure to respect basic procedural fairness in disciplinary proceedings may lead to their being characterised as unreasonable and arbitrary, in violation of Article 25(c). In Bandaranayake v. Sri Lanka the Article 25 focus was on significant irregularities during proceedings which resulted in the dismissal of the author, a district judge, following an incident in which he was stopped at a checkpoint and was abused by the police. He presented his identity card, and brought the matter to the attention of the officer-in-charge of the local police station. The police officer who was at the checkpoint visited the author in his chambers and apologised. The author was then questioned before the Judicial Service Commission (JSC) and charged with interfering with the performance of the police officer’s duties, making a false statement and of having exceeded his authority. A Committee of Inquiry appointed by the JSC investigated the matter and the author was ultimately dismissed. In assessing his assertion that the procedure leading to his dismissal was neither objective nor reasonable, the Committee noted that despite numerous requests he did not receive a copy of the proceedings from his first hearing before the JSC, nor the findings of the Committee of Inquiry, on the basis of which he was dismissed. The JSC rules state that reasons for findings relating to an inquiry will not be issued, and no official explanation was offered for this. The only reason given for the author’s dismissal was the Committee of Inquiry’s finding that he had been found guilty of the charges against him. The JSC also took cognisance of incidents of alleged past misconduct, from which the author 150 Jacobs v. Belgium, CCPR/C/81/D/943/2000, 7 July 2004 [9.4] [9.5]. For concern at a ruling against gender quotas in the context of parliamentary and communal elections, see Guinea CCPR/C/GIN/CO/3 (2018) 19.

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had already been exonerated. The failure to provide all of the documentation necessary to ensure that he had a fair hearing, in particular disclosing the reasoning behind the Committee of Inquiry’s guilty verdict, on the basis of which he was ultimately dismissed, amounted to a dismissal procedure which did not respect the requirements of basic procedural fairness and was thus unreasonable and arbitrary, in violation of Article 25(c).151 Dismissal of a Judge as an Attack on the Independence of the Judiciary The lack of basic procedural fairness in Bandaranayake v. Sri Lanka also caused the Committee to find a violation of Article 25(c) in conjunction with Article 14(1), because it failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, constituting an attack on the independence of the judiciary.152 For that principle it relied on General Comment 32 on Article 14, which also states that ‘judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law’.153 A number of aggravating factors additionally applied in Adrien Busyo et al. v. Congo. The authors were acting on their own behalf and on behalf of sixty-eight other judges, out of a total of 315 judges and prosecutors, who were dismissed as part of a presidential decree which followed reports by various commissions set up by the Ministry of Justice showing them to be immoral, corrupt, deserters or incompetent. The authors contested the legality of their dismissals, but received no response, so they referred their appeals to the Supreme Court, in due time. The Attorney-General failed to give his views within the requisite period, and his report when issued merely confirmed for the Committee that established procedures and safeguards for their dismissal were not respected. The Supreme Court supported the decree as an act of government aimed at raising moral standards in the judiciary and improving the functioning of one of the three powers of the State. The authors had no success in raising the matter before the Minister for Human Rights. On the contrary, warrants were issued for the arrest of two of the judges to deter them pressing their claims. The warrants were withdrawn following a meeting with the Minister of Justice, but in response to a letter to the minister

151 Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, 24 July 2008 [7.1] [7.2]. On the ‘failure to respect the established procedures and guarantees that all citizens must be able to enjoy on general terms of equality’, see also Busyo et al. v. Congo, CCPR/C/78/D/933/2000, 31 July 2003 [5.2]. 152 Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, 24 July 2008 [7.3]. For the importance of judicial independence, see chapter on Article 14: Fair Trial Rights, sections ‘Competent, Independent and Impartial Tribunal Established by Law,’ ‘Independence’. 153 General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), 23 August 2007, CCPR/C/GC/32 [64], [20], respectively.

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concerning the lack of action two judges (one of whom was the subject of one of the warrants) were arrested and detained. This unquestionable attack on the judiciary (in violation of Article 25(1), read in conjunction with Article 14(1)) entailed disregard for the procedural guarantees to which the authors were entitled (and by virtue of which they should have been brought before the Supreme Council of the Judiciary in accordance with the law), compounded by the fact that the President of the Supreme Court had publicly, before the case was heard, supported the dismissals, thereby damaging the equitable hearing of the case. The Supreme Court ruling also deprived the authors of all remedies by declaring that the presidential decree was an act of government.154 The Committee made similar findings in Pastukhov v. Belarus. A judge of the Constitutional Court was removed from his position by presidential decree less than three years into its eleven-year term, on the ground that his term of office had expired following the entry into force of the new Constitution. His appeal failed, as did his application for judicial review, on grounds of lack of competence of the court to consider disputes over reinstatement of Constitutional Court judges. The sole reason given was the expiry of his term. Also significant was that there were no effective judicial protections.155 The concurring Individual Opinion of Ms Ruth Wedgwood and Mr Walter Kaelin unmasked the reality of the dismissal when commenting that the ‘change here was part of an attempt to consolidate power in a single branch of government through the pretence of a constitutional referendum. It has interrupted the state party’s fledgling progress towards an independent judiciary. As such, the presidential decree dismissing Judge Pastukhov from his office as judge of the Constitutional Court violated the rights guaranteed to him and to the people of Belarus under Articles 14 and 25 of the Covenant.’156 Appropriate Remedies The author in Mazou v. Cameroon was dismissed from his position as a magistrate following a coup d’état after he was suspected of having sheltered his brother who was wanted for participating in the coup. The author was sentenced and also removed from his post as Secretary General in the Ministry of Education and Chairman of the Governing Council of the National Sports Office, by presidential decree, without reasons. Following his ultimate release and annulment of that decree he sought remedies for injury suffered and to restore his career, as if reinstated at the grade to which he would have been entitled had he not been 154 Busyo et al. v. Congo, CCPR/C/78/D/933/2000, 31 July 2003 [2.2], [2.4], [5.2]. 155 Pastukhov v. Belarus, CCPR/C/78/D/814/1998, 5 August 2003 [2.1] [3.4], [5.1] [5.4], [7.2] [7.3] (violation of Art. 25(c), read in conjunction with Art. 14(1)). 156 Individual Opinion of Committee Members Ms Ruth Wedgwood and Mr Walter Kaelin in Pastukhov v. Belarus, CCPR/C/78/D/814/1998, 5 August 2003.

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dismissed. The Committee agreed that reinstatement more than ten years after removal from his post did not constitute a satisfactory remedy in the meaning of Articles 2 and 25. The State was under an obligation to reinstate him in his career, with all the attendant consequences under Cameroonian law, and to ensure that similar violations did not recur.157 Official decisions by the authorities aimed at vindicating Article 25 complaints often fail to constitute an effective remedy. The Committee found a violation of Article 25(c) in conjunction with Article 2 in Gedumbe v. Congo. The author was suspended from his position as director of the consular school in Burundi by the then Zairian ambassador to Burundi, following a complaint of embezzlement of consular school salaries against the ambassador by the author and other staff members. A factfinding commission made an overwhelming report against the ambassador and confirmed all the allegations against him. An order reinstating the author to his position in Burundi was never implemented, nor was an order that his salary arrears be paid, because the ambassador informed the authorities in Zaire that the author was a member of a network of political opponents of the Zairian Government, and he therefore requested the authorities to expel him. None of the author’s steps to ensure the orders be actioned availed.158 Vargas-Machuca v. Peru similarly concerned a failure to reinstate the author, even though this was officially ordered. He was commander in the Peruvian National Police and local Chief of the Police Drug Squad, but was relieved of his duties as a disciplinary measure following the death in custody of someone arrested for international drug trafficking. An official report stated that the author had failed to inform his superiors of the action he had taken against the deceased, although this was strongly disputed. The author secured an order for his reinstatement, but because it was never implemented the Committee found a violation of Article 25(c), in conjunction with Article 2(3).159

I M P L E M E N TAT I O N General Comment 25 directs attention to various specific aspects of implementation when commenting in relation to: Article 25(a) that the allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs should be established by the Constitution and other laws;160 Article 25(b) that (in addition to detailed electoral system requirements) the right to vote and the right to stand for election are related, since effective implementation of the latter ensures that those entitled to vote have a free choice of candidates;161 and Article 25(c) on the need for affirmative measures to ensure 157 158 159 161

Mazou v. Cameroon, CCPR/C/72/D/630/1995, 26 July 2001 [8.4] [9]. Gedumbe v. Congo, CCPR/C/75/D/641/1995, 9 July 2002 [5.2] [5.3]. Vargas Machuca v. Peru, CCPR/C/75/D/906/2000, 22 July 2002 [7.4]. GC 25 [15].

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160 GC 25 [5].

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equal access to public service,162 a point strongly reinforced by the Committee’s jurisprudence and Concluding Observations. Committee dialogue on State reports about implementation under Article 25 has already been traversed in various sections above, particularly as it concerns the compliance requirements for electoral systems.163 It also includes recurrent exhortation to take appropriate measures to ensure all rights enumerated in Article 25 are covered in domestic law,164 allowing them to be exercised without undue limitation;165 to bring legislation in line with the rights of prisoners to vote;166 to address certain discriminatory practices, to answer fundamental inequalities, and to take affirmative action to correct inequality between men and women.167 The Committee has encouraged States to consider withdrawing their declarations and reservations, including those concerning: Article 25(b) by Switzerland,168 Kuwait,169 and China (Macao) (lying at the core of democratic government because China expressed the intention not to institute universal suffrage, nor indicate a timeline for a compliant electoral system),170 and China (Hong Kong) (which indicated timescales for universal and equal suffrage but without a clear plan);171 and Article 25(c) by Monaco (an interpretive declaration allowing distinctions between Monegasque and foreign nationals).172 The reservation by Pakistan limited the application of Article 25 to conformity with certain provisions of the Constitution.173

C O N C L US I O N The careful design of Article 25 facilitates ratification of the Covenant on a universal scale, by countries of diverse constitutional variety and political 162 GC 25 [23]. 163 See section ‘Electoral System Requirements’, above. 164 E.g., Mauritius A/33/40 (1978) 509 (Constitutional guarantees do not cover all the rights enumerated in Art. 25). 165 E.g., Belgium A/47/40 (1992) 430 (reflect more adequately in internal administrative practice the provisions of the Covenant that are not reflected in the European Convention (e.g., Arts 25, 26 and 27)); Iran CCPR/C/79/Add.25 (1993) 23 (ensure that the rights in Arts 17, 19, 21, 22 and 25 can be exercised without any limitations or restrictions other than those provided for in the Covenant). See also Iceland CCPR/C/79/Add.98 (1998) 8 and Iceland CCPR/CO/83/ISL (2005) 9 (Arts 3, 4, 12, 22, 24, 25, 26 and 27, go beyond the provisions of the European Convention). 166 See section ‘Prisoners’, above. 167 See section ‘Without Any of the Distinctions Mentioned in Article 2’, above. 168 Switzerland CCPR/C/CHE/CO/3 (2009) 4; Switzerland CCPR/C/CHE/CO/4 (2017) 10. 169 Kuwait CCPR/C/KWT/CO/2 (2011) 7 (Kuwaiti electoral law restricted the right to stand and vote in elections to males); partially withdrawn: Kuwait CCPR/C/KWT/CO/3 (2016) 5, 8. 170 China (Macao) CCPR/C/CHN HKG/CO/3 (2013) 7. 171 HK SAR CCPR/C/CHN HKG/CO/3 (2013) 6. See also Australia’s interpretive declaration raised at Australia A/43/40 (1988) 452, 453 (regional interests may be taken into account in defining electoral divisions, or which establish franchises for municipal and other local govern ment elections). 172 Monaco CCPR/CO/72/MCO (2001) 4; Monaco CCPR/C/MCO/CO/2 (2008) 6. 173 Pakistan CCPR/C/PAK/CO/1 (2017) 7.

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structure, including those with a one-party system, or a predominantly theocratic or other ideology, even if such models pose inevitable challenges for implementation. Article 25 does not dictate particular modalities of government, or condemn others, provided there is universal and equal suffrage, certain electoral safeguards are met, and full participation is secured in the conduct of public affairs. Article 25 leaves other Covenant provisions to supply the essential rights needed for the proper functioning of democracy, notably the freedoms of thought, conscience and religion, of expression, of assembly and of association. These are axiomatic in any healthy democratic society. In addition to promoting the free exchange of information and ideas, they support the fundamental institutional means for the existence of political parties, and even parliament, the pinnacle assembly for Article 25 purposes. Without such expressive freedoms, effectually guaranteed, there would be no viable democracy. The freedoms enshrined in Article 25 are also supported by the less conspicuous Article 5, which aims to avoid Covenant rights being construed in a way that gives mandate to activities aimed at the destruction of any of the rights and freedoms recognised by the Covenant, and that helps to prevent the emergence of fascist and similar anti-democratic regimes.174 Even Article 4, which has all the appearance of a simple concession permitting derogation in times of public emergency, does much to preserve the rule of law when an undemocratic regime seeks to seize or consolidate power.175 The mutual reinforcement and interdependency of Covenant provisions within a single scheme is inescapable.

174 See chapter on Article 5: Bar on Interpreting the Covenant in Abuse of Rights, section ‘Article 5(1)’. 175 See chapter on Article 4: Derogation in Times of Officially Proclaimed Public Emergency Threatening the Life of the Nation.

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Article 26: Equality before the Law Equal Protection of the Law

INTRODUCTION EQUALITY BEFORE THE LAW AND EQUAL PROTECTION OF THE LAW WITHOUT DISCRIMINATION (REASONABLE AND OBJECTIVE CRITERIA) ISSUES OF PROOF IN DISCRIMINATION CASES GROUNDS OF DISCRIMINATION IMPLEMENTATION CONCLUSION

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Covenant Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Comparable Provisions in Other International Instruments European Convention: Article 1 of Protocol 12. American Convention on Human Rights: Article 24. African Charter on Human and Peoples’ Rights: Article 3(1) and (2).

INTRODUCTION Key Elements of Article 26 Article 26 was introduced in the chapter on Article 2.1 It enshrines a general right to equality before the law and, without discrimination, to the equal protection of the law. As a further stipulation applicable to equal protection, the law is required to prohibit discrimination and guarantee equal and effective protection against discrimination on the enumerated grounds. Equality before the law is intended to 1 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, sections ‘The Rights to Equality and Non discrimination’, and ‘How the Key Equality and Non discrimination Provisions (Articles 2(1), 3 and 26) Differ from Each Other’.

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ensure equality in the application of the law, such as by courts or administrative bodies, to prevent arbitrariness. Equal protection of the law imposes a particular legislative burden on States. Most Article 26 individual petitions are under the equal protection limb. This chapter begins by differentiating the two. Articles 2(1) and 3 guarantee non-discriminatory enjoyment of Covenant rights: Article 2(1) on the stated grounds; Article 3 on the basis of the equal right of men and women to such enjoyment. In spite of their differences, Articles 2(1), 3 and 26 have in common certain definitional aspects of discrimination, which distinguish direct from indirect discrimination and prohibit both, but exclude from scope differentiation of treatment where the criteria applied are reasonable and objective and the aim is to achieve a purpose which is legitimate under the Covenant. Other similarities include the requirements that those claiming discrimination must be treated differently from others in similar situations, that the categories of those compared must not be relevantly distinguishable, that the impugned distinction must be based on a relevant characteristic, and that the alleged victim must belong within the relevant category. Articles 2 and 26 are identical in the grounds on which discrimination is to be prohibited: ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. These grounds are explored individually in this chapter. Chapter Outline This chapter considers in turn each of the key phrases within Article 26 (‘equality before the law’, ‘equal protection of the law’, ‘without discrimination’, and each of the listed ‘grounds of discrimination’), and intersperses them with related discussion on issues of proof or concerning implementation.

E Q U A L I T Y BE F O R E TH E L AW A N D E Q U A L PR O TE CT IO N OF TH E LAW Equality before the Law In drafting the equality before the law text misgivings were expressed that the phrase ‘all persons are equal before the law’ might be taken to mean that the law should be the same for everyone, or would operate preclude the imposition of reasonable legal disabilities upon certain categories of individuals such as minors or those of unsound mind. In reply, it was explained that the expression did not refer to the substance of the law itself, but to the conditions under which the law was to be applied. It was intended to ensure equality, not identity, of treatment, and

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would not preclude reasonable differentiations between individuals or groups of individuals.2 Nowak comments that: the right to equality before the law does not give rise to a claim of whatever nature to substantive equality but instead solely to a formal claim that existing laws be applied in the same manner to all those subject to them. Thus, the right to equality before the law is not directed at legislation but rather exclusively at its enforcement. It essentially means that judges and administrative officials must not act arbitrarily in enforcing laws. Equal treatment in this context does not mean identical treatment, such that individual features distinguishing humans from one another, such as talents, characteristics, etc, may naturally play a role in the specific enforcement decision. The principle of equality merely requires that objectively equal fact patterns be treated equally, but also that objectively unequal fact patterns be treated unequally.3

The Committee summarised the position in Borzov v. Estonia by stating that ‘an individual may be deprived of his right to equality before the law if a provision of law is applied to him or her in arbitrary fashion, such that an application of law to an individual’s detriment is not based on reasonable and objective grounds’.4 In Sister Immaculate Joseph et al. v. Sri Lanka it found a violation of the right to equality before the law when a religious order’s application for incorporation was refused, without either notification of the proceeding or an opportunity to be heard, when other affected parties in civil proceedings were afforded such rights.5 Findings of violation under both the equality before the law and equal protection of the law limbs are not uncommon and were made, for example, in Kavanagh v. Ireland, O’Neill and Quinn v. Ireland, Q v. Denmark and Walderode v. Czech Republic, discussed in more detail below.6 Equal Protection of the Law Nowak argues on the basis of the drafting history and linguistic structure of Article 26 that its second sentence relates only to equal protection of the law, and by specifying that ‘the law shall prohibit discrimination and guarantee . . . equal and effective protection against discrimination’ it serves to clarify the meaning of the terms ‘equal protection’ and ‘without discrimination’ concerning that limb only. By contrast to equality before the law, equal protection of the law is directed at the national legislature with two dimensions: a negative one requiring the absence of discrimination when enacting laws, and a positive one by which the

2 A/2929 (1955), Ch.VI, p. 69 [179]. 3 Nowak, CCPR Commentary, pp. 605 6 (fns omitted). 4 Borzov v. Estonia, CCPR/C/81/D/1136/2002, 26 July 2004, [7.2], citing Kavanagh v. Ireland, CCPR/C/71/D/819/1998, 4 April 2001 [10.3]. 5 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [7.5]. 6 See section ‘Without Discrimination (Reasonable and Objective Criteria, and National Origin)’, below.

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legislature must prohibit discrimination by enacting special laws and affording effective protection against discrimination.7 The lack of definition of ‘discrimination’ (among other uncertainty surrounding the meaning of Article 26) ‘left considerable room for the Committee to develop its understanding and interpretation of Article 26’,8 which will be explored in the remainder of this chapter.

W I T H O U T D I S C R I M I N AT I O N ( R E A S O N A B L E AND OBJECTIVE CRITERIA) Early Development The Committee affirmed a number of principles now familiar to its approach under Articles 2 and 26 in its early decisions in Broeks v. Netherlands,9 Zwaan-deVries v. Netherlands10 and L.G. Danning v. Netherlands,11 all published on the same day in April 1987. These concerned social security legislation, which in the case of Broeks and Zwaan-de-Vries differentiated on the basis of sex (by allowing unemployment benefits to a married woman only if she was a ‘breadwinner’, when that condition did not apply to married men), and in Danning on the basis of married status (by providing for higher disability payments if beneficiaries were married rather than cohabiting). Reasoning in all three cases was the same. The Committee noted that Article 26 derives from Article 7 of the Universal Declaration, which prohibits discrimination in law or in practice in any field regulated and protected by public authorities. Article 26 is thus concerned with the obligations imposed on States in regard to their legislation and its application.12 Article 26, it continued, does not of itself contain any obligation with respect to the matters that may be provided for by legislation, so that, for example, it does not require legislation to provide for social security benefits. However, any such legislation if enacted must comply with the Article 26 guarantee of equality before the law and equal protection of the law without any discrimination. Article 26 was not concerned with the extent of social security 7 Nowak, CCPR Commentary, pp. 607 8. For further detail on the drafting history and how the right to equal protection avoided the interpretation of absolute equality, see Tufyal Choudhury, ‘The Drafting of Article 26 of the International Covenant on Civil and Political Rights: Part 1’, (2002) 7(5) EHRLR, p. 591, at pp. 601 2. 8 Choudhury, ‘The Drafting of Article 26’, p. 603. 9 Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196, 9 April 1987. 10 Zwaan de Vries v. Netherlands, Communication No. 182/1984, CCPR/C/OP/2 at 209, 9 April 1987. 11 L.G. Danning v. Netherlands, Communication No. 180/1984, CCPR/C/OP/2 at 205, 9 April 1987. 12 Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 209 [12.3]; Zwaan de Vries v. Netherlands, Communication No. 182/1984, CCPR/C/OP/2 at 209 [12.3]; Danning v. Netherlands, Communication No. 180/1984, CCPR/C/OP/2 at 205 [12.3].

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provision but whether the legislation at issue violated the prohibition against discrimination contained in Article 26 and the guarantee given in it regarding equal and effective protection against discrimination. The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26.13 The conditions for meeting the ‘reasonable and objective criteria’ have since remained at the heart of routine decision-making under Articles 2, 3 and 26, and have been subject of extensive commentary.14 Around the same time as those early cases, in B.d.B. et al. v. Netherlands the term ‘all persons are entitled without discrimination to the equal protection of the law’ was interpreted to cover not only entitlements which individuals entertain vis-à-vis the State, but also obligations assumed by them pursuant to law.15 More recently, in Haraldsson and Sveinsson v. Iceland the Committee added the qualification that the term ‘discrimination’ under both Articles 2 and 26 not only implies exclusions and restrictions, but also preferences based on any listed grounds. (Owners of a fishing vessel were successful in their Article 26 claim after they were refused a harvesting quota because permits were awarded on the basis of catch performance and prior permit ownership.16) However, in Martínez de Irujo v. Spain Article 26 could not be invoked in response to demonstrable gender inequality in hereditary succession to ranks and titles of nobility by the daughter of a deceased duke who was passed over in favour of her younger brother, since this institution lies outside the underlying values behind the principles of equality before the law and non-discrimination protected by Article 26.17 Sample Cases in which Differential Treatment was Found to Constitute Discrimination Applying the ‘reasonable and objective’ criteria developed in Broeks, Zwaan-deVries and Danning the Committee found a violation of Article 26 in Gueye et al. v. France in legislation which differentiated between retired Senegalese and French soldiers following the loss of French nationality by retired Senegalese soldiers at independence. This was not based on reasonable and objective criteria 13 Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 209 [12.4] [13]; Zwaan de Vries v. Netherlands, Communication No. 182/1984, CCPR/C/OP/2 at 209 [12.4] [13]; Danning v. Netherlands, Communication No. 180/1984, CCPR/C/OP/2 at 205 [12.4] [13]. 14 See, e.g., Christopher McCrudden (ed.), Anti Discrimination Law (Ashgate Publishing, 2004); Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, 2008); Christopher McCrudden, Equality and Non Discrimination, in David Feldman (ed.), English Public Law, 2nd edn (Oxford University Press, 2009), p. 499. 15 B.d.B. et al. v. Netherlands, Communication No. 273/1989, A/44/40 at 286, 30 March 1989 [6.5]. 16 Haraldsson and Sveinsson v. Iceland, CCPR/C/91/D/1306/2004, 24 October 2007 [10.2] [10.4]. 17 Martínez de Irujo v. Spain, CCPR/C/80/D/1008/2001, 30 March 2004 [6.5].

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because nationality did not determine the granting of pensions to the authors, but the services they rendered in the past. They had served in the French Army under the same conditions as French citizens. A subsequent change in nationality could not by itself be considered sufficient justification for different treatment, since the basis for the grant of the pension was the same service which both classes of soldier had provided. Nor could differences in the economic, financial and social conditions as between France and Senegal provide legitimate justification, since retired soldiers of Senegalese nationality living in Senegal and retired soldiers of French nationality in Senegal enjoyed the same economic and social conditions, yet their treatment for the purpose of pension entitlements would differ.18 The lack of a reasonable basis for differentiation is more obvious where it is at odds with the basis on which the relevant right or entitlement at issue accrued. In a number of cases against the Czech Republic the Committee found a violation of Article 26 in the schemes for restitution of property confiscated in the former Soviet era, and these have parallels with the reasoning in Gueye.19 For example, in Simunek v. Czech Republic it considered unreasonable a precondition that claimants be Czech citizens and residents. Among relevant factors were that the author’s original property entitlement was not predicated either on citizenship or residence, and that the State was itself responsible for the departure of the authors (many left Czechoslovakia because of their political opinions and their property was confiscated either because of those opinions or because of their emigration). It would in any event be incompatible with the Covenant to require claimants permanently to return to the country as a prerequisite for restitution or compensation.20 This is in contrast to the claim in Drobek v. Slovakia (found inadmissible for non-substantiation) that a compensation programme which benefited individuals whose property was confiscated after 1948 was discriminatory because it did not compensate for injustices committed by earlier regimes (it excluded property taken from ethnic Germans by a 1945 decree of the preCommunist regime). Legislation adopted after the fall of the Communist regime in Czechoslovakia to compensate the victims of that regime was not prima facie discriminatory.21 In principle, all victims are entitled to redress without arbitrary distinctions. This had particular significance in Brokova v. Czech Republic. Legislation 18 Gueye et al. v. France, CCPR/C/35/D/196/1985, 3 April 1989 [9.5]. 19 See, e.g., Simunek et al. v. Czech Republic, CCPR/C/54/D/516/1992, 19 July 1995 [11.6]; Adam v. Czech Republic, CCPR/C/57/D/586/1994, 23 July 1996 [12.5]; Walderode v. Czech Republic, CCPR/C/73/D/747/1997, 30 October 2001 [8.3]; Kříž v. Czech Republic, CCPR/C/85/D/1054/ 2002, 1 November 2005 [7.3]. 20 Simunek et al. v. Czech Republic [11.6]. Followed in Blazek v. Czech Republic, CCPR/C/72/D/ 857/1999, 12 July 2001 [5.8]; Walderode v. Czech Republic [8.4]. 21 Drobek v. Slovakia, CCPR/C/60/D/643/1995, Views 14 July 1997 [6.5]. For similar conclusions, see Ruediger Schlosser v. Czech Republic, CCPR/C/64/D/670/1995, 3 November 1998 [6.5]; Malik v. Czech Republic, CCPR/C/64/D/669/1995, 3 November 1998 [6.5].

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provided restitution or compensation to victims of property confiscated for political reasons during the Communist regime. It also benefited certain victims of racial persecution during the Second World War. The author’s property in the centre of Prague was confiscated because he was Jewish, and the author himself was deported by the Nazis. In domestic litigation between the author and a company which had acquired the property as a result of it being subjected to Czech nationalisation immediately after the War, the court determined that the legislation did not entitle the author to restitution. The Committee found this constituted discriminatory treatment compared with those whose property was confiscated by Nazi authorities without being subjected to Czech nationalisation. Nationalisation could only be carried out because the author’s property was confiscated during German occupation.22 Waldman v. Canada, like Broeks, Zwaan-de-Vries and Danning, concerned the terms on which a financial benefit was provided. The Committee found a violation of Article 26 in differential treatment which conferred State funding for Roman Catholic schools forming part of the public education system, but not schools of other religions (such as the Jewish school the author’s children attended) which were private by necessity. It could not be considered reasonable and objective, even though nothing obliges a State Party to provide public funding to religious schools.23 Particularly difficult to assess are schemes which regulate access to limited resources. The Article 26 claim in Haraldsson and Sveinsson v. Iceland was based on differentiation between two groups of fishers: the first received a free quota simply because they had engaged in fishing the relevant quota species over a particular period of time; the second had to buy or rent a quota from the first group. While the aim of the distinction in protecting fish stocks was legitimate, the particular design and the modalities of its implementation did not meet the requirement of reasonableness. The Committee expressed the reality that every quota system introduced to regulate access to limited resources privileges, to some extent, the holders of quotas and disadvantages others without necessarily being discriminatory. However, in this case original rights to use and exploit a public property became transformed into individual property which could be sold or leased at market prices instead of reverting to the State for allocation to new quota holders in accordance with fair and equitable criteria. The property entitlement privilege accorded permanently to the original quota owners, to the detriment of the authors, was therefore not based on reasonable grounds.24 22 Brokova v. Czech Republic, CCPR/C/73/D/774/1997, 31 October 2001 [7.4] (irrespective of whether the arbitrariness in question was inherent in the law itself or whether it resulted from the application of the law by domestic courts, the Committee found this constituted the denial of the author’s right to equal protection of the law). 23 Waldman v. Canada, CCPR/C/67/D/694/1996, 3 November 1999 [10.6]. 24 Haraldsson and Sveinsson v. Iceland, CCPR/C/91/D/1306/2004, 24 October 2007 [10.4].

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Kavanagh v. Ireland concerned differential treatment following the decision of the Director of Public Prosecutions (DPP) to charge the author with a number of serious offences before a Special Criminal Court, resulting in an extraordinary trial procedure before an extraordinarily constituted court, thereby depriving him of various procedures available to others charged with similar offences in ordinary courts, notably trial by jury and wider grounds for judicial review. (The charges related to false imprisonment by a gang of the chief executive of an Irish bank and his family, robbery, demanding money with menaces and possession of a firearm.) This was permitted by domestic law if (as in the author’s case) the DPP considered (in its unfettered discretion) that the Special Criminal Court would be ‘proper’, or ordinary courts were ‘inadequate to secure the effective administration of justice’. No reasons were required to be given for such decisions by the DPP. The Committee found a violation of Article 26 (both to equality before the law and to the equal protection of the law) because trial by jury is an important protection which is generally available to the accused in Ireland, and it was necessary for the State to demonstrate, which it failed to do, that the decision to try him by another procedure was based upon reasonable and objective grounds.25 Sample Cases in which Differential Treatment was Not Found to Constitute Discrimination In O’Neill and Quinn v. Ireland the authors argued that similarly situated individuals should be treated similarly, in particular, that they should be afforded the same process before the courts. The Committee found no violation in the exclusion of the authors from a scheme for the release of prisoners under the ‘Good Friday Agreement’ (GFA), a package comprising an agreement between the governments of the United Kingdom and Ireland, and a political agreement between the two governments and various political parties. Ireland succeeded in justifying the exclusion of the authors from the scheme (and others involved in the same incident in which a police officer was murdered). Relevant factors were the timing of the murder (during a cease-fire), its brutality and the need to ensure public support for the GFA. Also, because the government felt the impact of the incident to be exceptional it decided that all those involved would be excluded from any subsequent agreement on the release of prisoners. The Committee felt it was not in a position to substitute the State’s assessment of facts with its own views, particularly with respect to a decision that was made nearly ten years before, in a political context, and leading up to a peace agreement. None of the material before it disclosed arbitrariness and it concluded that the authors’ rights 25 Kavanagh v. Ireland, CCPR/C/71/D/819/1998, 4 April 2001 [10.2]. Note also Bakurov v. Russian Federation, CCPR/C/107/D/1861/2009, 25 March 2013 [10.6] (the fact that a federal State permits differences among the federal units in respect of jury trial does not in itself constitute a violation of Art. 26 of the Covenant).

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to equality before the law and to the equal protection of the law had not been violated.26 Hipólito Solari-Yrigoyen’s Dissenting Opinion challenged the undue weight given by the Committee to the exceptional impact of the incident and its repercussions on public opinion (based on State assertions that the offences ‘caused outrage’, that the Irish people would not tolerate the authors’ early release, and that when this possibility was raised in parliament it provoked ‘strong public criticism’). He considered there was a violation both of the equality before the law and equal protection of the law provisions because the State had not shown its decision was based on fair and reasonable grounds rather than on political and other considerations unacceptable under the Covenant.27 At times the Committee is divided on the question of whether the criteria for differentiation are reasonable and objective, and this may be attributed to the selection of matters taken to be relevant. In Frederic Foin v. France the central issue was whether twenty-four months non-military service for a recognised conscientious objector, as a substitute for twelve months compulsory military service, was a violation of Article 26. The Committee found it was, because the State justified this difference at best only in general terms, relying on the argument that doubling the length of service was the only way to test the sincerity of an individual’s convictions.28 Those dissenting reached the opposite conclusion because they took account of other factors. They considered a State could adopt reasonable mechanisms for distinguishing conscientious objectors from others, provided this did not result in genuine conscientious objectors forgoing their objections. Among the merits of this method were that it provided a nonpunitive, practical means of avoiding exploitation of alternative service for convenience rather than conscience, and dispensed with an intrusive investigation into matters of conscience. The majority’s approach did not take into account such matters as the range of choice available to conscientious objectors in assuming alternative posts, including in their own professional fields (when soldiers were assigned to positions without any choice), their higher rates of remuneration than those in the armed forces, the more relaxed system of discipline compared with military discipline night and day, and that they avoid the risks of injury during manoeuvres or military action.29

26 O’Neill and Quinn v. Ireland, CCPR/C/87/D/1314/2004, 24 July 2006 [8.4]. 27 Dissenting Opinion of Mr Hipólito Solari Yrigoyen [1] [6]. See also Individual Opinion by Mr Rajsoomer Lallah and Ms Christine Chanet: ‘While Article 26 permits, in principle, different treatment between several claimants on reasonable and objective criteria, such criteria cease to be reasonable and objective when they are based on essentially political considerations expressly prohibited by Article 26, whether in the enactment of laws or in their implementation or else in their judicial adjudication.’ 28 Foin v. France, CCPR/C/67/D/666/1995, 9 November 1999 [10.3]. 29 Dissenting Opinion of Messrs Nisuke Ando, Eckart Klein and David Kretzmer. See also Aapo Järvinen v. Finland, CCPR/C/39/D/295/1988, 25 July 1990 [6.5] where the Committee found arrangements for prolonged alternative service (sixteen as opposed to twelve months) were not

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As to age-related distinctions, the Committee took account of the national and international practice of imposing a mandatory retirement age of 60 in the interests of flight safety in Love et al. v. Australia when finding there was no violation when this was applied to Qantas pilots.30 However, in Albareda v. Uruguay it found the difference in retirement age between two levels of senior executive employees to be unjustified, rejecting the extraordinarily low threshold applied by the domestic court to the effect that it was sufficient that the difference of treatment ‘does not appear irrational’.31 The Committee required an explanation (which was absent) of how a public servant’s age could affect performance at the lower level of seniority ‘so specifically and differently from the performance [at the higher level] as to justify the difference of 10 years between compulsory retirement ages’.32 Some industries are idiosyncratic and inevitably generate particularised treatment. The unusual tax regime for croupiers in Portugal led to the claim in Gonçalves et al. v. Portugal that croupiers were discriminated against vis-à-vis the members of other professions because they alone pay taxes on their tips. The Committee accepted that the regime was of a unique and specific nature, but it did not consider it was in a position to conclude that it was unreasonable in the light of such considerations as the size of tips, how they were distributed, the fact they were closely related to the employment contract and the fact that they were not granted on a personal basis.33 Indirect Discrimination/Discrimination in the Failure to Differentiate The Covenant itself does not define ‘discrimination’, but the Committee has drawn on ICERD and CEDAW to shape its own interpretation of Articles 2 and 26, based on purpose or effect.34 It explained in General Comment 18 that discrimination ‘should be understood to imply any distinction, exclusion,

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discriminatory, since they were not merely for State convenience but removed from conscien tious objectors the task of convincing an examination board of the genuineness of their beliefs. Love et al. v. Australia, CCPR/C/77/D/983/2001, 25 March 2003 [8.2] [8.3]. Albareda et al. v. Uruguay, CCPR/C/103/D/1637/2007, 1757 & 1765/2008, 24 October 2011 [9.3]. See also Solís v. Peru, CCPR/C/86/D/1016/2001, 27 March 2006 [6.4] (reorganisation of public body resulting in dismissal on the basis of time in service and age not unreasonable). Albareda et al. v. Uruguay, CCPR/C/103/D/1637/2007, 1757 & 1765/2008, 24 October 2011 [9.4]. Gonçalves et al. v. Portugal, CCPR/C/98/D/1565/2007, 18 March 2010 [7.5]. See also Bartolomeu v. Portugal, CCPR/C/100/D/1783/2008, 19 October 2010 [8.4]. ICERD and CEDAW both refer to ‘any distinction, exclusion or restriction’ (and in the former convention also any ‘preference’) on the Convention specific grounds, respectively, of race and gender. To constitute discrimination it must have the effect or purpose under ICERD of ‘nullify ing or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’, and under CEDAW of ‘impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. Note

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restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms’.35 The reference to ‘purpose or effect’ demonstrates that both direct and indirect discrimination are covered. General Comment 18 also attests to the principle that the enjoyment of rights and freedoms on an equal footing does not mean identical treatment in every instance, and it provides examples from within the Covenant itself.36 Indirect, or de facto, discrimination occurs where a measure that is neutral on its face disproportionately affects those in a particular group, without reasonable and objective justification. It has been described on numerous occasions in terms of ‘a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons’.37 The Committee characterised the complaint in Bhinder Singh v. Canada in those terms when workplace safety legislation required the author, a Sikh, to wear a helmet: ‘legislation which on the face of it, is neutral in that it applies to all persons without distinction, is said to operate in fact in a way which discriminates against persons of the Sikh religion’.38 Its conclusion was the same whether it approached the claim from the perspective of Article 18 or Article 26, though it preferred Article 18, finding that termination of his employment for refusing to wear safety headgear instead of a turban was justified under Article 18(3) because it was reasonable and directed towards objective purposes compatible with the Covenant. Krishnaswami acknowledged the potential harm of seemingly neutral laws for religious followers when commenting that ‘since each religion or belief makes different demands on its followers, a mechanical approach to the principle of equality which does not take into account the various demands will often lead to injustice and in some cases discrimination’.39 In Althammer v. Austria the Committee was more specific as to how indirect discrimination may be constituted when responding to a claim that the abolition of

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also ILO Convention 111, Discrimination (Employment and Occupation) Convention, 1958, Art. 1(1)(a) is in similar terms (‘which has the effect of nullifying or impairing’). CCPR General Comment No. 18: Non discrimination, 10 November 1989, adopted at the Thirty seventh Session of the Human Rights Committee (GC 18) [7]. GC 18 [8], referring to distinctions based on age and pregnancy in Art. 6(5), age in Art. 10(3) and citizenship in Art. 25. Derksen v. Netherlands, CCPR/C/80/D/976/2001, 1 April 2004 [9.3]; Simunek et al. v. Czech Republic, CCPR/C/54/D/516/1992, 19 July 1995[11.7]; Althammer et al. v. Austria, CCPR/C/78/ D/998/2001, 8 August 2003 [10.2]; Prince v. South Africa, CCPR/C/91/D/1474/2006, 31 October 2007 [7.5]. Bhinder v. Canada, CCPR/C/37/D/208/1986. 9 November 1989 [6.1]. Arcot Krishnaswami, ‘Study of Discrimination in the Matter of Religious Rights and Practices’, (1978) 11 NYUJ Int. L. & Pol., p. 227, at p. 230.

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certain household benefits affected the authors, as retired persons, to a greater extent than it did active employees. Expanding on the principle that Article 26 may be violated by the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate, the Committee noted that ‘such indirect discrimination’ can be said to be based on the grounds enumerated in Article 26 only if the detrimental effects of a rule or decision exclusively or disproportionately affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Rules or decisions with such an impact do not amount to discrimination if they are based on objective and reasonable grounds.40 However, the authors failed to demonstrate that the impact on them of abolishing household benefits was disproportionate (especially since this loss was combined with an increase of children’s benefits which was of no value to active employees who did not have children in the relevant age bracket). Even if it was, the Committee was prepared to accept that it was based on objective and reasonable grounds. It was not a retirement benefit but a supplementary allowance, and its abolition was based on legitimate motives of social policy utilising limited financial resources to increase children’s benefits. In Prince v. South Africa the Committee adopted the same definition and requirements for indirect discrimination (as it did in Althammer et al. v. Austria), when the author, a Rastafarian, claimed to be a victim of de facto discrimination because unlike others, he has to choose between adherence to his religion and respect for the laws of the land in the face of a prohibition on the possession and use of cannabis. Since it affected all individuals equally, including members of other religious movements who may also believe in the beneficial nature of drugs, the Committee found the prohibition was based on objective and reasonable grounds. The failure to provide an exemption for Rastafarians did not constitute differential treatment.41 By contrast, in F.A. v. France the author, who was a Muslim woman who habitually wore the headscarf, was found to have been dismissed from a day-care centre in an act of ‘indirect’ discrimination, on the basis of a clause in internal regulations commanding secularism and neutrality, which affected Muslim women in a particularly disadvantageous way.42 In Oulanijain and Kaiss v. Netherlands the Committee was prepared to entertain a claim for indirect discrimination, if it could be made out, in the eligibility criteria for a child benefit scheme which extended to parents of foster children 40 Althammer et al. v. Austria, CCPR/C/78/D/998/2001, 8 August 2003 [10.2]. 41 Prince v. South Africa, CCPR/C/91/D/1474/2006, 31 October 2007 [7.5]. 42 F.A. v. France, CCPR/C/123/D/2662/2015, 16 July 2018 [8.10] [8.13]. See also Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.15] [7.17]; Yaker v. France, CCPR/C/ 123/D/2747/2016, 17 July 2018 [8.15] [8.17] (the criminal prohibition against concealing the face in public areas disproportionately affected the author in each case as a Muslim woman who chose to wear the full face veil).

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only if they were involved in the upbringing of the children (a stipulation that did not apply to natural parents of children). The authors were resident in the Netherlands but could not be involved in the upbringing of their foster children, who continued to live in Morocco after their father (a relative of one of the authors) died. The authors assumed certain responsibilities for them in accordance with Moroccan tradition.43 The Committee accepted that there are objective differences between one’s own children and foster children which justify different treatment. In other words, it recognised that the distinction was objective, and so it only needed to focus on reasonableness. It considered it to be compatible with the Covenant, and not unreasonable, to preclude benefits for foster children who were not living with the foster parent. The authors also failed to substantiate their claim that the requirement operated in a discriminatory way by affecting migrant workers more than Dutch nationals, and the Committee repeated from its earlier case law to the effect that ‘the scope of article 26 . . . does not extend to differences resulting from the equal application of common rules in the allocation of benefits’.44 The Committee has been criticised by some commentators45 for a certain failure to focus on the disproportionate indirect impact of Netherlands benefits legislation in cases such as A.P.L. v d.M. v. Netherlands where a woman received a lesser benefit than a man would have in the same circumstances,46 and for ignoring the claim for indirect discrimination when it was clearly made, exemplified by Cavalcanti v. Netherlands.47 Improvement on this is reflected in Derksen v. Netherlands when the Committee found a violation of Article 26 in the operation of legislation intended to abolish historic discrimination which did not allow certain child benefit payments if the parents were unmarried. Under the transitional provisions of remedial legislation, benefits continued to be denied in the case of children born to unmarried parents before 1 July 1996, but were granted for similarly situated children born after that date. The Committee considered this was not based on reasonable grounds, especially given that the authorities were well aware of the discriminatory effect of the early legislation and could have easily terminated the discrimination for children born out of wedlock before that date by extending the application of the new law to them.48

43 Oulajin and Kaiss v. Netherlands, CCPR/C/46/D/406/1990 and 426/1990, 23 October 1992 [7.4]. 44 Ibid. [7.5]. See also P.P.C. v. Netherlands, Communication No. 212/1986, CCPR/C/OP/2 at 70, 24 March 1988 [6.2]. 45 Anthony Lester and Sarah Joseph, ‘Obligations of Non Discrimination’, in David Harris and Sarah Joseph (eds), The International Covenant on Civil and Political Rights (Clarendon Press, 1995), p. 576; Joseph and Castan, The International Covenant on Civil and Political Rights, pp. 778 9. 46 A.P.L. v d.M. v. Netherlands, CCPR/C/48/D/478/1991, 26 July 1993. 47 Araujo Jongen v. Netherlands, CCPR/C/49/D/418/1990, 22 October 1993. 48 Derksen v. Netherlands, CCPR/C/80/D/976/2001, 1 April 2004 [9.3].

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The need for differentiation to avoid discrimination was particularly clear in Q v. Denmark. The author was granted humanitarian protection shortly after his arrival in Denmark. He applied for Danish naturalisation but was illiterate in Danish and in Arabic, his mother tongue. He applied for exemption from the requirement for language proficiency, and even though he submitted medical reports indicating that he suffered from severe psychosis, his application was refused. The Committee found a violation of his right to equality before the law and equal protection of the law in the State’s failure to demonstrate reasonable and objective grounds for refusing to accept his mental disability as a basis for a language exception, and for requiring language proficiency despite his learning disabilities.49 Special Measures, Affirmative Action and Reasonable Accommodation A number of terms are used interchangeably equating ‘special measures’ in the corrective, compensatory and promotional sense, with the terms ‘affirmative action, ‘positive action’, ‘positive measures’, ‘reverse discrimination’ and ‘positive discrimination’, as the CEDAW Committee has observed.50 A distinction is sometimes drawn between ‘reasonable accommodation’ and ‘affirmative action’ in that reasonable accommodation benefits an individual, while affirmative action more often represents a policy of preferential treatment to groups of individuals with a shared characteristic. Both are based in the principle that treating everyone in exactly the same manner fails to achieve substantive equality. They are both supported by the obligation in Article 2 ‘to ensure to all individuals’ the rights recognised in the Covenant.51 The rationale for affirmative action, as explained in General Comment 18, is that the principle of equality sometimes requires States to take measures to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. The purpose is to achieve substantive equality by correcting the conditions affecting a certain part of the population which prevent or impair their enjoyment of human rights. The State should take specific action to correct those conditions. Affirmative action may address historic, national or cultural prejudice, and may involve granting preferential treatment for a time in specific matters. For as long as it is needed to correct discrimination, it constitutes legitimate differentiation.52 In Waldman v. Canada the Committee was not persuaded by State arguments that preferential funding for Catholic schools was to protect minority Catholic 49 Q v. Denmark, CCPR/C/113/D/2001/2010, 1 April 2015 [7.5]. 50 Committee on the Elimination of Discrimination Against Women, General Recommendation No. 25, on Article 4, Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination Against Women, on Temporary Special Measures [17]. 51 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights. 52 GC 18 [10].

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culture for historic reasons, which had formal recognition in the Constitution of 1867.53 It did, however, readily accept in Stalla Costa v. Uruguay as a situation still requiring redress the historic disadvantage of those dismissed on ideological, political or trade union grounds under former military rule. Preference shown in public service appointments to them could not be regarded as incompatible with the ‘general terms of equality’ in Article 25(c), it could not be regarded as an invidious distinction under Article 2(1), or as prohibited discrimination under Article 26.54 Some of the Committee’s General Comments on individual Covenant provisions place particular stress on positive measures. On Article 3 (The Equal Right of Men and Women to the Enjoyment of Covenant Rights) General Comment 28 commented that ‘[t]he State party must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women’.55 An example would be the gender requirement for access to a nonjustice seat on the High Council of Justice supported by the Committee in Jacobs v. Belgium to promote a balance between men and women, and to increase representation and participation of women in various advisory bodies in view of the very low numbers found there.56 On minorities, the Committee commented to similar effect in General Comment 23 that ‘positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice [sic] their religion, in community with other members of the group’.57 In relation to race, States may take special measures under ICERD ‘for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection’, and when the circumstances warrant they must take special and concrete measures.58 The CESCR described the place of special measures in its General Comment 20 on non-discrimination: In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality

53 Waldman v. Canada, CCPR/C/67/D/694/1996, 5 November 1999 [10.5] [10.6]. 54 Stalla Costa v. Uruguay, Communication No. 198/1985, Supp. No. 40 (A/42/40) at 170, 9 July 1987 [10]. 55 CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10 (GC 28) [3]. See also CEDAW Art. 4. 56 Jacobs v. Belgium, CCPR/C/81/D/943/2000, 7 July 2004 [9.4]. 57 CCPR General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/ Rev.1/Add.5 (GC 23) [6.2]. 58 ICERD Arts 1(4) and 2(2) (emphasis added). See also the CERC General Comment No. 2[1] on Special Measures and the distinction between this and the general obligation on States to secure ICERD rights.

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a commentary on the iccpr has been sustainably achieved. Such positive measures may exceptionally, however, need to be of a permanent nature, such as interpretation services for linguistic minorities and reasonable accommodation of persons with sensory impairments in accessing healthcare facilities.59

The CESCR’s General Comment 20 addressed reasonable accommodation only in relation to disability, recommending that the denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability.60 It thereby expanded on what it had already said in its General Comment 5, when it stated that the denial of reasonable accommodation to persons with disabilities constitutes a form of ‘disability-based discrimination’ if it has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights.61 The Human Rights Committee has shown some consistency with that approach, for example, in Hamilton v. Jamaica when finding a violation of Article 10(1) in the failure to put in place measures to accommodate the author as a prisoner paralysed in both legs, unable to remove his slop bucket from the cell himself (though without making an Article 26 finding).62 The question of reasonable accommodation in the context of freedom of religion has already been discussed in the context of Article 18.63 Discriminatory Purpose or Intent The fact that measures may be directed at particular activities or a selected group does not itself give them a discriminatory purpose. The Committee accepted in Wackenheim v. France that the differentiation in a ban on throwing dwarves, and not a wider category, was because they were the only ones capable of being thrown. It was based on an objective reason and therefore not discriminatory in its purpose. (It was also necessary in order to protect public order, which brought into play considerations of human dignity.64) The mere fact that there may be other activities liable to be banned was not in itself sufficient to confer a discriminatory character on such a ban, where it was based on objective and reasonable criteria and was not discriminatory in purpose.65 The Committee was divided on this issue in Diergaardt v. Namibia. The majority found a violation of Article 26, giving particular weight to an official 59 CESCR General Comment No. 20: Non discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009 (CESCR GC 20) [9]. 60 CESCR GC 20 [28]. 61 CESCR General Comment No. 5: Persons with Disabilities, 9 December 1994, E/1995/22 [15]. For further discussion, see Anna Lawson, ‘Disability Equality, Reasonable Accommodation and the Avoidance of Ill treatment in Places of Detention: the Role of Supranational Monitoring and Inspection Bodies’, (2012) 16(6) IJHR, p. 845. 62 Hamilton v. Jamaica, CCPR/C/66/D/616/1995, 28 July 1999 [3.1], [8.2]. 63 See chapter on Article 18: Freedom of Thought, Conscience and Religion. 64 Wackenheim v. France, CCPR/C/75/D/854/1999, 15 July 2002 [7.4]. 65 Ibid. [7.5].

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directive instructing civil servants not to reply to the authors’ written or oral communications in the Afrikaans language, even when they were perfectly capable of doing so, when it was alleged that this was intentionally targeted against the use of Afrikaans when dealing with public authorities.66 The ban on speaking Afrikaans during telephone conversations, when it is within the power of an official to help a member of the public by doing so, demands particular explanation by the State, and none was given. A number of dissenting members considered this was not a violation because it constituted general action of the State in declaring English as the official language and not allowing the use of other languages. The directive only referred to Afrikaans because it was at one time, until replaced by English, the official language. In their view all languages other than English were treated on the same footing and were not allowed to be used for official purposes.67 The absence of intent to discriminate does not avoid violation if its effects are discriminatory. In Broeks v. Netherlands the Committee made its finding of violation of Article 26 even though it observed that the State had not intended to discriminate against women.68 A politically motivated differentiation is unlikely to be compatible with Article 26, according to the Committee in Simunek et al. v. Czech Republic, when also noting that an act which is not politically motivated may still be a contravention if its effects are discriminatory.69

I S SU E S O F P RO O F I N D I S C RI M IN AT I O N C A S E S Situations in Question Must be Equivalent Those claiming discrimination on the basis of differential treatment must demonstrate that they are treated differently from others in similar situations, and that the categories of those compared are not relevantly distinguishable. In M.J.G. v. Netherlands the author’s claim based on his inability to appeal against a summons while performing military service, in the same way as a civilian, was inadmissible on this basis. It would have been different if the appeal procedures had not been applied equally to all citizens serving in the Netherlands armed forces.70 An inadmissibility finding was similarly made in Smídek v. Czech Republic as it was based only on the requirement that the applicant for a judicial position undergo a personality test when two other candidates did not have to. His situation and theirs were not similar because, unlike him, they had previously 66 J.G.A. Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.10]. 67 Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000, Individual Opinion of P. N. Bhagwati, Lord Colville and Maxwell Yalden (dissenting). See also Individual Opinions of Abdalfattah Amor and Nisuke Ando (both dissenting). 68 Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 196, 9 April 1987 [16]. 69 Simunek et al. v. Czech Republic, CCPR/C/54/D/516/1992, 19 July 1995 [11.7]. 70 M.J.G. v. Netherlands, Communication No. 267/1987, CCPR/C/OP/2 at 74, 24 March 1988 [3.2].

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served as judges. In relation to the same requirement for the position as prosecutor, although the author had previously passed the necessary tests for serving as a prosecutor, and actually held that post, he was also unable to show that applicants in the same position as himself were exempted from the personality test.71 In Van Oord v. Netherlands the authors claimed violation of Article 26 in distinctions in pension tax assessment between Dutch citizens resident in the United States and Dutch citizens resident in other overseas countries. The claim was inadmissible because the criteria used in determining the authors’ pension entitlements were equally applied to all former Dutch citizens then living in the United States. The categories of persons being compared were distinguishable, and the privileges at issue responded to separately negotiated bilateral treaties which necessarily reflected agreements based on reciprocity, such that the facts did not raise an issue under Article 26.72 The claim in Blom v. Sweden was admissible, but the Committee found there was no Article 26 violation in the refusal to grant an education allowance to a pupil in a private school of a type available to pupils of schools in the public sector. The State cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two types of establishment, when the private system is not subject to State supervision.73 The situations compared in Abad Castell-Ruiz et al. v. Spain were also not equivalent, but in that instance the element of choice available to the authors was an additional consideration. The authors worked as public sector medical doctors but also ran private medical practices. Public sector staff were entitled to a ‘special allowance’ in addition to their basic salary, but if the allowance exceeded 45 per cent of that salary they were required to provide their services exclusively. In the case of the authors, the special allowance was less than 45 per cent of their basic salary, so they were not under an exclusive contract. The special allowance for them was less than for those under an exclusive contract. Because both categories of doctor had the same working hours and the same responsibilities, the authors alleged discrimination. Relying on domestic findings that the two categories were ‘not exactly equivalent’ the Committee determined the facts did not reveal that the authors were in a situation de facto similar to that of doctors under exclusive contract such as to justify their argument that they were entitled to equal remuneration. Admission to the exclusive regime or that to which the authors belonged was a matter of individual choice, which could be changed at any time.74 Pauger v. Austria provides a clear case of differentiation in comparable cases. Pension legislation granted preferential treatment to widows by allowing them 71 Smídek v. Czech Republic, CCPR/C/87/D/1062/2002, 25 July 2006 [11.4] [11.5]. 72 Van Oord v. Netherlands, CCPR/C/60/D/658/1995, 4 November 1994 [8.5] (Van Oord distin guished in Karakurt v. Austria, CCPR/C/74/D/965/2000, 4 April 2002 (2002) [8.4]). 73 Blom v. Sweden, Communication No. 191/1985, CCPR/C/OP/2 at 216, 4 April 1988 [10.3]. 74 Castell Ruiz et al. v. Spain, CCPR/C/86/D/1164/2003, 17 March 2006 [7.2] [7.3].

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full pension rights regardless of their income, whereas the equivalent entitlement of widowers depended on them having no other form of income. The differentiation was not based on reasonable or objective criteria because Austrian family law imposed equal rights and duties on both spouses with regard to their income and mutual maintenance, but maintained this distinction in its pension legislation. The effect was that men and women in identical social circumstances were treated differently simply on the basis of gender.75 Chelliah Tiyagarajah v. Sri Lanka demonstrates how failure to provide information on relevant comparable cases, in order to demonstrate unequal treatment, will render a claim inadmissible.76 Relevant Characteristic In any discrimination claim the impugned distinction must be based on a relevant characteristic. In Gallego v. Spain the author relied on the different criteria used in bilateral treaties with Spain to assert a violation of Article 26 in the fact that those who had contributed to the Spanish social security system for the same time and in the same amount received different pension entitlements depending on whether they emigrated to Switzerland or to Germany (with some factual similarity to Van Oord v. Netherlands already mentioned). In concluding that the facts did not raise any issue under Article 26, the Committee pointed out that the author had not shown how this distinction was based on a relevant characteristic in Article 26. The less advantageous position of the author had its roots in the fact that the bilateral treaties negotiated by Spain were not identical, and the mere fact that different treaties on the same topic with different countries reached at different times differed did not amount, as such, to a violation. Additional elements would have to be demonstrated, such as arbitrariness.77 It was not clear precisely on the basis of what attribute the medical practitioners in Abad Castell-Ruiz et al. v. Spain asserted discrimination, though, as already noted, the Committee based its finding principally on want of proof they were treated differently from others in similar situations. The Author Must be in the Relevant Class Success of any claim also depends on belonging within the relevant category. In B.d.B. et al. v. Netherlands the authors were owners of a physiotherapy practice 75 Pauger v. Austria, CCPR/C/44/D/415/1990 at 122, 26 March 1992 [7.4], cf. Hoofdman v. Netherlands, CCPR/C/64/D/602/1994, 25 November 1998 [11.4], concerning denial of a widower’s pension on the basis of marital status (because the couple did not marry but cohabited) followed Danning reasoning based on the decision by cohabiting couples not to enter into a given legal status by marriage, with corresponding benefits, duties and responsibilities. 76 See, e.g., Tiyagarajah v. Sri Lanka, CCPR/C/98/D/1523/2006, 19 March 2010 [5.3]. 77 Díaz v. Spain, CCPR/C/82/D/988/2001, 3 November 2004 [7.3].

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who claimed discrimination in the way in which social security contributions payable by them were regulated under Netherlands social security legislation: part-time physiotherapists were to be deemed employees and their employers were liable for social security contributions. The claim was inadmissible because it did not assert that their different treatment was attributable to their belonging to any identifiably distinct category which could have exposed them to discrimination on account of any relevant ground in Article 26.78 The Committee accepted as admissible the claim in Brinkhof v. Netherlands which challenged the system privileging Jehovah’s Witnesses who, unlike other conscientious objectors, were not required to do military service or alternative service. The State explained that membership of Jehovah’s Witnesses constituted strong evidence that the objections to military service were based on genuine religious convictions, and that different treatment was based on reasonable and objective criteria. The Committee disagreed, because there was no legal possibility for other conscientious objectors to be exempted from both military and alternative service. They had to do substitute service and if they refused to do so for reasons of conscience they would be sanctioned. In the event the author failed to demonstrate that his pacifist convictions were incompatible with substitute service (i.e., he did not establish his belonging in the relevant class), or that the privileged treatment of Jehovah’s Witnesses adversely affected his rights as a conscientious objector.79 Status of Victim As the Committee explained in Aumeeruddy Cziffra et al. v. Mauritius, a person can only claim to be a victim in the sense of Article 1 of OP1 if ‘actually affected’. No individual can in the abstract, by way of an actio popularis, challenge a law or practice for being contrary to the Covenant. If the law or practice has not already been concretely applied to the detriment of the individual, it must be applicable in such a way that their risk of being affected is more than a theoretical possibility.80 J.A.M.B-R. v. Netherlands concerned allegations that social security law was discriminatory, but the author never applied for benefits under the law in the relevant period and could not claim to be a victim, even if the law were itself discriminatory.81 The authors in Riley et al. v. Canada were also not sufficiently

78 B.d.B. et al. v. Netherlands, Communication No. 273/1989, Supp. No. 40 (A/44/40) at 286 (1989), 30 March 1989 [6.7]. 79 Brinkhof v. Netherlands, CCPR/C/48/D/402/1990, 27 July 1993 [9.2] [9.3]. 80 Aumeeruddy Cziffra et al. v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2]. For a recent illustration of failure in victim status on the facts, see K.M. v. Belarus, CCPR/C/122/D/2199/2012, 6 April 2018 [9.5]. 81 J.A.M.B R. v. Netherlands, CCPR/C/50/D/477/1991 (1994), 7 April 1994 [5.5]. See also M.S.P B. v. Netherlands, CCPR/C/123/D/2673/2015, 25 July 2018 [7.5] (a distinction regarding entitlement to the general child benefit on the basis of alien residence status failed because the

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affected by a distinction to be victims when they objected that Khalsa Sikh officers of the Mounted Police were authorised to wear religious symbols as part of their official uniform, and were allowed to substitute turbans for the traditional widebrimmed ‘Mountie’ stetson and forage cap. The claim was simply that special status was allowed to Khalsa Sikhs but denied to other religious groups, and the authors’ only interest was that they were retired from the force and were members of an organisation whose goal was to maintain tradition within the Mounties.82 This is on contrast to the situation in Waldman v. Canada in which the funding scheme for Roman Catholic schools within the public education system, not available for other religious schools, sufficiently affected the author who sent his children to a private religious school not because he wanted private education for his children, but because the publicly funded system made no provision for those of Jewish faith.83 Against the same factual background the claim in Tadman et al. v. Canada was inadmissible because the authors had not sufficiently substantiated how the public funding given to the Roman Catholic schools caused them any disadvantage or affected them adversely. They did not themselves seek publicly funded religious schools for their children, but merely the removal of public funding from Roman Catholic schools.84 Onus of Proof Although there is no strict rule regarding the allocation of the burden of proof in OP1 petitions, the Committee does tend to accept the factual assertions made within allegations in the absence of information or cooperation from the respondent State. The information, however, must provide a relevant comparison. In Teesdale v. Trinidad and Tobago the author complained that the exercise of discretion by the authorities was discriminatory when commuting his death sentence to seventy-five years’ imprisonment with hard labour, with no eligibility for parole. He pointed out that fifty-three other prisoners who had been on death row for murder for more than five years had their sentences commuted to life imprisonment in the same year, which would see their release after twelve to fifteen years with the benefit of parole. Even though the State provided no information with regard to the substance of the author’s claims, the Committee still considered itself unable to make a finding in his favour. The outcome may have been different if he had provided information on the number or nature of cases where death sentences were commuted to imprisonment with hard labour for a fixed term.85 This led David Kretzmer and Ivan Shearer to stress in their (partly dissenting) Individual Opinion that once the author has argued differential

82 83 84 85

author did not demonstrate that alternative financial assistance caused material comparative disadvantage). Riley et al. v. Canada, CCPR/C/74/D/1048/2002, 21 March 2002 [4.2]. Waldman v. Canada, CCPR/C/67/D/694/1996, 3 November 1999 [10.6]. Tadman et al. v. Canada, CCPR/C/67/D/816/1998, 4 November 1999 [6.2]. Teesdale v. Trinidad and Tobago, CCPR/C/74/D/677/1996, 23 October 1998 [9.8].

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treatment from others in a like situation it was incumbent on the State to show the difference in treatment was on reasonable and objective criteria, and a failure to provide such an explanation satisfactorily should result in a finding under Article 26. A seemingly high standard of proof was required by the Committee in Jazairi v. Canada to support an allegation that the application by an associate professor for promotion to full tenure was declined because of his political opinion. It was inadmissible because he failed to show that the factual assessment of the domestic court was flawed, when finding that there was nothing on the record to suggest his political beliefs were at issue. It serves as a useful reminder of how the Committee treats domestic findings of fact: ‘It is not for the Committee to substitute its views for the judgment of the domestic courts on the evaluation of facts and evidence in a case, unless the evaluation is manifestly arbitrary or amounts to a denial of justice. If a particular conclusion of fact is one that is reasonably available to a trier of fact on the basis of the evidence before it, ipso facto a showing of manifest arbitrariness or a denial of justice will not have been made out.’86 The dissenting Committee members in Jazairi were concerned about the implications for the burden of proof in situations where an employee claims to have been discriminated against on grounds prohibited by Article 26. The author must at least substantiate the complaint in some measure, but they considered that it is for the State to disclose all the facts to show not merely negatively, by a mere statement that the different treatment of the author was not due to discrimination on the relevant ground (in that case political opinion), but positively that the author was found, for example, to be unfit for a specified reason, or that the record of their performance did not justify promotion at least at that stage, or for other justifiable reasons.87

G R O UN D S O F D I S C R I M I N AT I O N Not all the Covenant provisions which address non-discrimination adopt the same grounds for prohibiting discrimination.88 Under Articles 2 and 26 they are ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Relevance of the Ground and Subject Matter of Differentiation Some commentators consider that the Committee’s assessment of reasonable and objective criteria may be influenced by the applicable ground of distinction. 86 Jazairi v. Canada, CCPR/C/82/D/958/2000, 26 October 2004 [7.4]. 87 Individual Opinion (dissenting) of Committee members Ms Christine Chanet, Mr Maurice Glèlè Ahanhanzo, Mr Ahmed Tawfik Khalil and Mr Rajsoomer Lallah, Jazairi v. Canada, CCPR/C/82/ D/958/2000, 26 October 2004 [7]. 88 See chapter on Article 2: To ‘Respect and to Ensure’ Covenant Rights, section ‘The Rights to Equality and Non discrimination’.

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Bayefsky, for example, refers to ‘the technique of tailoring the stringency of evaluations of the legitimacy of distinctions to particular grounds’.89 Pobjoy refers to a hierarchy in which the first ‘tier’ consists of the eleven grounds expressly named within Article 26. Differential treatment on any of these grounds is seen to harbour an increased risk of a violation of the prohibition of discrimination and should therefore be subjected to greater judicial scrutiny.90 The importance of the stated grounds of differentiation in Article 26 was underscored in the Committee’s statement in Müller and Engelhard v. Namibia that ‘different treatment based on one of the specific grounds enumerated in article 26 . . . places a heavy burden on the State party to explain the reason for the differentiation’.91 Vandenhole has also observed with reference to particular grounds that ‘differential treatment on grounds of gender and race generally seem to entail a higher threshold of justification’.92 Religion may be said to receive similarly privileged treatment in the light of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Declaration on religion or belief), which treats discrimination on those grounds as ‘an affront to human dignity’.93 A number of instruments offer more detailed protection against discrimination on particular grounds, such as ICERD (racial discrimination), CEDAW (on gender discrimination) and the Declaration on Religion or Belief. However, the operation of Article 26 is unaffected by overlap with such convention-specific coverage. In Broeks, Zwaan-de-Vries and Danning the Committee was faced with the contention by the State that Article 26 could not be invoked in respect of a right which was specifically provided for under Article 9 of the ICESCR (social security, including social insurance). An examination of the travaux on the question whether the scope of Article 26 extended to rights not otherwise guaranteed by the Covenant were inconclusive, but could not alter the conclusion arrived at by the ordinary means of interpretation of each element in its context and in the light of its object and purpose (as required by Article 31 of the Vienna 89 Anne Bayefsky, ‘The Principle of Equality or Non Discrimination in International Law’, (1990) 11 HRLJ, p. 1, at p. 18. Dinah Shelton sought to determine patterns in the distinctions which are permitted and which are invidious, in ‘Prohibited Discrimination in International Human Rights Law’, in Aristotle Constantinides and Nikos Zaiko (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa (Martinus Nijhoff, 2009), p. 261. 90 Jason Pobjoy, ‘Treating Like Alike: the Principle of Non Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection’, (2010) 34(1) Melb. U.L. Rev., p. 181. 91 Müller and Engelhard v. Namibia, CCPR/C/74/D/919/2000, Views, 26 March 2002 [6.7]. See also C v. Australia, CCPR/C/119/D/2216/2012, 28 March 2017, Concurring Opinion of Committee member Sarah Cleveland [8]. 92 Wouter Vandenhole, Non Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Intersentia, 2005), p. 48. 93 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55, Art. 3. See also Arts 2 and 4.

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Convention) that Article 26 prohibits discrimination in law or in practice in any field regulated and protected by public authorities.94 Race/Colour/Ethnic Origin The importance of racial discrimination is reflected in the fact that the first UN treaty on equality and non-discrimination was ICERD.95 ICERD’s definition of ‘racial discrimination’ is broad, and can be applied equally to the Covenant. It importantly includes ‘colour’, which has proved to be a pervasive and pernicious basis of discrimination.96 In addition to the non-discrimination provisions of the Covenant, Article 20(2) requires States to prohibit any advocacy of ‘national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’. The Committee does not make a purist distinction between race and religion, for example, approaching issues affecting the Jewish faith as a matter of religious rather than racial grouping.97 It has accepted that Roma constitute a racial group.98 However, a number of race discrimination claims have been inadmissible through failure to provide sufficient information on comparable cases to demonstrate unequal treatment based on race.99 Among the most common forms of discrimination protected by Article 26 is against those from racial, ethnic or indigenous minorities.100 94 Broeks v. Netherlands, Communication No. 172/1984, CCPR/C/OP/2 at 209 [12.2] [12.3]; Zwaan de Vries v. Netherlands, Communication No. 182/1984, CCPR/C/OP/2 at 209 [12.2] [12.3]; Danning v. Netherlands, Communication No. 180/1984, CCPR/C/OP/2 at 205 [12.2] [12.3]. Cf. Mr Nisuke Ando’s Individual Opinion in Derksen v. Netherlands, CCPR/C/80/D/ 976/2001, 1 April 2004, which argued that the Committee should exercise restraint under Art. 26 in relation to claims concerning rights covered by the ICESCR, because under that Convention rights are not justiciable, they are to be realised only progressively and, in the case of the right to social security (contained in the ICESCR but not the Covenant) it has its own provision on non discriminatory implementation. 95 For the broader coverage of ICERD, see Stephanie Farrior, ‘The Neglected Pillar: the “Teaching Tolerance” Provision of the International Convention on the Elimination of All Forms of Racial Discrimination’, (1999) 5 ILSA J. Int. & Comp. L., p. 291; Michael Banton, International Action Against Racial Discrimination (Clarendon Press, 1996). 96 ICERD Art. 1(1). 97 See, e.g., Waldman v. Canada, CCPR/C/67/D/694/1996, 3 November 1999. 98 Vassilari v. Greece, CCPR/C/95/D/1570/2007, 19 March 2009 [3.2]. 99 E.g., Semey v. Spain, CCPR/C/78/D/986/2001, 30 July 2003 [8.4]; Rajan and Rajan v. New Zealand, CCPR/C/78/D/820/1998, 6 August 2003 [7.4]; Tiyagarajah v. Sri Lanka, CCPR/C/98/ D/1523/2006, 19 March 2010 [5.3]. 100 Discrimination occurs, e.g., against Roma (Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 39; Romania CCPR/C/ROU/CO/5 (2017) 11; Serbia CCPR/C/SRB/CO/3 (2017) 40; Belarus CCPR/C/BLR/CO/5 (2018) 17; Bulgaria CCPR/C/BGR/CO/4 (2018) 13; Lithuania CCPR/C/ LTU/CO/4 (2018) 7); indigenous people (Colombia CCPR/C/COL/CO/7 (2016) 42; Australia CCPR/C/AUS/CO/6 (2017) 39; Cameroon CCPR/C/CMR/CO/5 (2017) 45; Congo CCPR/C/ COD/CO/4 (2017) 49; Honduras CCPR/C/HND/CO/2 (2017) 10; El Salvador CCPR/C/SLV/ CO/7 (2018) 9; Guatemala CCPR/C/GTM/CO/4 (2018) 10; Norway CCPR/C/NOR/CO/7 (2018) 36; Thailand CCPR/C/THA/CO/2 (2017) 43); and other minorities (Azerbaijan

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Ethnicity and gender were the grounds on which Article 26 was found to have been violated in X v. Sri Lanka (the Committee did not address Articles 2(1) or 3) in the official treatment of a 17-year-old Indian Tamil girl (from the most marginalised and impoverished ethnic group in Sri Lanka) after she was abducted and raped by two Sinhalese men. During the investigation of her complaint the police failed to provide any official interpretation or translation from Tamil to Sinhalese while recording her statement; she had to make her statement through an unofficial interpreter translating into Sinhala, even though Tamil is an official language of Sri Lanka; and at the trial of those accused of her rape the judge failed to intervene to prevent her unjustified public humiliation at the hands of defence counsel.101 Strong discriminatory attitudes against those of Serb origin was important background to Vojnović v. Croatia. In proceedings to determine the protected tenancy rights of a Croatian Serb family which fled their apartment (and the country) following death threats, the court refused to admit evidence that other Serbs living in the same apartment building had to flee in the same circumstances, resulting in a finding of violation of Article 14(1), in conjunction with Article 2(1).102 Racial profiling has been a consistent concern of the Committee when reviewing State reports and it has been the subject of OP1 decisions.103 In Lecraft v. Spain the question was whether singling out the author for a police identity check for illegal immigrants at a railway station constituted discrimination, when she was selected solely on the ground of her racial characteristics. For the Committee there was little question that identity checks serve a legitimate purpose, such as public security or crime prevention. But the physical or ethnic characteristics of an individual should not by themselves indicate their possible illegal presence in the country, and checks should not be carried out in such a way as to target only those with those characteristics, because to act otherwise would negatively affect the dignity

CCPR/C/AZE/CO/4 (2016) 44 (Azerbaijanis of Armenian origin); Kuwait CCPR/C/KWT/CO/ 3 (2016) 10 (Bidoon); Morocco CCPR/C/MAR/CO/6 (2016) 49 (the Amazigh); Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 21 (ethnic groups and religious and national mino rities); Dominican Republic CCPR/C/DOM/CO/6 (2017) 9 (Haitian migrants); Italy CCPR/C/ ITA/CO/6 (2017) 12 (Sinti and Camminanti communities); Lao CCPR/C/LAO/CO/1 (2018) 39 (ethnic minorities)). 101 X v. Sri Lanka, CCPR/C/120/D/2256/2013, 27 July 2017 [7.5] [7.6]. 102 Vojnović v. Croatia, CCPR/C/95/D/1510/2006, 30 March 2009 [8.3]. 103 Racial, ethnic and religious profiling has been raised in numerous Concluding Observations, e.g., Moldova CCPR/C/MDA/CO/3 (2016) 11, 12; Australia CCPR/C/AUS/CO/6 (2017) 19; Switzerland CCPR/C/CHE/CO/4 (2017) 22; Belarus CCPR/C/BLR/CO/5 (2018) 17; Hungary CCPR/C/HUN/CO/6 (2018) 17; Norway CCPR/C/NOR/CO/7 (2018) 10. See generally, Sandra Fredman, ‘Combating Racism with Human Rights: the Right to Equality’, in Sandra Fredman (ed.), Discrimination and Human Rights: the Case of Racism (Oxford University Press, 2001), ch. 2.

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of those concerned, it would contribute to the spread of xenophobic attitudes, and run counter to an effective policy aimed at combating racial discrimination. In this particular instance, the police officer conducted the identity check on the criterion of skin colour, which the domestic court supported. The author’s unrefuted claim was that no one else in her immediate vicinity was checked, and the police officer who stopped and questioned her referred to her physical features in order to explain why she, and no one else around, was asked to show her identity papers. Since these factors were decisive in her being suspected of unlawful conduct, the criteria of reasonableness and objectivity were not met. She was offered no satisfaction, even, for example, by way of apology.104 In its Concluding Observations the Committee has expressed concern about the use of racial and ethnic profiling,105 recommending the State to take all measures necessary to effectively combat and eliminate racial and ethnic profiling by law enforcement officers, among other things by clearly defining and prohibiting racial or ethnic profiling by law.106 As with discriminatory violence inflicted on other grounds, the Committee’s response to issues of racially and religiously motivated hate crimes involving violence (and in some cases death) has been to recommend systematical investigation, prosecution and punishment of perpetrators, and compensation for victims, as well as softer measures such as public information campaigns to promote tolerance and respect for diversity.107 Sex, Sexual Orientation, Gender Identity, Transgender Status

The Equal Right of Men and Women to the Enjoyment of Covenant Rights The reader is referred to the chapter on Article 3: The Equal Right of Men and Women to the Enjoyment of Covenant Rights, above, for further discussion concerning discrimination falling under Article 3, including where it coincides with Articles 2(1) and 26.

104 Lecraft v. Spain, Communication No. 1493/2006, A/64/40, vol. II (2009) Annex VII.FF, 295, 27 July 2009 [7.2], [7.4] (violation of Art. 26, read in conjunction with Art. 2(3)). 105 E.g., UK CCPR/C/GBR/CO/6 (2008) 29; USA CCPR/C/USA/CO/4 (2014) 7; Hungary CCPR/ C/HUN/CO/5 (2010) 18; Austria CCPR/C/AUT/CO/5 (2015) 19, 20; Croatia CCPR/C/HRV/ CO/3 (2015) 7; France CCPR/C/FRA/CO/5 (2015) 15; Spain CCPR/C/ESP/CO/6 (2015) 8; New Zealand CCPR/C/NZL/CO/6 (2016) 23. 106 E.g., Russian Federation CCPR/C/RUS/CO/7 (2015) 9. See also USA CCPR/C/USA/CO/4 (2014) 7 (surveillance by law enforcement officials targeting certain ethnic minorities and Muslims). 107 E.g., Croatia CCPR/C/HRV/CO/2 (2009) 5; Dominican Republic CCPR/C/DOM/CO/5 (2012) 7; South Africa CCPR/C/ZAF/CO/1 (2016) 15. For non violent situations, see, e.g., Germany CCPR/C/DEU/CO/6 (2012) 17.

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Discrimination on Grounds of Sex and Marital Status in Social Security Legislation A number of the social and welfare benefits cases suggest that the Committee is less likely to make a finding of direct or indirect discrimination where the claim relates to social security legislation, even where the ground of distinction is as fundamental as gender. The Committee’s decisions in this area are marked by some inconsistency, but have nevertheless contributed significantly to the interpretation of Article 26 as an autonomous right. The gender-based discrimination cases are considered here alongside those involving marital status distinctions, since the issues raised are similar and share the same pattern of development. Having previously settled that the ‘breadwinner’ precondition was not reasonable in Broeks and Zwaan-de-Vries, the situation at issue in Araujo-Jongen v. Netherlands concerned remedial legislation to correct that mischief. Women who had been ineligible in the past to claim benefits because of the breadwinner precondition could claim these benefits retroactively, provided they were unemployed on the date of application. By this stage the applicant was employed and therefore ineligible, and she claimed the amended law still indirectly discriminated against her. The Committee found there was no violation of Article 26 because the requirement to be unemployed at the time of application was reasonable and objective, in view of the purposes of the legislation, namely, to provide assistance to persons who are unemployed.108 The author in J.A.M.B-R. v. Netherlands was unemployed when she applied for benefits (so met the Araujo-Jongen hurdle). Her claim related to the extent of the backwards reach of the remedial legislation (benefits were granted retroactively to men and women alike as from a certain date, and she claimed benefits for the period before then). Her communication was inadmissible because she failed to make out even the unequal application of the retroactive provisions, in particular, that men who belatedly applied (as she did) were granted wider retroactive benefits, as from the date on which they became eligible for them, whereas she, as a woman, was denied those benefits.109 Bertil Wennergren (dissenting) felt this case raised the same issues as Zwaan-de Vries, namely, whether during the relevant period she was denied social security benefits on an equal footing with men, and should have resulted in a finding of violation of Article 26.110 Danning has enjoyed sustained support in the jurisprudence of the Committee, in such cases as Hoofdman v. Netherlands111 and M.T. Sprenger v. Netherlands,112 where distinctions between married and unmarried couples were found to be 108 Araujo Jongen v. Netherlands, CCPR/C/49/D/418/1990 (22 October 1993) [7.4]. 109 J.A.M.B R. v. Netherlands, CCPR/C/50/D/477/1991, 7 April 1994 [5.4] [5.5]. 110 Individual Opinion by Mr Bertil Wennergren, J.A.M.B R. v. Netherlands, CCPR/C/50/D/477/ 1991, 7 April 1994 [6]. See also A.P.L. v d.M. v. Netherlands, CCPR/C/48/D/478/1991, 26 July 1993. 111 Hoofdman v. Netherlands, CCPR/C/64/D/602/1994, 25 November 1998. 112 Sprenger v. Netherlands, CCPR/C/44/D/395/1990, 31 March 1992.

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based on reasonable and objective criteria, in the personal decision whether or not to assume certain benefits, duties and responsibilities. Hoofdman suggests a certain reluctance by the Committee to move from that approach even when the justifications lag behind social reality. The author unsuccessfully claimed that the denial of a widower’s pension on the death of his partner with whom he cohabited discriminated under Article 26 on the basis of his marital status (that he was unmarried). The State relied on the fact that married and unmarried couples were still subject to different sets of laws and regulations. In finding there had been no violation the Committee did little more than recite its approach in Danning.113 While Elizabeth Evatt concurred in the finding she wanted to emphasise in her Individual Opinion that the State had accepted that cohabitees were to be considered as a family unit for some purposes. This factor needed to be taken into account in examining whether the grounds put forward for maintaining the distinction between married couples and cohabitees were reasonable and objective in regard to the benefit in question. She did not find the usual Danning formulation (based on the legal consequences of marriage) either convincing or relevant to the granting of the benefit in this case which was designed to provide temporary alleviation following the loss of a partner by death, adding ‘[f]or distinctions between different family groups to be regarded as reasonable and objective, they should be coherent and have regard to social reality’.114 The author in Sprenger was not entitled to be a co-insured person under her partner’s health insurance, since this was only available to spouses (it was not enough that they had registered their relationship by notarial contract). Other social security legislation enacted in the Netherlands at the time already recognised equality between marriages and other formalised relationships. Relying on Danning, the State pointed out that differences remained between those in her position and those who were married, including in the area of maintenance obligations. There had been no decision to abolish the distinction between such relationships, and the State had introduced equal treatment only in certain specific situations and on certain conditions. In the light of this the Committee found the differential treatment to be based on reasonable and objective grounds.115 Nisuke Ando, Kurt Herndl and Birame Ndiaye, in a Concurring Opinion, suggested that for the purposes of Article 26 implementation a demarcation was appropriate between substantive Covenant rights (requiring immediate implementation without discrimination), and economic and social rights for which States may need time to achieve progress in implementation.116 113 Hoofdman v. Netherlands, CCPR/C/64/D/602/1994, 25 November 1998 [11.4]. 114 Individual Opinion by Ms. Elizabeth Evatt (concurring), Hoofdman v. Netherlands, CCPR/C/ 64/D/602/1994, 25 November 1998. 115 Sprenger v. Netherlands, CCPR/C/44/D/395/1990 (1992), 31 March 1992 [7.4] [7.5]. 116 Individual Opinion of Messrs Nisuke Ando, Kurt Herndl and Birame Ndiaye. For similar views, see also Individual Opinion of Committee member, Mr Nisuke Ando in Derksen v. Netherlands, CCPR/C/80/D/976/2001, 1 April 2004.

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Other forms of differentiation in social security benefits have similarly led to findings of no violation. For example, differentiation was found to be neither unreasonable or arbitrary in Neefs v. Netherlands when, as a result of sharing a household with his mother, the author received a lower level of social security benefit than if he had shared it with a non-relative,117 and in Snijders v. Netherlands when a state-run medical insurance scheme adopted a user-pays approach to make it affordable, requiring those in residential care (such as the authors) to make personal contributions which were not payable by others. The authors in Snijders also claimed violation of Article 26 in a distinction between single people and those who were either married or cohabiting which resulted in single people having to pay an income-related contribution towards the costs of hospitalisation, whereas those who were married or cohabiting only paid a minimal non-income-related contribution if the partner was not hospitalised. The Committee found this distinction to be objective and reasonable, based upon the presumption, with a factual basis, that married or cohabitating partners leave behind a partner who continues to live in what was their common household and therefore does not save the same amount of money as a single person in residential care. The Committee was undeterred by the authors’ argument that there might be alternative (better targeted) ways of funding the scheme.118 These cases are in contrast to the Committee’s finding of violation in Vos v. Netherlands, concerning benefits payable under an occupational pension scheme, in which a lower pension was payable to the author as a married male former civil servant, compared with that payable to a married female former civil servant whose pension accrued at the same date.119

Discrimination on Grounds of Sex in Other Contexts In a comparatively early case, a number of Mauritian women in AumeeruddyCziffra and 19 other Mauritian women v. Mauritius successfully complained that newly introduced immigration legislation violated Articles 2, 3 and 26 in conjunction with Article 23(1) because it required alien husbands of Mauritian women, but not alien wives of Mauritian men, to apply for a residence permit, and this could be refused or (if granted) removed at any time by the Minister of the Interior. The protective role of certain Covenant principles played an important role in the Committee’s approach. The principle of equal treatment of the sexes applied by virtue of Articles 2(1), 3 and 26; Article 26 was also relevant because it refers particularly to the ‘equal protection of the law’. Where the Covenant 117 Neefs v. Netherlands, CCPR/C/51/D/425/1990, 15 July 1994 [7.3] [7.4]. 118 Snijders et al. v. Netherlands, CCPR/C/63/D/651/1995, 27 July 1998 [8.3] [8.4]. 119 Vos v. Netherlands, CCPR/C/66/D/786/1997, 29 July 1999 [7.6]. See also Jongenburger Veerman v. Netherlands, CCPR/C/85/D/1238/2004, 1 November 2005 [7.2] (a distinction made in the pension provisions related to different categories of civil servants, and was not based on any of the relevant characteristics enumerated in Art. 26).

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requires a substantial protection, as in Article 23, it follows from those provisions that such protection must be equal, that is to say not discriminatory, for example on the basis of sex. Also in that line of argument the Covenant must lead to the result that the protection of a family cannot vary with the sex of the one or the other spouse. Since the legislation only subjected foreign spouses of Mauritian women to those restrictions, but not foreign spouses of Mauritian men, it was discriminatory with respect to Mauritian women.120 This reasoning is, in principle, also important to other Covenant provisions in which protective measures are mandated, namely, Articles 6(1), 17(2) and 24(1). Lovelace v. Canada (decided some months after the Mauritian women case) concerned a distinction in legislation which meant that an Indian woman who married a non-Indian man lost her Indian status, and was unable to return to the Tobique Reservation to live with her parents after her marriage was dissolved. It found a violation of Article 27, construing that provision in the light of Articles 12, 17 and 23, and also Articles 2, 3 and 26. The Individual Opinion of Mr Nejib Bouziri is noteworthy because he considered that not only Article 27 but also Articles 2(1), 3, 23 and 26 were violated by virtue of the discriminatory provisions of the legislation, particularly as between men and women.121 The Committee needed to provide little supportive reasoning for its findings of violation of Articles 3, 14(1) and 26 in Ato del Avellanal v. Peru when only the husband was entitled to represent matrimonial property, that is, the wife was not equal to her husband for purposes of suing in court, even though she was the owner of the property in question and in that capacity issued proceedings for the non-payment of rent.122 Long-standing tradition did not suffice to justify differential treatment based on gender in Müller and Engelhard v. Namibia in the case of the Aliens Act which allowed foreign women to assume the surname of their Namibian husband automatically on marriage, while foreign men such as the author had to endure lengthy procedures on application to adopt the surname of a Namibian wife. Mr Müller was a jewellery-maker who wished to adopt his wife’s surname ‘Engelhard’ for a number of reasons. It was more distinctive, which was important because his wife’s jewellery business was established under a name that included her surname, and it had substantial reputation and following in that name. Separate use of the couple’s surnames would confuse customers into believing he was an employee. Also, their daughter was registered with the surname Engelhard, and in her 120 Aumeeruddy Cziffra et al. v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(ii)2 4] (violation of Arts 2(1), 3 and 26 in conjunction with the right of the three married co authors under Art. 23(1)). 121 Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166, 30 July 1981 [17] [18]. 122 del Avellanal v. Peru, Communication No. 202/1986, Supp. No. 40 (A/44/40) at 196, 28 October 1988 [10.1] [10.2].

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interests the same name for both parents would avoid the suggestion that he were not her father. The State argued that the purpose of the Aliens Act was to fulfil legitimate social and legal aims, in particular, to create legal security, reflecting a long-standing tradition for women in Namibia to assume their husbands’ surname. The Committee failed to see why a sex-based approach served the purpose of creating legal security, since it was possible to register either the wife’s or husband’s surname. It commented (as noted earlier) that different treatment based on one of the specific grounds enumerated in Article 26(2) ‘places a heavy burden on the State party to explain the reason for the differentiation’.123 The stricter and much more cumbersome conditions for choosing the wife’s surname could not be judged to be reasonable.124

Sexual Orientation, Gender Identity, Transgender Status The development of the Committee’s position on sexual orientation as a prohibited ground of discrimination was intitially faltering.125 The challenge to the criminalisation of certain same-sex activity in Toonen v. Australia resulted in landmark findings of violation of Article 17 in conjunction with Article 2(1), but notably not a substantive Article 26 finding. The Committee did, however, confirm (on request from Australia) that the reference to ‘sex’ is to be taken as including sexual orientation in both Articles 2(1) and 26. The Commonwealth of Australia’s concession in Toonen that the Tasmanian criminal law amounted to ‘arbitrary interference with . . . privacy’ and ‘cannot be justified’ on policy grounds may have led the Committee to prefer this less controversial form of analysis at that stage.126 Tasmania was the only constituent state not to have repealed its laws criminalising such matters. When the Committee later found a violation of Article 26 in Young v. Australia because the author’s same-sex relationship did not qualify him as a war veteran’s dependant, it did so on the basis of the author’s ‘sex or sexual orientation’. It recalled its guidance in Toonen in terms that the prohibition against discrimination 123 Müller and Engelhard v. Namibia, CCPR/C/74/D/919/2000, Views, 26 March 2002 [6.7]. On the basis of this finding the Committee did not consider it necessary to pronounce on the allegations under Arts 17 and 23. 124 Ibid. [6.8]. 125 See generally, Dominic McGoldrick, ‘The Development and Status of Sexual Orientation Discrimination under International Human Rights Law’, (2016) 16 HRLR, p. 613. Elena Abrusci charts a path of convergence between regional courts and the Committee, but warns of some threat of future fragmentation especially between the European and the Inter American Court of Human Rights on prohibited discrimination based on sexual orientation: Abrusci, ‘A Tale of Convergence’, p. 240. See also Anja Seibert Fohr, ‘The Rise of Equality in International Law and Its Pitfalls: Learning from Comparative Constitutional Law’, (2010) 35 Brook. J. Int. L., p. 1; and Melanie Bejzyk, ‘Developments on LGBTI Rights at the United Nations’, in New Frontiers in LGBTI Rights, Proceedings of the Annual Meeting, (2016) 110 Am. Soc. Int. L. Proc., p. 25. 126 Toonen v. Australia, CCPR/C/50/D/488/1992, 31 March 1994 [6.2] [6.7], [8.6], [8.7].

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under Article 26 comprises also discrimination based on sexual orientation. It declared that the remedy to which the author was entitled included reconsideration of his pension application without discrimination ‘based on his sex or sexual orientation’ if necessary through an amendment of the law.127 Conscious that Australia engaged very little on the merits (contesting admissibility only on the fact-specific claims), Ruth Wedgwood and Franco DePasquale sounded a note of caution in a concurring Individual Opinion to make the point that the decision was virtually uncontested and the Committee essentially entered a default judgment. In particular, they were aware that ‘many governments and many people of good will share an interest in finding an appropriate moral and legal answer to the issues and controversies of equalizing various government entitlements between samesex and heterosexual couples, including the disputed claim that there is a transjurisdictional right to recognition of gay marriage’.128 They were uneasy that the Committee’s decision may be taken to denote more than it did when the Committee did not purport to canvass the fuller range of ‘reasonable and objective’ arguments that other States and other complainants may offer in the future on these questions in the same or other contexts as those of the author. In X v. Colombia the Committee followed Young in finding a violation on the basis of sexual orientation when the author’s life partner died and the author was not recognised as his permanent partner for pension purposes, because the right to receive pension benefits was limited to members of a heterosexual de facto marital union. This time the State did contest the merits, but advanced no argument to justify as reasonable and objective such an obvious distinction between same-sex partners (who were not entitled to pension benefits), and unmarried heterosexual partners (who were). The Committee distinguished the situation from that in Danning (where benefit entitlements between married couples and heterosexual unmarried couples were reasonable and objective as they had the choice to marry or not). It was not open to the author to enter into marriage with his same-sex permanent partner under domestic law, and the relevant legislation in any event did not make a distinction between married and unmarried couples but between same-sex and heterosexual couples.129 The conservatism within an element of the Committee was evident in the Individual Opinion of two dissenting members, given what they saw as the interpretive limits of Article 26 inherent in it not explicitly covering discrimination on grounds of sexual orientation.130

127 Young v. Australia, CCPR/C/78/D/941/2000, 6 August 2003 [10.4], [12]. 128 Individual Opinion by Committee members Ms Ruth Wedgwood and Mr Franco DePasquale (concurring), Young v. Australia, CCPR/C/78/D/941/2000, 6 August 2003. 129 X v. Colombia, CCPR/C/89/D/1361/2005, 30 March 2007 [7.2]. 130 Separate Opinion of Messrs Abdelfattah Amor and Ahmed Khalil (dissenting), X v. Colombia, CCPR/C/89/D/1361/2005, 30 March 2007.

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The question of same-sex marriage was dealt with under Article 23 in Joslin v. New Zealand, even though the authors in that case claimed a violation of Article 26 (as well as Articles 16, 17 and 23) in the failure of the Marriage Act to provide for same-sex marriage (arguing the Act discriminated against them directly on the basis of sex and indirectly on the basis of sexual orientation). Their inability to marry caused them to suffer ‘a real adverse impact’ in several ways: they were denied the ability to marry, a basic civil right, and were excluded from full membership of society; their relationship was stigmatised (with detrimental effects on self-worth), and they did not have the ability to choose whether or not to marry, like heterosexual couples could. The Committee’s starting point was that Article 23(2) expressly addresses the issue of the right to marry and that in that provision the term ‘men and women’ (rather than general terms such as ‘every human being, ‘everyone’ and ‘all persons’ used elsewhere in the Covenant) indicates that the Covenant obligation is for States to recognise, as marriage, only the union between a man and a woman wishing to marry each other. Given this scope, the Committee unanimously decided it could not find that the mere refusal to provide for marriage between same-sex couples was a violation of Articles 16, 17, 23 or 26.131 In a Concurring Opinion Rajsoomer Lallah and Martin Scheinin pointed out that Article 23(2) does not limit the liberty of States to recognise, in the form of marriage or in some other comparable form, the companionship between two men or between two women. They observed that the decision should not be read as a general statement that differential treatment between married couples and same-sex couples not allowed under the law to marry would never amount to a violation of Article 26 (because it may very well do). They referred to Toonen for the established view of the Committee that the prohibition against discrimination on grounds of ‘sex’ in Article 26 comprises also discrimination based on sexual orientation. Two recent decisions against Australia concern discrimination as a result of legal requirements which were unnecessarily driven by the (then) definition of marriage in the Marriage Act only between a man and a woman. C v. Australia concerned divorce proceedings for a same-sex marriage which the author entered into in Canada. A requirement for divorce proceedings in Australia was that a party’s marital relationship be recognised as a ‘marriage’, but at that time Australia’s Marriage Act permitted marriage only between a man and a woman. Foreign marriages were recognised in Australia (including under-age marriages over the age of 16 and, for the purpose of providing relief, foreign polygamous marriages, 131 Joslin et al. v. New Zealand, Communication No. 902/1999, A/57/40 at 214 (2002), 17 July 2002 [3.1], [8.2] [8.3]. The Committee nevertheless remains vigilant when same sex couples cannot enter into same sex marriage (Australia CCPR/C/AUS/CO/6 (2017) 29), civil partnerships (Mauritius CCPR/C/MUS/CO/5 (2017) 9), or any form of legally recognised union (Bulgaria CCPR/C/BGR/CO/4 (2018) 11), or cannot adopt children (Bulgaria CCPR/C/BGR/ CO/4 (2018) 11).

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even though neither of these were permitted under Australian law). Same-sex unions solemnised overseas were excluded. The denial of court-based relief in the form of a divorce order prevented her from being allowed to remarry or enter a civil partnership under Australian law, and had other important consequences for her as the birth mother of the couple’s child. The Committee stated the somewhat self-evident principle, though one of general importance, that compliance with domestic law does not in and of itself establish the reasonableness, objectiveness, or legitimacy of a distinction, before concluding that the State’s justifications were unconvincing (especially for not explaining why relief available to some forms of marriage not available in Australia did not apply also to unrecognised foreign same-sex marriages). It therefore found that the differentiation of treatment in access to divorce proceedings based on the author’s sexual orientation was not based on reasonable and objective criteria, in violation of Article 26.132 In G v. Australia the Committee made its first Article 26 finding of discrimination on the basis of transgender status (marital status and transgender status) in Australia’s refusal to change the author’s sex on her birth certificate, unless she divorced from her spouse (with whom she was in a happy relationship). The official aim of conditioning this on divorce was to ensure consistency with the Marriage Act which then defined marriage as being between a man and a woman. Yet it was apparent that a sex change in other official identification documents was allowed (such as in a passport already issued to the author). In fact, it would result in conflicting identity markers, and documents containing identity information inconsistent with a person’s situation (which could mislead officials as to the true identity of the bearer). Furthermore, federal law allowed state and territory governments to issue precisely such birth certificates. The crux of the Committee’s finding under the equal protection limb of Article 26 was that since Australia legally recognised gender reassignment and prohibited discrimination against transgender persons, it was providing protection against discrimination; by denying transgender persons who were married a birth certificate that correctly identified their sex, in contrast to unmarried transgender and non-transgender persons, it failed to afford the author equal protection under the law as a married transgender person.133 The Committee is increasingly attuned to issues affecting those who have undergone or would choose gender reassignment.134 132 C v. Australia, CCPR/C/119/D/2216/2012, 28 March 2017 [9.6]. 133 G v. Australia, CCPR/C/119/D/2172/2012, 2 December 2017 [7.7], [7.11], [7.15]. See also M.Z.B.M. v. Denmark, CCPR/C/119/D/2593/2015, 20 March 2017 [7.6] (deportation of a transgender woman to Malaysia not a violation of Art. 7 in conjunction with Arts 17(1) and 26 even though her appearance following gender reassignment surgery, hormonal treatment and dressing did not correspond with her ID documents, and she had been detained on several occasions, submitted to sexual abuse by Malaysian police, and was charged with a criminal offence under the Sharia law). 134 E.g., Kazakhstan CCPR/C/KAZ/CO/2 (2016) 9 (concern at stringent conditions for gender reassignment surgery and sex change, combined with a recommendation to review procedures

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As the brief survey of incidents affecting LGBTI individuals provided below indicates, a number concern freedom of expression. Fedotova v. Russian Federation resulted in a finding of violation of Article 19(2), read in conjunction with Article 26, following clear discrimination on grounds of sexuality. The author was convicted and fined under legislation which created administrative liability for ‘propaganda of homosexuality (sexual act between men or lesbianism) among minors’ when she displayed posters that declared ‘Homosexuality is normal’ and ‘I am proud of my homosexuality’ near a secondary school building. The legislation was discriminatory on its face in restricting freedom of expression in relation to ‘propaganda of homosexuality’ – as opposed to propaganda of heterosexuality or sexuality generally.135 It is discussed in further detail in the chapter on Article 19.136 A clearer, free-standing Article 26 finding of discrimination on the basis of sexual orientation and gender identity was made in Nepomnyashchiy v. Russian Federation when under similar provisions the author was sanctioned for displaying a poster near the entrance to a children’s library, which read ‘Homosexuality is a healthy form of sexuality. This should be known by children and adults!’ For the same reasons as in Fedotova the legislation was discriminatory on its face. (The Committee made a typographical error when it referred in its decision to its previous comments on laws banning ‘promotion of non-traditional sexual relations with minors’. It was citing its Concluding Observations on the seventh periodic report of the Russian Federation where it said that ‘laws . . . banning “promotion of non-traditional sexual relations to minors” exacerbate the negative stereotypes against LGBT individuals and represent a disproportionate restriction of their rights under the Covenant’.137) In 2006 a distinguished group of international human rights experts met in Yogyakarta and developed a set of principles which are documented in The Application of International Human Rights Law in relation to Sexual for gender reassignment surgery and sex change with a view to ensuring their compatibility with the Covenant); Serbia CCPR/C/SRB/CO/3 (2017) 12 (the legal consequences of adjusting or changing one’s sex were not regulated by any legal framework and there was no right to a preferred gender in the absence of surgical intervention); Bulgaria CCPR/C/BGR/CO/4 (2018) 11, 12 (recommendation for a simple and accessible administrative procedure for change of civil status with respect to gender identity); Belarus CCPR/C/BLR/CO/5 (2018) 19 (concern at reports of violations of privacy owing, inter alia, to gendered ID numbers in passports making gender reassignment information available to a broad range of officials, and indicating unfitness to serve in the military); Lithuania CCPR/C/LTU/CO/4 (2018) 9 (noting absence of legislation enabling gender reassignment procedures and change of civil status without undergoing gender reassignment surgery). 135 Fedotova v. Russian Federation, CCPR/C/106/D/1932/2010, 31 October 2012 [10.6] [10.8]. 136 See chapter on Article 19: Freedom of Expression, sections ‘Covenant compatibility of Laws’ and ‘Public Health and Public Morals’, above. 137 Nepomnyashchiy v. Russian Federation, CCPR/C/123/D/2318/2013, 17 July 2018 [7.5], citing CCPR/C/RUS/CO/7 10 (d). For criticism of similar laws, see Lithuania CCPR/C/LTU/CO/4 (2018) 9.

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Orientation and Gender Identity.138 Among the member countries of the Council of Europe, Council Recommendation CM/Rec (2010)5 also represents an important development against discrimination on grounds of sexual orientation or gender identity.139 The Committee’s consideration of reported instances of LGBTI status-based discrimination discloses various patterns. The Committee for many years has called for the decriminalisation of consensual same-sex conduct.140 It has inevitably been acutely concerned where criminalisation has resulted in significant prison sentences, raising issues under Articles 2, 9, 17 and 26,141 as well as Article 7 (where detention results in inhumane and degrading treatment),142 and Article 6 (in those countries where such conduct is still a capital offence).143 The Committee is also sensitive to the fact that criminalisation impedes effective education programmes directed at HIV/AIDS prevention.144 Less common but disguised forms of statusbased discrimination include deportation of ‘prohibited persons’ for immigration purposes,145 and ‘social cleansing’ operations which put lives in jeopardy.146

138 International Commission of Jurists (ICJ), Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007, drafted, developed and discussed by a group of human rights experts following a meeting held at Gadjah Mada University, Yogyakarta, Indonesia, 6 9 November 2006. For further detail, see Michael O’Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’, in Stephanie Farrior (ed.), Equality and Non Discrimination under International Law (Routledge, 2017), vol. 2. 139 Recommendation CM/Rec (2010)5 of the Committee of Ministers of the Council of Europe to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. 140 E.g., Cyprus CCPR/C/79/Add.88 (1998) 11; Barbados CCPR/C/BRB/CO/3 (2007) 13; Sudan CCPR/C/SDN/CO/3 (2007) 19; Jamaica CCPR/C/JAM/CO/3 (2011) 8; Kuwait CCPR/C/ KWT/CO/2 (2011) 30; Malawi CCPR/C/MWI/CO/1 (2011) 7; Togo CCPR/C/TGO/CO/4 (2011) 14 (the Committee’s concerns were not allayed by the law not being applied in practice or by the statement that it is important to change mindsets before modifying the law); Kenya CCPR/C/KEN/CO/3 (2012) 8; Turkmenistan CCPR/C/TKM/CO/1 (2012) 21; Burundi CCPR/ C/BDI/CO/2 (2014) 8; Malawi CCPR/C/MWI/CO/1 (2014) 10; Sierra Leone CCPR/C/SLE/ CO/1 (2014) 11; Sri Lanka CCPR/C/LKA/CO/5 (2014) 8; Jamaica CCPR/C/JAM/CO/4 (2016) 15; Kuwait CCPR/C/KWT/CO/3 (2016) 12; Bangladesh CCPR/C/BGD/CO/1 (2017) 11; Cameroon CCPR/C/CMR/CO/5 (2017) 13; Congo CCPR/C/COD/CO/4 (2017) 13; Mauritius CCPR/C/MUS/CO/5 (2017) 9; Swaziland CCPR/C/SWZ/CO/1 (2017) 18; Turkmenistan CCPR/C/TKM/CO/2 (2017) 8; Bahrain CCPR/C/BHR/CO/1 (2018) 23; Belize CCPR/C/ BLZ/CO/1/Add.1 (2018) 14 Guinea CCPR/C/GIN/CO/3 (2018) 17; Lebanon CCPR/C/LBN/ CO/3 (2018) 13. 141 E.g., Turkmenistan CCPR/C/TKM/CO/1 (2012) 21. See also Gambia CCPR/C/GMB/CO/2 (2018) 11 (arbitrary arrest). 142 E.g., Cameroon CCPR/C/CMR/CO/4 (2010) 12. 143 E.g., Sudan CCPR/C/SDN/CO/3 (2007) 19; Yemen CCPR/C/YEM/CO/5 (2012) 13; Mauritania CCPR/C/MRT/CO/1 (2013) 8. 144 E.g., Cameroon CCPR/C/CMR/CO/4 (2010) 12; Jamaica CCPR/C/JAM/CO/3 (2011) 9; Kenya CCPR/C/KEN/CO/3 (2012) 9; Costa Rica CCPR/C/CRI/CO/6 (2016) 14. 145 Zimbabwe CCPR/C/79/Add.89 (1998) 24; Belize CCPR/C/BLZ/CO/1 (2013) 13. 146 Colombia CCPR/C/79/Add.76 (1997) 16.

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By the 2000s and 2010s the Committee was regularly noting absences in antidiscrimination measures on ground of sexual orientation,147 and instances of discrimination on the basis of sexual orientation in access to healthcare148 (for which it recommended the launch of awareness raising to combat social prejudice in some instances).149 There followed examples of status-based interferences with freedom of association (e.g., prolonged delays in registering an association in support of sexual minority rights),150 as well as freedom of expression and assembly.151 The Committee’s concern extends to bullying and harassment against students in educational settings, and it has recommended specific measures to provide an educational environment free of discrimination and violence, particularly through awareness-raising campaigns, school curricula and training addressed to educational personnel, and other measures ‘to put an end to any form of social stigmatisation of homosexuality, bisexuality or transsexuality’.152 It continues to condemn violence (which in some cases includes murder) and call for the investigation, prosecution and punishment of those responsible for such acts.153 Incidents of violence on the basis of LGBT status have nevertheless continued, as have arbitrary arrests and detention, abuse, torture, sexual assault and harassment.154 The Committee has addressed the subject of hate speech,155 violence, murder and other hate crimes with persistent regularity.156 It has cautioned against hatred 147 E.g., Namibia CCPR/CO/81/NAM (2004) 22; Jamaica CCPR/C/JAM/CO/3 (2011) 8; Belize CCPR/C/BLZ/CO/1 (2013) 13; HK SAR CCPR/C/CHN HKG/CO/3 (2013) 23; Sierra Leone CCPR/C/SLE/CO/1 (2014) 11; Russian Federation CCPR/C/RUS/CO/7) (2015) 10(b). 148 E.g., Turkey CCPR/C/TUR/CO/1 (2012) 10; Malawi CCPR/C/MWI/CO/1 (2014) 10; Costa Rica CCPR/C/CRI/CO/6 (2016) 13. 149 E.g., Chile CCPR/C/CHL/CO/5 (2007) 16. 150 E.g., Mozambique CCPR/C/MOZ/CO/1 (2013) 22. See also Burundi CCPR/C/BDI/CO/2 (2014) 8. 151 E.g., Ukraine CCPR/C/UKR/CO/7 (2013) 10; Georgia CCPR/C/GEO/CO/4 (2014) 8. 152 E.g., Malta CCPR/C/MLT/CO/2 (2014) 10. 153 E.g., Armenia CCPR/C/ARM/CO/2 (2012) 10; Guatemala CCPR/C/GTM/CO/3 (2012) 11; Haiti CCPR/C/HTI/CO/1 (2014) 9; Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 9; Montenegro CCPR/C/MNE/CO/1 (2014) 8; Russian Federation CCPR/C/RUS/CO/7 (2015) 10(a); Venezuela CCPR/C/VEN/CO/4 (2015) 8; Ecuador CCPR/C/ECU/CO/6 (2016) 11; Peru CCPR/C/PER/CO/5 (2013) 8; Sierra Leone CCPR/C/SLE/CO/1 (2014) 11; Costa Rica CCPR/C/CRI/CO/6 (2016) 12. The Committee is particularly sensitive when it comes to negative statements by public officials against LGBT persons, e.g., Albania CCPR/C/ALB/ CO/2 (2013) 8. 154 E.g., Kuwait CCPR/C/KWT/CO/2 (2011) 30. See also Dominican Republic CCPR/C/DOM/ CO/5 (2012) 16. 155 E.g., Mongolia CCPR/C/MNG/CO/5 (2011) 9; Lithuania CCPR/C/LTU/CO/3 (2012) 15; Burkina Faso CCPR/C/BFA/CO/1 (2016) 13; Slovakia CCPR/C/SVK/CO/4 (2016) 14; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 14; Bulgaria CCPR/C/BGR/CO/4 (2018) 9. 156 E.g., Ukraine CCPR/C/UKR/CO/7 (2013) 10; Georgia CCPR/C/GEO/CO/4 (2014) 8; Korea CCPR/C/KOR/CO/4 (2015) 14; Russian Federation CCPR/C/RUS/CO/7) (2015) 10(a); Azerbaijan CCPR/C/AZE/CO/4 (2016) 8; Colombia CCPR/C/COL/CO/7 (2016) 16; Jamaica CCPR/C/JAM/CO/4 (2016) 17; Morocco CCPR/C/MAR/CO/6 (2016) 11; Cameroon CCPR/C/

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spread by the internet and has pointed to General Comment 34 on freedom of expression for guidance on the most appropriate measure of response.157 It still has to call on States for comprehensive anti-discrimination legislation, which includes as prohibited grounds gender, gender identity and sexual orientation.158 The Committee and other UN organs have addressed the question of enforced ‘conversion therapy’, where it has been part of a regulatory response to homosexuality, but more generally where it involves coercion, enforced and other involuntary measures imposed on transgender men and women.159 In the case of Korea, the Committee made recommendations against the authorisation of the National Assembly and of buildings of the National Human Rights Commission for private organisations to host ‘conversion therapies’ for lesbian, gay, bisexual and transgender individuals.160 It also recommended that Ecuador redouble its efforts to eliminate the practice of placing individuals in institutions for treatment to ‘cure their sexual orientation or gender identity’, and prosecute and punish those responsible.161 The Committee also recommended that Ukraine should replace a requirement for compulsory forty-five-day confinement of those requiring a sex change in a psychiatric institution with a less invasive measure, and ensure that any medical treatment be provided in the best interests of the individual with his or her consent.162 The Russian Federation should exclude transgender identity, bi-gender identity, asexuality and cross-dressing from the list of medical conditions constituting contra-indications to driving.163 Language Measures which distinguish on the basis of language have been taken in a number of country-specific contexts: in order to preserve the position of a linguistic minority; to enhance integration and nation-building following a country’s independence; to ensure language proficiency for election candidates; and as a requirement of naturalisation.

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160 162 163

CMR/CO/5 (2017) 13; Congo CCPR/C/COD/CO/4 (2017) 13; Mauritius CCPR/C/MUS/CO/5 (2017) 9; Mongolia CCPR/C/MNG/CO/6 (2017) 11; Romania CCPR/C/ROU/CO/5 (2017) 15; Serbia CCPR/C/SRB/CO/3 (2017) 12; Swaziland CCPR/C/SWZ/CO/1 (2017) 18; Thailand CCPR/C/THA/CO/2 (2017) 11; Turkmenistan CCPR/C/TKM/CO/2 (2017) 8; Guatemala CCPR/C/GTM/CO/4 (2018) 6; Lebanon CCPR/C/LBN/CO/3 (2018) 13; Liberia CCPR/C/ LBR/CO/1 (2018) 18. E.g., Lithuania CCPR/C/LTU/CO/3 (2012) 15; Lithuania CCPR/C/LTU/CO/4 (2018) 11. See section ‘Implementation’, this chapter, below. See also Committee Against Torture (CAT) Concluding Observations on China CAT/C/CHN/ CO/5 (2016) [55] [56]; CESCR General Comment No. 22 (2016) on the right to sexual and reproductive health (Art. 12 of ICESCR), 4 March 2016, E/C.12/GC/22 [23]; Reports of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/HRC/22/53 (2013) [88] and A/HRC/31/57 [48]. Korea CCPR/C/KOR/CO/4 (2015) 14 15. 161 Ecuador CCPR/C/ECU/CO/6 (2016) 12. Ukraine CCPR/C/UKR/CO/7 (2013) 10. Russian Federation CCPR/C/RUS/CO/7) (2015) 10(e).

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Minority protection was the motivation behind the prohibition on commercial advertising in any language other than French in Ballantyne et al. v. Canada, in predominantly French-speaking Québec. It also gave rise to issues of freedom of expression and equality before the law. Two authors sold clothes and paintings to a predominantly English-speaking clientele and had always used English signs to attract customers, while another sold funeral services using English-language signage and was suddenly at a competitive disadvantage compared with Frenchspeakers using their mother tongue. The State claimed that in the linguistic sphere the notion of de facto equality made it necessary to accord different treatment to arrive at a result that restored the balance between different situations, where ‘francification’ was in an exposed position. The Committee found a violation of Article 19(2) in the lack of necessity for the prohibition in restricting freedom of expression, but in relation to Article 26 it reasoned that since it applied to Frenchspeakers as well as English-speakers (so that a French-speaking person may not advertise in English in order to reach English-speaking clientele) there was no discrimination on the ground of language.164 Diergaardt et al. v. Namibia was decided against the particular historical background of Namibia’s recent independence and the adoption of English as the country’s official language, out of a concern to improve the chances of integration. It was thought that granting any privilege or particular status to one of the many minority or tribal languages in the country would be likely to encourage discrimination and be an obstacle to this. Afrikaans authors claimed they were denied the use of their mother tongue in administration, justice, education and public life. The State did not respond to the allegation, allowing the Committee to give uncontested weight to the allegation that an official circular (instructing civil servants not to reply to the authors’ written or oral communications in the Afrikaans language, even when they were perfectly capable of doing so) intentionally targeted against the possibility of staff using Afrikaans when dealing with public authorities. Consequently, the Committee found the authors, as Afrikaans-speakers, to be victims of a violation of Article 26.165 This is discussed further above in the section ‘Discriminatory Purpose or Intent’. Language proficiency was the main issue in Ignatane v. Latvia. The author was a Latvian citizen of Russian origin who stood in municipal elections in Riga, but was struck off the list of candidates by a single inspector a few days before the elections because of her lack of proficiency in Latvian, the designated official language. This was in spite of her holding a language aptitude certificate issued by a board of Latvian language specialists. The assessment was conducted in an ad hoc manner by a single individual. The Committee concluded that the annulment 164 Ballantyne et al. v. Canada, CCPR/C/47/D/359/1989 and 385/1989/Rev.1, 31 March 1993 [11.5]. 165 Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997 (2000), 31 March 1993 [10.10].

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of the her candidacy pursuant to an assessment that was not based on objective criteria, and which the State did not demonstrate was procedurally correct, was not compatible with its obligations under Article 25 (which secures the right and the opportunity to be elected at genuine periodic elections without any of the distinctions mentioned in Article 2), and it found this constituted violation of Article 25, in conjunction with Article 2.166 Linguistic proficiency was a condition of naturalisation in Denmark, and resulted in a successful Article 26 claim in Q v. Denmark when the refusal to grant the exemption to someone suffering from severe chronic mental disorder, who was illiterate both in Danish and in Arabic (his mother tongue), was not based on reasonable and objective grounds, as discussed above in the section ‘Indirect Discrimination/Discrimination in the Failure to Differentiate’. His situation was exacerbated by the lack of transparency of the procedure, which made it very difficult for him to support his request, as he did not know the real reasons for the refusal. He was entitled to be informed of the substantive grounds for the decision, even in a brief format.167 Religion An important development in combating religious discrimination was the Declaration on Religion or Belief concluded in 1981.168 The Committee pointed to the sensitivity to religious discrimination in its General Comment 22, stating that it ‘views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community’.169 Discrimination claims on the basis of religion under OP1 cover subject matter ranging from State funding for denominational schools, the associational aspects of religion, conscientious objection to military service, the requirement to wear protective headgear in place of religious headdress, and the prohibition on the use and possession of cannabis by Rastafarians.170 In concluding observations the range is wider.171

166 Ignatane v. Latvia, CCPR/C/72/D/884/1999, 25 July 2001 [7.4]. 167 Q v. Denmark, CCPR/C/113/D/2001/2010, 1 April 2015 [7.2] [7.5]. 168 In the European context, see, e.g., Recommendation 1987 (2011) Combating all Forms of Discrimination based on Religion, adopted by the Standing Committee, acting on behalf of the Parliamentary Assembly of the Council of Europe on 25 November 2011. 169 CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993, adopted at the Forty eighth Session of the Human Rights Committee [2]. 170 Nelson Tebbe, Religion and Equality Law (Routledge, 2017), discusses discrimination against religion, discrimination by religious actors and discrimination in favour of religious groups and traditions. 171 Poland CCPR/C/POL/CO/7 (2016) 31 (statements by State authorities in which they refuse to accept refugees of the Muslim faith).

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School Funding The public funding of religious schools in Waldman v. Canada violated Article 26 because it was made available in Ontario for Roman Catholic schools, but not for Jewish schools, resulting in the author having to meet the full costs of education in a Jewish school. It had its roots in concerns at the time of confederation in 1867 that the Province would be controlled by a Protestant majority (of 82 per cent) that may exercise its power over education to take away the rights of the Catholic minority (representing 17 per cent of the population). In the end, Roman Catholic schools (unlike Jewish schools) became entitled to full public funding. There was insufficient evidence to indicate that the Catholic community (or an identifiable section of it) was still in a disadvantaged position compared with members of the Jewish community wanting to educate their children in religious schools. The Committee made the crucial point that if a State chooses to provide funding to religious schools, it should make this funding available without discrimination, meaning that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria.172 This may be contrasted to the Committee’s position in Lindgren et al. v. Sweden on a distinction between private and public schools, in which parents of children in private schooling were denied subsidies for textbooks and meals available to those attending public schools: ‘a State party cannot be deemed to discriminate against parents who freely choose not to avail themselves of benefits which are generally open to all’.173

Registration of a Religious Order The Committee followed Waldman (that differential treatment in the conferral of a benefit must be provided without discrimination on the basis of religious belief) in Sister Immaculate Joseph et al. v. Sri Lanka when a Catholic Order was not allowed to be incorporated to enable it to better realise its various constitutional aims. The State characterised this as a protective measure for the prevailing Buddhist religion, asserting that the Order’s activities would ‘coercively or otherwise improperly propagate religion through the provision of material and other benefits to vulnerable people’. However, the authors supplied an extensive list of other religious bodies which were incorporated with similar objects to those of the Order, which enabled the Committee to find a violation of the ‘equal protection of the law’ limb of Article 26 in the State’s failure to provide reasons 172 Waldman v. Canada, CCPR/C/67/D/694/1996, 3 November 1999 [10.2] [10.6]. 173 Lindgren et al. v. Sweden, Communications Nos 298/1988 and 299/1988, Supp. No. 40 (A/46/ 40) at 253 (1991), 9 November 1990 [10.3]. See also Blom v. Sweden, Communication No. 191/ 1985, CCPR/C/OP/2 at 216 (1990) [10.3] (no violation where the same level of subsidy was not available for public and private sector schools (when the latter were not subject to State supervision)).

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why the authors’ Order was differently situated from those others, and why reasonable and objective grounds existed for distinguishing their claim. It also provided the basis for finding a violation of the ‘equality before the law’ limb of Article 26.174

Religious Practice Occasionally, the Committee has approached the issue of discrimination and religious manifestation in the same way, such as in Bhinder v. Canada when a Sikh was dismissed for wearing a turban rather than complying with an occupational hard-hat requirement, and it found there was no violation either under the limitation terms of Article 18(3), or under Article 26 where the requirement was reasonable and directed towards objective purposes that were compatible with the Covenant.175 The author in Prince v. South Africa distinguished his claim from that in Bhinder v. Canada by arguing that, as a bone fide adherent to Rastafarianism, the prohibition on possession and use of cannabis constituted indirect discrimination against him. He could not satisfy the conditions for admission to legal practice because he had two convictions for possession, and expressed his intention to continue using cannabis. He said the State justification in his case was much less concrete than in Bhinder, and the failure to exempt Rastafarians was based on pragmatic concerns such as the cost and difficulties of applying and enforcing an exemption. The State pointed to the practical difficulties posed by exemption, and the impossibility of preventing a dangerous substance from escaping from the system and threatening the public at large. The Committee considered that the prohibition was based on objective and reasonable grounds, noting that it affected all individuals equally, including members of other religious movements who may also believe in the beneficial nature of drugs. The failure to provide an exemption for Rastafarians did not therefore constitute differential treatment contrary to Article 26.176 F.A. v. France represents a clear departure on the part of the Committee from European Convention Islamic headscarf decisions, particularly Dahlab v. Switzerland in which the European Court ruled as inadmissible a claim by a primary school teacher who was not allowed to wear the headscarf, because it was a ‘powerful external symbol’ akin to proselytism.177 Following her return 174 Sister Immaculate Joseph et al. v. Sri Lanka, CCPR/C/85/D/1249/2004, 21 October 2005 [7.4] [7.5]. For discussion on discrimination affecting religious entities, see Cole Durham, Facilitating Freedom of Religion or Belief: a Desk Book (Martinus Nijhoff, 2004). 175 Bhinder v. Canada, CCPR/C/37/D/208/1986, 9 November 1989 [6.2]. 176 Prince v. South Africa, CCPR/C/91/D/1474/2006, 31 October 2007 [7.5]. 177 Dahlab v. Switzerland, App. No. 42393/98, ECHR, 15 February 2001. See also Dogru v. France, App. No. 27058/05, ECHR, 4 December 2008, which showed significant support for France’s secularist policies.

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from parental leave to work in a day care centre set up by a private association, the author in F.A. v. France was informed that, in accordance with the centre’s internal regulations, she would not be allowed to return to work wearing a headscarf, as she had habitually done. She was ultimately dismissed by the association for doing so, ‘in violation of the centre’s internal regulations for refusing to remove her “Islamic veil”’. The relevant clause read ‘the principle of the freedom of conscience and religion of each staff member may not hinder compliance with the principles of secularism and neutrality that apply to all [of the association’s] activities’. She relied, successfully, on Article 18, and Article 26, claiming that she did not benefit from the protection from discrimination provided by domestic law and was the subject of an ‘indirect’ discriminatory dismissal because the relevant clause in the internal regulations affected Muslim women in a particularly disadvantageous and disproportionate way. The State argued that this did not discriminate because it did not target any religion, philosophical belief or gender. Also, the Labour Code provided for the possibility of introducing restrictive clauses under certain conditions, which it considered were met. Relying on the gravamen of the European decisions, the State asserted that the regulations were intended to protect the children at the centre from exposure to any religious influence other than their own. Significant to the Committee’s finding of violation of Article 26 was that the author was dismissed (without severance pay) without sufficient justification as to how wearing a headscarf would prevent her from performing her functions, or any assessment of the proportionality of that measure. Her dismissal, based on the internal regulations imposing neutrality on employees and the Labour Code, was not based on reasonable and objective criteria and constituted intersectional discrimination based on gender and religion. It was significant to the Article 18 decision, and presumably also to that under Article 26, that the State could not explain why the headscarf would be incompatible with the purpose of the association which managed the centre, to work in support of early childhood in deprived areas and to promote the social and professional integration of local women, especially given that one of the association’s objectives was ‘to promote the social and professional integration of women regardless of political opinion or faith’.178 The Committee referred to its Concluding Observations on the fifth periodic report of France, where it cited restrictions on the freedom to express one’s religion or belief that have a disproportionate impact on members of specific religions and on girls, and expressed concern that the effect of these laws on certain groups’ feeling of exclusion and marginalisation could run counter to the intended goals.179

178 F.A. v. France, CCPR/C/123/D/2662/2015, 16 July 2018 [8.8], [8.10] [8.13]. 179 France CCPR/C/FRA/CO/5 (2015) 22.

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Distinguishing its approach from that of the European Court in Leyla Şahin v. Turkey,180 the Committee in Seyma Türkan v. Turkey found a violation of Article 26 and, emphasising the gender discrimination involved, also of Article 3 in conjunction with Article 18, when the author was refused registration at the university where she had won a competitive place, because she wore a wig instead of a headscarf out of religious duty.181 In two other recent cases against France, the Committee again made findings of ‘intersectional discrimination based on gender and religion’, in violation of Article 26 for indirect discrimination. In Sonia Yaker v. France and Miriana Hebbadj v. France the criminal prohibition against concealing the face in public areas disproportionately affected the author in each case as a Muslim woman who chose to wear the full face veil. The ban was based on the apparent assumption that the full veil is inherently discriminatory and that women who wear it are forced to do so, yet the Committee (while acknowledging that some women may be subject to family or social pressures) pointed out that the wearing it may also be a choice – or even a means of staking a claim – based on religious belief, as in the author’s case. Rather than protecting fully veiled women, it could have the opposite effect of confining them to their homes, impeding their access to public services and exposing them to abuse and marginalisation. The sanctions, imposing criminal liability, had been applied in practice and were not, as the State maintained, ‘measured’.182 Religious discrimination remains a constant issue for the Committee in examining State reports.183

Alternatives to Military Service On a number of occasions the Committee has considered whether the specific conditions under which alternatives to compulsory military service are available violate Article 26, and decisions have been far from predictable in their rationale and outcome over the years, but are now well settled. In Aapo Järvinen v. Finland the Committee supported prolonged alternative service (sixteen month, compared with twelve months’ military service) where this dispensed with a detailed 180 Leyla Şahin v. Turkey, App. No. 44774/98, [2005] ECHR 819. 181 Türkan v. Turkey, CCPR/C/123/D/2274/2013, 17 July 2018 [7.7] [7.8]. 182 Hebbadj v. France, CCPR/C/123/D/2807/2016, 17 July 2018 [7.15] [7.17]; Yaker v. France, CCPR/C/123/D/2747/2016, 17 July 2018 [8.15] [8.17]. 183 For recent instances of religious discrimination, see Azerbaijan CCPR/C/AZE/CO/4 (2016) 32; Kazakhstan CCPR/C/KAZ/CO/2 (2016) 47; Moldova CCPR/C/MDA/CO/3 (2016) 11, 12; Australia CCPR/C/AUS/CO/6 (2017) 19; Bangladesh CCPR/C/BGD/CO/1 (2017) 11; Jordan CCPR/C/JOR/CO/5 (2017) 28; Pakistan CCPR/C/PAK/CO/1 (2017) 47; Serbia CCPR/C/SRB/ CO/3 (2017) 36; Switzerland CCPR/C/CHE/CO/4 (2017) 42, 44; Turkmenistan CCPR/C/ TKM/CO/2 (2017) 38; Bahrain CCPR/C/BHR/CO/1 (2018) 63; Belarus CCPR/C/BLR/CO/5 (2018) 45; Hungary CCPR/C/HUN/CO/6 (2018) 17; Lithuania CCPR/C/LTU/CO/4 (2018) 11; Norway CCPR/C/NOR/CO/7 (2018) 16.

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examination of the genuineness of religious or ethical convictions, and relied on such prolongation as an indicator of a conscript’s convictions. Even though it worked to the detriment of genuine conscientious objectors, the Committee considered that it was neither unreasonable nor punitive since it removed from them the difficult task of convincing an examination board of the genuineness of their beliefs, and allowed a broader range of individuals to opt for alternative service.184 In Foin v. France twenty-four months alternative service was required (compared with only twelve months for military service). The Committee was not satisfied that the difference was based on reasonable and objective criteria, because the reasons advanced by the State did not refer to such criteria or at best did so only in general terms without reference to the author’s case, and the difference was justified merely on the basis that doubling the length of service was the only way to test the sincerity of an individual’s convictions. It found a violation of Article 26 by virtue of discrimination on the basis of the author’s ‘conviction of conscience’.185 The claim was declared inadmissible in H.A.E.D.J. v. Netherlands where it was based on differences in living allowances between those performing alternative service and civilians, because there was no entitlement during such service to be paid as if still in private civilian life.186 As discussed in the chapter on Article 18,187 the Committee’s approach to conscientious objection to compulsory military service underwent a fundamental shift, marked by its decision in Jeong et al. v. Korea,188 thereafter favouring findings of violation of the inviolate realm of Article 18(1), rather than unjustified restriction on external manifestation. The Committee’s Concluding Observations provide evidence of a wide range of instances of discrimination on grounds of religion, in relation to: citizenship (a nonMuslim could not become a citizen of the Maldives);189 employment and education;190 marriage (particularly preventing inter-religious marriage,191 and the recognition of certain religious marriages);192 the enjoyment of political rights;193 the

184 Järvinen v. Finland, CCPR/C/39/D/295/1988 (1990), 25 July 1990 [6.4] [6.5]. 185 Foin v. France, CCPR/C/67/D/666/1995, 9 November 1999 [10.3]. For similar findings, see Maille v. France, CCPR/C/69/D/689/1996, 10 July 2000 [10.4]; Venier and Nicolas v. France, CCPR/C/69/D/690/1996 & 691/1996, 1 August 2000 [10.4]. 186 H.A.E.D.J. v. Netherlands, CCPR/C/37/D/297/1988, 30 October 1989 [8.2]. 187 See chapter on Article 18: Freedom of Thought, Conscience and Religion, section ‘Compulsory Military Service’. 188 Jeong et al. v. Korea, CCPR/C/101/D/1642 1741/2007, 24 March 2011 [7.3]. 189 Maldives CCPR/C/MDV/CO/1 (2012) 9. 190 Malawi CCPR/C/MWI/CO/1 (2014) 21; Ireland A/48/40 (1993) 554. 191 Morocco CCPR/CO/82/MAR (2004) 27. 192 Costa Rica CCPR/C/CRI/CO/5 (2007) 10; Costa Rica CCPR/C/CRI/CO/6 (2016) 33 (only Catholic marriages had civil effect in Costa Rica). 193 St Vincent and the Grenadines A/45/40 (1990) 262 (ministers of religion were precluded from serving in parliament).

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registration of civil status;194 financial support;195 and the restoration of places of worship and related properties of religious minorities seized in the post-Soviet era.196 Political or Other Opinion Kang v. Korea is an unusual example of discrimination on the basis of political opinion, arising out of the use of an ‘ideology conversion system’ to which the author was subjected as a political prisoner. It was applied with a view to altering his political opinion through the offer of inducements of preferential treatment within prison and improved possibilities of parole, leading the Committee to make findings of violation of Articles 18(1), and 19(1), both in conjunction with Article 26.197 Political motivation also led to discrimination in denying equal protection of the law to the author in Orihuela v. Peru. Following a change of government in 1985, he was dismissed from his post at the Chamber of Deputies after twenty-six years without severance pay or any administrative proceedings, and his civil service pension was not paid. He attributed this to his political opposition to the government of the then President Alan García of the American Popular Revolutionary Alliance Party. He could not avail himself of administrative and judicial remedies because proceedings were frustrated and unduly prolonged. The Committee found a violation of Article 26 because the author did not benefit ‘without any discrimination [from] equal protection of the law’.198 Severe cases of discrimination on grounds of political opinion often involve numerous other abuses. The author in Bwalya v. Zambia was chairman of a political party in Zambia who was prevented by the authorities from properly preparing his candidacy and from participating in an electoral campaign. He was subject to threats and intimidation, and (among other things) was dismissed from his employment, expelled from his home (with the rest of his family) and detained on charges of belonging to an illegal association, which the Committee found to be in violation of Articles 9(1) and (3), 12, 19(1), 25(a) and 26.199 Similarly, the substance of the claim in Oló Bahamonde v. Equatorial Guinea was that the author and others who did not share the views or adhere to the ruling party of President Obiang, or who did not at least belong to his clan, were subjected to

194 Denmark CCPR/C/DNK/CO/6 (2016) 37 (the Evangelical Lutheran Church (unlike others) was authorised to register births and to perform legally binding marriages without conditions). 195 Finland A/34/40 (1979) 412; Israel CCPR/C/79/Add.93 (1998) 12; Iceland A/38/40 (1983) 113; Luxembourg CCPR/CO/77/LUX (2003) 7; Liechtenstein CCPR/CO/81/LIE (2004) 13; Denmark CCPR/C/DNK/CO/5 (2008) 12. 196 Georgia CCPR/C/GEO/CO/4 (2014) 18. 197 Kang v. Korea, CCPR/C/78/D/878/1999, 15 July 2003 [7.2]. 198 Valenzuela v. Peru, CCPR/C/48/D/309/1988, 14 July 1993 [6.4]. 199 Bwalya v. Zambia, CCPR/C/48/D/314/1988 (1993), 14 July 1993 [6.6] [6.7].

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varying degrees of discrimination, intimidation and persecution, which resulted in findings under Articles 9(1) and (3), 12(1) and (2), 14(1) and 26.200 Discrimination for expressing an opinion, if not necessarily a political opinion, was manifestly at issue in Gedumbe v. Congo when the author, the then Zairian ambassador to Burundi, was unlawfully suspended from public service without disciplinary sanctions by an official against whom the author had alleged embezzlement. He was not reinstated, in contravention of relevant ministry decisions, and his salary was not paid. The Committee found a violation of Article 25(c) read in conjunction with Article 2, and in relation to his Article 26 claim it added, with some understatement, that it ‘sustains the author’s reasoning by finding a violation of article 25(c)’.201 Stalla Costa v. Uruguay was a case decided against the background of a policy of positive discrimination, where a preference was shown in public service recruitment for officials who were dismissed under former military rule on ideological, political or trade union grounds. The author could not claim a violation simply for not qualifying for that preference.202 Concluding Observations abound in accounts of reprisals against human rights defenders, journalists and other media professionals, political activists, political opponents, trade union leaders and other dissenting voices, as well as discriminatory restrictions on their freedoms under Articles 19, 21 and 22.203 National or Social Origin, Nationality and Citizenship Nationality is specified as a protected attribute under Articles 2(1) and 26, yet certain Covenant provisions distinguish between nationals and others. Article 13 makes special provision for expulsion of aliens, and Article 25 extends only to citizens. Otherwise the Covenant applies equally to aliens and citizens, and each Covenant right must be guaranteed to them without discriminatory disctinction.204 It is important to characterise claims based on nationality carefully. What may superficially appear to be an instance of race discrimination in Gueye v. France (and was claimed as such) was discrimination based on ‘other status’, namely, nationality (not national or social origin), when a change in pension entitlements following Senegalese independence resulted in differentiation between retired 200 Bahamonde v. Equatorial Guinea, CCPR/C/49/D/468/1991, 20 October 1993 [9.5]. 201 Gedumbe v. Congo, CCPR/C/75/D/641/1995, 9 July 2002 [5.3]. 202 Stalla Costa v. Uruguay, Communication No. 198/1985, Supp. No. 40 (A/42/40) at 170 (1987), 9 July 1987 [10]. 203 For recent examples, see Congo CCPR/C/COD/CO/4 (2017) 39; Dominican Republic CCPR/ C/DOM/CO/6 (2017) 39, 41; Pakistan CCPR/C/PAK/CO/1 (2017) 37; Swaziland CCPR/C/ SWZ/CO/1 (2017) 44; Bahrain CCPR/C/BHR/CO/1 (2018) 59; Belarus CCPR/C/BLR/CO/5 (2018) 49 55; El Salvador CCPR/C/SLV/CO/7 (2018) 37; Guatemala CCPR/C/GTM/CO/4 (2018) 36; Sudan CCPR/C/SDN/CO/5 (2018) 45. 204 General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986 [2].

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Senegalese and French soldiers. The Committee found it was not based on reasonable and objective criteria where entitlements depended on services the authors rendered in the past, having served in the French Army under the same conditions as French citizens.205 What might appear in Aumeeruddy-Cziffra and Others v. Mauritius to be discrimination based on nationality, when legislation which only subjected foreign spouses of Mauritian women to residence restrictions, but not foreign spouses of Mauritian men, in reality constituted discrimination on the basis of sex.206 When reviewing Monaco’s periodic report, the Committee was likewise concerned about the transmission of Monegasque nationality to children, seen primarily as an issue that men and women did not have the same right to transmit nationality to children.207 The basis for a distinction between aliens and nationals must, as always, be justified on reasonable and objective grounds. Karakurt v. Austria concerned a Turkish citizen with an open-ended permit to work in Austria who was employed by the Association for the Support of Foreigners in Linz. He was elected to the association’s work council, which promoted staff interests and supervised compliance with work conditions, but was then removed for being ineligible to stand, because it was only open to Austrian nationals or members of the EEA. He was neither. The domestic court considered the difference to be justified by European economic treaties which drew distinctions in labour matters between nationals and non-nationals. The Committee observed that the right to stand for election to the work council was a close and natural incident of his employment. Bearing in mind the functions of the work council in supporting foreigners, the Committee decided it was not reasonable to base a distinction in their capacity to stand for election to it, solely on nationality, and found it violated Article 26.208 A particularly unjustifiable distinction based on nationality in Vandom v. Korea required teachers who were neither Korean nationals nor of Korean ethnicity to undergo mandatory HIV/AIDS and drug testing when applying for a visa, ostensibly in the furtherance of protecting public health and maintaining public order.209 Distinctions based on citizenship (as with nationality) generally fall under ‘other status’ not ‘national origin’.210 Unreasonable preconditions for the restitution of property seized during the Soviet era resulted in Article 26 findings on the 205 Gueye et al. v. France, CCPR/C/35/D/196/1985, 3 April 1989 [9.4] [9.5]. 206 Aumeeruddy Cziffra et al. v. Mauritius, Communication No. R.9/35, Supp. No. 40 (A/36/40) at 134 (1981), 9 April 1981 [9.2(b)2(ii)3]. 207 Monaco CCPR/CO/72/MCO (2001) 10. See also Cyprus CCPR/C/CYP/CO/4 (2015) 6 (those of southeast Asian origin encountered obstacles in attaining Cypriot citizenship). 208 Karakurt v. Austria, CCPR/C/74/D/965/2000, 4 April 2002 (2002) [8.4]. 209 Vandom v. Korea, CCPR/C/123/D/2273/2013, 12 July 2018 [8.5]. 210 Individual Opinion of Sir Nigel Rodley and Mr Martin Scheinin (partly dissenting) in Karakurt v. Austria, CCPR/C/74/D/965/2000, 4 April 2002 (2002). Art. 1(2) of ICERD makes it clear that citizenship is not covered by the notion of ‘national origin’.

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basis of citizenship or residence, for example, in Simunek et al. v. Czech Republic because claimants were required to be Czech citizens and residents (‘pure Czechs living in the Czech and Slovak Federal Republic’) even though the original property entitlement was not predicated either on citizenship or residence, and the State was itself responsible for the departure of the authors.211 A particular feature of Walderode v. Czech Republic was arbitrariness given that the legislation giving effect to the compensation scheme already contained a requirement of citizenship, which was then amended retroactively to add a more stringent requirement of continued citizenship, which was such as to disqualify the author and others: ‘This raises an issue of arbitrariness and, consequently, of a breach of the right to equality before the law, equal protection of the law and nondiscrimination under article 26 of the Covenant.’212 The Committee upheld discrimination on the basis of nationality in Borzov v. Estonia. Estonia denied citizenship to the author because he had served in the Soviet military, in particular, because of the duration and level of his military training, his rank and background in the armed forces of the then USSR. The Committee made a distinction between, on the one hand, the national security grounds available in the limitation provisions of Articles 19, 21 and 22, and, on the other hand, the criteria applicable under Article 26 which are more general in nature, requiring reasonable and objective justification and a legitimate aim for distinctions that relate to an individual’s characteristics enumerated in Article 26.213 It accepted that in granting citizenship, considerations of national security may serve a legitimate aim as a matter of sovereignty, at least where a newly independent State such as Estonia has national security concerns related to its earlier status. Even 211 Simunek et al. v. Czech Republic, CCPR/C/54/D/516/1992, 19 July 1995 [11.6]. See also Adam v. Czech Republic, CCPR/C/57/D/586/1994, 23 July 1996 [12.6]; Blazek v. Czech Republic, CCPR/C/72/D/857/1999, 12 July 2001 [5.8]. See also Pezoldova v. Czech Republic, CCPR/C/ 75/D/757/1997, 25 October 2002; Kříž v. Czech Republic, CCPR/C/85/D/1054/2002, 1 November 2005; Polacek and Polacková v. Czech Republic, CCPR/C/90/D/1445/2006, 24 July 2007; Amundson v. Czech Republic, CCPR/C/95/D/1508/2006, 17 March 2009; Persan v. Czech Republic, CCPR/C/95/D/1479/2006, 24 March 2009; Blücher v. Czech Republic, CCPR/C/99/D/1491/2006, 27 July 2010; Gschwind v. Czech Republic, CCPR/C/99/ D/1742/2007, 27 July 2010; Zavrel v. Czech Republic, CCPR/C/99/D/1615/2007, 27 July 2010; Lange v. Czech Republic, CCPR/C/102/D/1586/2007, 25 August 2010; Drda v. Czech Republic, CCPR/C/100/D/1581/2007, 27 October 2010; Jünglingová v. Czech Republic, CCPR/C/103/D/ 1563/2007, 24 October 2011; Klain v. Czech Republic, CCPR/C/103/D/1847/2008, 1 November 2011. 212 Walderode v. Czech Republic, CCPR/C/73/D/747/1997, 30 October 2001 [8.3]. 213 Borzov v. Estonia, CCPR/C/81/D/1136/2002, 26 July 2004 [7.2], citing Kavanagh v. Ireland (No. 1), CCPR/C/71/D/819/1998, 4 April 2001. See also Toala et al. v. New Zealand, CCPR/C/ 70/D/675/1995, 2 November 2000 [11.6] (the complainants were citizens of Western Samoa. As a result of a Privy Council judgment they nominally became New Zealand citizens but this was nullified by subsequent legislation. Since it applied only to those Western Samoans who were not resident in New Zealand, and the complainants at that time were not resident in New Zealand and had no ties with that country, there was no basis for concluding that the application of the legislation was discriminatory).

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though lack of citizenship would affect the author’s enjoyment of certain Covenant rights (the Committee mentioned Article 25 but not Article 13) there was no violation in view of the fact that he had an Estonian residence permit and continued to receive his pension while living in Estonia, and given also that neither the Covenant nor international law more broadly spells out specific criteria for granting citizenship through naturalisation, and the domestic decision to deny it was reviewable.214 The Committee has raised related issues in its review of State reports. In Belgium at one time certain categories of aliens were not eligible for judicial assistance; also only non-profit-making associations with a minimum percentage of Belgian members (among other criteria) could claim their rights and obligations with respect to third parties.215 The Committee pointed out to Monaco the need for distinctions between Monegasques and non-Monegasques in employment, and in the exercise of the freedoms of association and assembly, to be based on objective and reasonable criteria.216 It also criticised laws which limited equality before the courts only to citizens.217 Perhaps the most significant forms of discrimination in some countries is by caste, so that in Bangladesh, for example, it resulted in limited employment and housing opportunities for people from so-called lower castes who experienced extreme poverty, social stigma and marginalisation.218 Property The property restitution cases referred to above raised distinctions based on citizenship and residence, but the case of Haraldsson and Sveinsson v. Iceland concerned what the Committee described as a distinction ‘based on grounds equivalent to those of property’. The aim of the distinction may have been a legitimate one (in protecting limited fish stocks), but it was not based on reasonable and objective criteria where it created two groups: those who received a quota free, simply because they had engaged in fishing the relevant species during a particular period when a temporary measure was in place to protect fish stocks, which they could market to others effectively as a permanent entitlement; and those who had to buy or rent a quota from the first group. In particular, the State had not shown that the design and modalities of implementation of the quota system met the requirement of reasonableness.219 214 Borzov v. Estonia CCPR/C/81/D/1136/2002, 26 July 2004 [7.3] [7.4]. In Tsarjov v. Estonia, CCPR/C/91/D/1223/2003, 26 October 2007 [7.6]; Sipin v. Estonia, CCPR/C/93/D/1423/2005, 9 July 2008 [6.2]. The category of those excluded from permanent residence permits was closely linked to considerations of national security. Where such justification for differentiated treatment was persuasive, it was unnecessary that the application of the legislation be addition ally justified in the circumstances of an individual case. 215 Belgium A/43/40 (1988) 489. 216 Monaco CCPR/CO/72/MCO (2001) 17. 217 Croatia CCPR/C/HRV/CO/2 (2009) 4. 218 Bangladesh CCPR/C/BGD/CO/1 (2017) 11. 219 Haraldsson and Sveinsson v. Iceland, CCPR/C/91/D/1306/2004, 24 October 2007 [10.3] [10.4].

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Birth Some assertions of equality by virtue of birth are Covenant-incompatible. Article 26 could not be invoked in the case of demonstrable gender inequality in hereditary succession to ranks and titles of nobility in Martínez de Irujo v. Spain when the author could not succeed to her father’s dukedom but her younger brother could. This institution was beyond the values behind the principles of equality before the law and non-discrimination protected by Article 26.220 The criteria for determining the electorate in referenda held around the time of New Caledonia’s self-determination resulted in claims of discrimination in Gillot et al. v. France on the basis of the advantage given to others by virtue of birth, family ties and the transmission of the right to vote by descent. Referenda concerning the option of independence imposed criteria based on the strength of links to the territory, including length of residence, which the authors did not meet, in addition to separate qualifying criteria relating to possession of customary civil status, a presence in the territory of moral and material interests, combined with birth of the voter or their parents in the territory. The question the Committee had to answer was whether the differentiation (to achieve such a restricted electorate) between those (like the authors) who were deprived of the right to vote, and those who could vote because their links with the territory were sufficiently strong, was compatible with Article 25.221 It first found that the criteria used were objective, taking account, as the criteria did, the specific factors attesting to the strength of the links to the territory (in addition to the length of residence condition), and were based on objective elements for differentiating between residents as regards their relationship with New Caledonia, in conformity with the purpose and nature of each ballot.222 The Committee found there was no violation because every specific or general link to the territory was applied to French residents.223 The criteria made it possible to treat differently persons in objectively different situations as regards their ties to New Caledonia. It also concluded that the criteria established were reasonable given that they were applied strictly and solely to ballots held in the framework of a self-determination process (and could be justified only in this context of self-determination, not general elections, thereby also satisfying the proportionality requirement). It was not unreasonable to limit participation to those concerned by the future of New Caledonia who had proven, sufficiently strong ties to the territory.224 Children born out of wedlock are commonly discriminated against in many regions of the world. The Committee has had occasion to stress that States must repeal, amend or modify any legislation which discriminates against children on this ground, and it has expressed concern to a number of countries that children 220 Martínez de Irujo v. Spain, CCPR/C/80/D/1008/2001, 30 March 2004 [6.5]. 221 Gillot v. France, Communication No. 932/2000, A/57/40 at 270, 15 July 2002 [13.5]. 222 Ibid. [13.7] [13.8]. 223 Ibid. [13.12]. 224 Ibid. [13.16].

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born out of wedlock are discriminated against,225 including, with regard to their right of inheritance,226 and the acquisition of nationality, inheritance rights and birth registration.227 Other Status ‘Other status’ covers distinctions based on an unspecified range of attributes, but certainly including age, disability, citizenship and marriage. Citizenship was discussed for convenience under section ‘National Origin’, above. Because of the way discrimination on grounds of marital status developed, it is discussed under section ‘Sex, Sexual Orientation,Gender Identity, Transgender Status’, above.

Marital Status See above, section ‘Discrimination on Grounds of Sex and Marital Status in Social Security Legislation’.

Age ‘Age’ was clearly recognised within ‘other status’ under Article 26 in Love et al. v. Australia, which concerned mandatory termination of employment for Qantas pilots on reaching age 60. The Committee commented that it is by no means clear that mandatory retirement age would generally constitute age discrimination, pointing out that limiting lifelong working time may be an aspect of workers’ protection, in particular, when there are comprehensive social security schemes available. It also noted that mandatory retirement age does not appear to be prohibited in any of the ILO conventions. In this particular case, maximising flight safety (for passengers, crew and others) was a legitimate aim, and in view of widespread national and international practice of imposing a mandatory retirement age of 60 in the interests of flight safety, it could not conclude that the distinction in a mandatory retirement age of 60 was not based on objective and reasonable considerations.228 However, in Albareda v. Uruguay the Committee found the ten-year difference in retirement age operating at two levels of senior executive employees to be unjustified. The authors were former diplomats, who were taken off their posts as Foreign Service secretaries. The State did not explain the purpose of the distinction between secretaries and other category M civil servants of the Foreign 225 226 227 228

E.g., Libya CCPR/C/LBY/CO/4 (2007) 27. E.g., Netherlands CCPR/CO/72/NET (2001) 21. E.g., Japan CCPR/C/JPN/CO/5 (2008) 28. Love et al. v. Australia, CCPR/C/77/D/983/2001, 25 March 2003 [8.2] [8.3]. Cf. Solís v. Peru, CCPR/C/86/D/1016/2001, 27 March 2006 (reorganisation of public body resulted in dismissal on the basis of time in service and age found not unreasonable).

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Service, nor did it put forward reasonable and objective criteria for the distinction. In fact, the domestic court’s own statements revealed how far it departed from such criteria when giving as a possible rationale the loss of reflexes and memory that might have an adverse effect on the effectiveness of staff performing the duties of First Secretary, adding that it did not find this ‘irrational’. Since the State did not explain how a civil servant’s age could affect the performance of a secretary so specifically and differently from the performance of a counsellor, minister or ambassador as to justify the difference of ten years between compulsory retirement ages, the Committee made a finding of violation of Article 26, read in conjunction with Article 2.229

Disability Disability is not mentioned in Articles 2 or 26 (or elsewhere in the Covenant), which is surprising given the importance of disability was such as to give rise to Convention-specific protection in the Convention on the Rights of Persons with Disabilities.230 C v. Australia concerned the treatment at school of a child diagnosed with Oppositional Defiance Disorder. After a series of school suspensions, including for gross insolence, persistent disobedience and deliberate provocative behaviour adversely affecting staff and students, it was proposed that the child be enrolled at a new high school close to home with an on-site special needs unit. This entailed developing a behaviour management contract between the principal and the child’s mother, setting out their respective roles and responsibilities to facilitate his return to school. The mother terminated discussions after a few drafts were prepared, and asked that her son return to school without being expected to control his behaviour. She lodged a complaint with the domestic human rights authority alleging discrimination on the grounds of her son’s disability. This was unsuccessful because (according to the authority’s assessment) her son had been treated, as others in like situation, on the basis of his previous and expected future behaviour, and the contract was considered reasonable in the circumstances. When the matter came before the Committee it accepted the authority’s assessment, and the mother’s claim for discrimination on grounds of disability was unsubstantiated because she failed to demonstrate

229 Albareda v. Uruguay, CCPR/C/103/D/1637/2007, 1757 & 1765/2008, 24 October 2011 [9.3] [9.4]. Cf. M. Schmitz de Jong v. Netherlands, CCPR/C/72/D/855/1999, 16 July 2001 [7.2] (allowing a senior citizen’s partner’s pass only to those who reached the age of 60 (the author was only 44) to obtain an entitlement to various rate reductions as a partner of a pensioner above the age of 65 years was an objective criterion of differentiation). 230 Convention on the Rights of Persons with Disabilities, Resolution adopted by the General Assembly, 24 January 2007, A/RES/61/106. Frédéric Mégret describes how the Convention reformulates and extends existing human rights to take into account the specific rights experi ence of persons with disability in ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’, (2008) 30 Hum. Rts Q., p. 494.

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that the contract required by the school was not based upon reasonable and objective grounds.231 Discrimination against those with disabilities is common in employment and education232 (with some disabled children remaining entirely outside the education system),233 as well as in failure to provide adequate access to public buildings.234 The Committee urges reasonable accommodation in appropriate circumstances.235 It less commonly, but importantly, extends to the right of those with mental and intellectual disabilities to marry,236 or to vote,237 and in the denial of requests for naturalisation.238 Non-consensual hospitalisation239 and medical treatment are also issues addressed under Articles 7 and 17, as is enforced sterilisation.240 In some circumstances, the situation is aggravated by nonrecognition of intellectually disabled as persons before the law,241 and inadequate procedural and substantive safeguards to protect them from disproportionate restrictions in their enjoyment of Covenant rights.242 Neglectful conditions of institutional detention for the disabled affects Articles 7 and 10, in addition to Article 26.243

Miscellaneous A distinction was made in a healthcare programme in Canada for immigrants, which in Nell Toussaint v. Canada was found to violate Article 26, between those with legal status in the country and those in the situation of the author who had not been fully admitted to Canada, which resulted in healthcare coverage being denied to her. She had lawfully entered Canada as a visitor without obtaining residency status or permission to work and, given her serious medical conditions, the result of being denied access to the programme was a risk to her life or irreversible, 231 C v. Australia, CCPR/C/72/D/832/1998, 25 July 2001 [6.2]. 232 E.g., Dominican Republic CCPR/C/DOM/CO/6 (2017) 9; Mongolia CCPR/C/MNG/CO/6 (2017) 13; Serbia CCPR/C/SRB/CO/3 (2017) 16; Romania CCPR/C/ROU/CO/5 (2017) 19. 233 E.g., Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 31. 234 E.g., Jamaica CCPR/C/JAM/CO/4 (2016) 13; Cameroon CCPR/C/CMR/CO/5 (2017) 15; Mongolia CCPR/C/MNG/CO/6 (2017) 13; Romania CCPR/C/ROU/CO/5 (2017) 19; Belarus CCPR/C/BLR/CO/5 (2018) 21. 235 E.g., Serbia CCPR/C/SRB/CO/3 (2017) 17; Liechtenstein CCPR/C/LIE/CO/2 (2017) 17; Bulgaria CCPR/C/BGR/CO/4 (2018) 17. 236 E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 17. 237 E.g., Poland CCPR/C/POL/CO/7 (2016) 41; Australia CCPR/C/AUS/CO/6 (2017) 47; Pakistan CCPR/C/PAK/CO/1 (2017) 47; Bulgaria CCPR/C/BGR/CO/4 (2018) 17; Guatemala CCPR/C/ GTM/CO/4 (2018) 26. 238 E.g., Panama CCPR/C/PAN/CO/3 (2008) 8. 239 E.g. Azerbaijan CCPR/C/AZE/CO/4 (2016) 12. 240 E.g., Australia CCPR/C/AUS/CO/6 (2017) 23; Hungary CCPR/C/HUN/CO/6 (2018) 21; Lithuania CCPR/C/LTU/CO/4 (2018) 13. 241 E.g., Spain CCPR/C/ESP/CO/6 (2015) 10. 242 E.g., Bulgaria CCPR/C/BGR/CO/3 (2011) 17. 243 E.g., Argentina CCPR/C/ARG/CO/5 (2016) 21; Slovakia CCPR/C/SVK/CO/4 (2016) 20; Guatemala CCPR/C/GTM/CO/4 (2018) 26.

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negative consequences for her health. The Committee emphasised that States cannot make a distinction, for the purposes of respecting and protecting the right to life, between regular and irregular migrants.244 Migrant workers are prone to discrimination by way of forced labour, as are women and children.245 The differential treatment to which the author in Mellet v. Ireland was subjected failed to take account of her medical needs and socio-economic circumstances in violation of Article 26 against a background in Ireland in which women pregnant with a foetus with a fatal impairment who decided to carry the foetus to term continued to receive the full protection of the public healthcare system, while women like her who chose to terminate a non-viable pregnancy had to rely on their own financial resources, entirely outside the public healthcare system.246 Discrimination is also an issue in a number of countries against those with albinism,247 or those living with HIV/AIDS.248 In Switzerland, residence was the basis of discrimination at a time when marriage or partnership was prohibited with a person with no regular residence status there.249 The criminalisation of homelessness has also been an Article 26 issue.250 For differential treatment between minorities, and between minorities and the remaining part of the population see the chapter on Article 27.251

I M P L E M E N TAT I O N General Comment 18 acknowledges that it is for States to determine appropriate measures to implement Articles 2(1), 3 and 26, but the Committee expects to be informed about the nature of such measures and their conformity with the principles of non-discrimination and equality before the law and equal protection of the law.252 A recurring theme of the Committee’s review of periodic reports has been omissions from the coverage of domestic discrimination laws. It has pointed out 244 Toussaint v. Canada, CCPR/C/123/D/2348/2014, 24 July 2018 [11.7] [11.8]. 245 See chapter on Article 8: Slavery, Servitude and Forced or Compulsory Labour. 246 Mellet v. Ireland, CCPR/C/116/D/2324/2013, 31 March 2016 [7.10] [7.11]. See also Whelan v. Ireland, CCPR/C/119/D/2425/2014, 17 March 2017 [7.12]. 247 Burundi CCPR/C/BDI/CO/2 (2014) 9; Ghana CCPR/C/GHA/CO/1 (2016) 13; Congo CCPR/ C/COD/CO/4 (2017) 13; Swaziland CCPR/C/SWZ/CO/1 (2017) 22; Guinea CCPR/C/GIN/ CO/3 (2018) 17; Liberia CCPR/C/LBR/CO/1 (2018) 16. 248 Jamaica CCPR/C/JAM/CO/4 (2016) 19; Madagascar CCPR/C/MDG/CO/4 (2017) 15; Romania CCPR/C/ROU/CO/5 (2017) 17; Swaziland CCPR/C/SWZ/CO/1 (2017) 20; Turkmenistan CCPR/C/TKM/CO/2 (2017) 32; Bulgaria CCPR/C/BGR/CO/4 (2018) 15; El Salvador CCPR/C/SLV/CO/7 (2018) 9. 249 Switzerland CCPR/C/CHE/CO/3 (2009) 21. 250 Hungary CCPR/C/HUN/CO/6 (2018) 33. 251 See chapter on Article 27: Ethnic, Religious and Linguistic Minorities, section ‘Interaction between Article 27 and Other Covenant Provisions’. 252 GC 18 [4]. For affirmative action where appropriate, see GC 18 [10].

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where the prohibition of discrimination has not covered all the grounds enumerated in the Covenant.253 It has recommended comprehensive legislation covering all grounds.254 At times, it has emphasised that States should address the private sector,255 that more generally legislation should cover discrimination in all spheres of life,256 and extend to indirect discrimination.257 It has identified particular prohibited grounds as missing, such as race,258 race or national origin,259 sex,260 sexual orientation,261 gender identity,262 language,263

253 E.g., Romania A/34/40 (1979) 152; Iraq A/35/40 (1980) 125; Jamaica A/36/40 (1981) 257; Peru A/38/40 (1983) 261; New Zealand A/39/40 (1984) 166; Korea A/47/40 (1992) 514; Nepal CCPR/C/79/Add.42 (1994) 7; Turkey CCPR/C/TUR/CO/1 (2012) 8; Paraguay CCPR/C/PRY/ CO/3 (2013) 9; Austria CCPR/C/AUT/CO/5 (2015) 12; San Marino CCPR/C/SMR/CO/3 (2015) 8; Uzbekistan CCPR/C/UZB/CO/4 (2015) 6; Sweden CCPR/C/SWE/CO/7 (2016) 10. 254 E.g., Poland CCPR/CO/82/POL (2004) 16; Australia CCPR/C/AUS/CO/5 (2009) 12, 17; Mongolia CCPR/C/MNG/CO/5 (2011) 7; Iceland CCPR/C/ISL/CO/5 (2012) 6; Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 8; Korea CCPR/C/KOR/CO/4 (2015) 12, 13; Uzbekistan CCPR/C/ UZB/CO/4 (2015) 6; Costa Rica CCPR/C/CRI/CO/6 (2016) 10; Liechtenstein CCPR/C/LIE/ CO/2 (2017) 12; Madagascar CCPR/C/MDG/CO/4 (2017) 15; Pakistan CCPR/C/PAK/CO/1 (2017) 11; Switzerland CCPR/C/CHE/CO/4 (2017) 16; Turkmenistan CCPR/C/TKM/CO/2 (2017) 6; Bahrain CCPR/C/BHR/CO/1 (2018) 15; Belarus CCPR/C/BLR/CO/5 (2018) 16; El Salvador CCPR/C/SLV/CO/7 (2018) 9; Gambia CCPR/C/GMB/CO/2 (2018) 11; Lao CCPR/C/ LAO/CO/1 (2018) 15; Lebanon CCPR/C/LBN/CO/3 (2018) 11; Liberia CCPR/C/LBR/CO/1 (2018) 16; Sudan CCPR/C/SDN/CO/5 (2018) 16. 255 E.g., Switzerland CCPR/CO/73/CH (2001) 10; Italy CCPR/C/ITA/CO/6 (2017) 8, 9. 256 Iceland CCPR/C/ISL/CO/5 (2012) 6; Uzbekistan CCPR/C/UZB/CO/4 (2015) 6; Denmark CCPR/C/DNK/CO/6 (2016) 14; Sweden CCPR/C/SWE/CO/7 (2016) 10; Italy CCPR/C/ITA/ CO/6 (2017) 8. 257 E.g., Serbia CCPR/C/SRB/CO/3 (2017) 8. 258 E.g., Hungary A/35/40 (1980) 323; Korea CCPR/C/KOR/CO/4 (2015) 13. 259 E.g., Tanzania A/36/40 (1981) 208. 260 E.g., Jordan CCPR/C/JOR/CO/4 (2010) 7; Chile CCPR/C/CHL/CO/6 (2014) 11; Jordan CCPR/ C/JOR/CO/5 (2017) 8. 261 E.g., Turkey CCPR/C/TUR/CO/1 (2012) 8; HK SAR CCPR/C/CHN HKG/CO/3 (2013) 23; Paraguay CCPR/C/PRY/CO/3 (2013) 9; Ukraine CCPR/C/UKR/CO/7 (2013) 8; Austria CCPR/C/AUT/CO/5 (2015) 12; Cambodia CCPR/C/KHM/CO/2 (2015) 9; Korea CCPR/C/ KOR/CO/4 (2015) 13; Azerbaijan CCPR/C/AZE/CO/4 (2016) 8; Burkina Faso CCPR/C/BFA/ CO/1 (2016) 13; Denmark CCPR/C/DNK/CO/6 (2016) 13; Jamaica CCPR/C/JAM/CO/4 (2016) 15; Namibia CCPR/C/NAM/CO/2 (2016) 9; Poland CCPR/C/POL/CO/7 (2016) 13; Jordan CCPR/C/JOR/CO/5 (2017) 8; Turkmenistan CCPR/C/TKM/CO/2 (2017) 6; Swaziland CCPR/C/SWZ/CO/1 (2017) 18; Algeria CCPR/C/DZA/CO/4 (2018) 19; Belize CCPR/C/BLZ/ CO/1/Add.1 (2018) 11; Hungary CCPR/C/HUN/CO/6 (2018) 19. 262 E.g., Turkey CCPR/C/TUR/CO/1 (2012) 8; Paraguay CCPR/C/PRY/CO/3 (2013) 9; Ukraine CCPR/C/UKR/CO/7 (2013) 8); Austria CCPR/C/AUT/CO/5 (2015) 12; Cambodia CCPR/C/ KHM/CO/2 (2015) 9; Korea CCPR/C/KOR/CO/4 (2015) 13; San Marino CCPR/C/SMR/CO/3 (2015) 8; Azerbaijan CCPR/C/AZE/CO/4 (2016) 8; Burkina Faso CCPR/C/BFA/CO/1 (2016) 13; Denmark CCPR/C/DNK/CO/6 (2016) 13; Jamaica CCPR/C/JAM/CO/4 (2016) 15; Jordan CCPR/C/JOR/CO/5 (2017) 8; Swaziland CCPR/C/SWZ/CO/1 (2017) 18; Turkmenistan CCPR/C/TKM/CO/2 (2017) 6; Algeria CCPR/C/DZA/CO/4 (2018) 19; Belize CCPR/C/ BLZ/CO/1/Add.1 (2018) 11; Bulgaria CCPR/C/BGR/CO/4 (2018) 11; Hungary CCPR/C/ HUN/CO/6 (2018) 19. 263 E.g., Romania A/34/40 (1979) 152; Malta CCPR/C/MLT/CO/2 (2014) 8; Algeria CCPR/C/ DZA/CO/4 (2018) 19; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 11.

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religion,264 political or other opinion,265 social origin,266 property,267 birth,268 disability,269 marital status270 and age.271 It has reminded States they should take all measures against discrimination from private sources,272 and provide effective remedies against discrimination.273 The Committee has pointed out where the law does not provide same-sex couples the right to adopt children, or afford full legal protection to children living in same-sex families, and where access to in vitro fertilisation is denied.274 It has noted the absence of law that protects transgender persons’ right to legal recognition of their identity.275 As already noted, it has repeatedly recommended the repeal of laws which criminalise same-sex conduct. Discrimination in Japanese law concerning the inheritance entitlement of those born out of wedlock was said to be incompatible with Article 26 on grounds of equal protection of the law, and the Committee recommended legislative change.276 The omission of particular grounds of prohibited discrimination was raised in Jazairi v. Canada. The author claimed that the omission of political belief from the enumerated grounds of prohibited discrimination in the Ontario Code violated the Covenant. The Committee observed that not only does such absence of protection raise issues under the Covenant, it also suggests that the State may have failed to ensure that, in an appropriate case, there would be a remedy available to a victim of discrimination on political grounds in the field of employment. However, it went on to find the claim was factually unsubstantiated.277 Six 264 E.g., Korea A/47/40 (1992) 477; Austria CCPR/C/AUT/CO/5 (2015) 12; Poland CCPR/C/ POL/CO/7 (2016) 13; Australia CCPR/C/AUS/CO/6 (2017) 17; Algeria CCPR/C/DZA/CO/4 (2018) 19; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 11. 265 E.g., Ukrainian SSR A/34/40 (1979) 254; Hungary A/35/40 (1980) 323; Iraq A/35/40 (1980) 125; Poland A/35/40 (1980) 47; Trinidad and Tobago A/40/40 (1985) 120; El Salvador A/42/40 (1987) 168; Romania A/42/40 (1987) 306; Zaire A/42/40 (1987) 261; Poland CCPR/C/POL/ CO/7 (2016) 13; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 11. 266 E.g., Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 11. 267 E.g., Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 11. 268 E.g., Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 11. 269 E.g., Denmark CCPR/C/DNK/CO/6 (2016) 14; Jamaica CCPR/C/JAM/CO/4 (2016) 15; Poland CCPR/C/POL/CO/7 (2016) 13. 270 E.g., Jamaica CCPR/C/JAM/CO/4 (2016) 15. 271 E.g., Austria CCPR/C/AUT/CO/5 (2015) 12; Poland CCPR/C/POL/CO/7 (2016) 13. 272 E.g., Senegal A/35/40 (1980) 217 (in particular, against acts of discrimination committed by private individuals). See also GC 28 [4] and [31]; Franz Nahlik v. Austria, CCPR/C/57/D/608/ 1995, 22 July 1996 [8.2] (the State is under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi public sector of, for example, employment). 273 E.g., Denmark CCPR/C/DNK/CO/6 (2016) 13; Ukraine CCPR/C/UKR/CO/7 (2013) 8; Iceland CCPR/C/ISL/CO/5 (2012) 6; Sweden CCPR/C/SWE/CO/7 (2016) 11; Japan CCPR/C/JPN/ CO/6 (2014) 11; Serbia and Montenegro CCPR/CO/81/SEMO (2004) 23; Yemen CCPR/C/ YEM/CO/5 (2012) 12. 274 E.g., Italy CCPR/C/ITA/CO/6 (2017) 10. 275 E.g., Guatemala CCPR/C/GTM/CO/4 (2018) 6. 276 Japan CCPR/C/79/Add.28 (1993) 11; Japan CCPR/C/79/Add.102 (1998) 12. 277 Jazairi v. Canada, CCPR/C/82/D/958/2000, 26 October 2004 [7.4].

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dissenting Committee members considered that the fact that the law in Ontario did not hold political opinion to be a prohibited ground of discrimination constituted a violation of Article 26.278

C O N C L US I O N Articles 2(1) and 26 are of profound importance within the scheme of the Covenant. They operate together with Article 3 in different but overlapping spheres. The most confining aspect of Article 2(1) is that (like Article 3) it is accessory in nature, while Article 26 concerns equality before the law and, of much broader application, equal protection of the law, extending well beyond the subject matter of Covenant rights. Articles 2(1) and 26 have in common, among other things, the prohibited grounds of discrimination, and that excluded from both direct and indirect discrimination are, respectively, differentiation based on reasonable and objective criteria, and lack of differentiation which disproportionately affects those in a particular group, without reasonable and objective justification. Such threshold matters have become part of the constant jurisprudence of the Committee. The Committee has shown some inconsistency in its application of nondiscrimination provisions, particularly in areas such as social security benefits in its early jurisprudence, and a certain lack of currency with contemporary social standards. However, in recent years it has demonstrated marked flexibility, particularly concerning the enumerated grounds, even if it may be criticised for conservatism relative to advances in individual domestic systems. It now, more than before, places a heavy burden on the State Party to explain the reason for differentiation on enumerated grounds, and has been responsive in Concluding Observations in meeting various modern challenges. As the Committee faces each new issue, the challenge, particularly in its Concluding Observations, is to develop an approach that progressivley takes account of all rights at issue, and the interests at stake. Implementation by States is surprisingly incomplete given the fundamental nature of the non-discrimination provisions, and the persistence with which the Committee has pressed them over the years.

278 Individual Opinion (dissenting) of Committee members Ms Christine Chanet, Mr Maurice Glèlè Ahanhanzo, Mr Ahmed Tawfik Khalil and Mr Rajsoomer Lallah, Jazairi v. Canada, CCPR/C/82/D/958/2000, 26 October 2004 [6] [8].

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Article 27: Ethnic, Religious and Linguistic Minorities

INTRODUCTION PROPERTIES OF RELEVANT ‘MINORITIES’ AND THE SIGNIFICANCE OF ‘BELONGING’ THE ELEMENTS OF VIOLATION OF ARTICLE 27 RESOLUTION OF CONFLICT AFFECTING MINORITY GROUPS EVIDENTIAL ISSUES IMPLEMENTATION CONCLUSION

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Covenant Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Comparable Provisions in Other International Instruments European Convention: no counterpart (though minorities are included in Article 14: ‘association with a national minority’ as a prohibited ground of discrimination). American Convention on Human Rights: no counterpart. African Charter on Human and Peoples’ Rights: no counterpart.

INTRODUCTION Major Milestones The inclusion of Article 27 within the Covenant marked a new era for the protection of those belonging to minorities, well beyond that offered by the League of Nations, which sought to secure regional stability after the First World War but because of political failure lasted only until the 1930s.1 When 1 For minority protection in the League of Nations, see Athanasia Åkermark, Justifications of Minority Protection in International Law (Martinus Nijhoff, 1997), pt II; on successive phases of development of minority protection, see Gaetano Pentassuglia, Minority Groups and Judicial

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the Universal Declaration was adopted, the General Assembly was acutely aware that even that instrument provided no protection for minorities because of the ‘difficulties of adopting a uniform solution of this complex and delicate question, which has special aspects in each State in which it arises’. It therefore asked that the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities make a thorough study of the problem, in order that the UN may be able to take effective measures for the protection of racial, national, religious or linguistic minorities.2 This ultimately led to the inclusion of Article 27 in the Covenant. Since completion of the Covenant major advances were made in the practical understanding of the situations affecting those belonging to minorities in the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which expanded on the content of Article 27 rights,3 and the ensuing missions and other activities pursuant to the Special Rapporteur mandates concerning the rights of indigenous peoples, and on minority issues, created in 2001 and 2005. It is now acknowledged that, aside from other imperatives that justify the protection of minorities, ‘the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to political and social stability and peace and enrich the cultural diversity and heritage of society as a whole in the States in which such persons live’.4 Parallel developments affecting indigenous peoples include the 1989 ILO Indigenous and Tribal Peoples Convention,5 which aimed to remove the assimilationist orientation of earlier standards, and the 2007 Declaration on the Rights of Indigenous Peoples.6 Among initiatives within the Council of Europe the Framework Convention for the Protection of National Minorities is particularly important in producing binding provisions for the protection of those belonging to national minorities.7

2 3

4 5 6 7

Discourse in International Law: a Comparative Perspective (Martinus Nijhoff, 2009); for approaches towards minority protection after the Second World War as reflected in the drafting of the UN Charter, see Li Ann Thio, Managing Babel: the International Legal Protection Of Minorities in the Twentieth Century (Martinus Nijhoff, 2005), ch. 3. For a more general history of protection for minorities, see Yoram Dinstein, ‘Collective Human Rights of Peoples and Minorities’, (1976) 25(1) Int. Comp. L.Q., p. 102, at p. 113; Patrick Thornbury, International Law and the Rights of Minorities (Clarendon Press, 1993). A/RES/3/217 C, 10 December 1948. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 3 February 1992, A/RES/47/135. Caruso and Hofmann reviewed the Declaration after twenty years in Ugo Caruso and Rainer Hofmann, The United Nations Declaration on Minorities: An Academic Account on the Occasion of its 20th Anniversary (1992 2012) (Hotei Publishing, 2015). A/Res/58/182, 17 March 2004. ILO Indigenous and Tribal Peoples Convention, 27 June 1989, C169. UN Declaration on the Rights of Indigenous Peoples, Resolution, adopted by the General Assembly, 2 October 2007, A/RES/61/295. Framework Convention for the Protection of National Minorities, 1 February 1995, ETS 157 (the first legally binding multilateral instrument devoted to the protection of national minorities). See also European Charter for Regional or Minority Languages, 4 November 1992, ETS 148. Weller

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Article 27 is the only Covenant provision expressed in the negative form, ‘shall not be denied the right’. During the drafting of Article 27 a proposal that ‘the State shall ensure to national minorities the right’ was rejected out of concern that it might artificially awaken or stimulate minority consciousness. Notwithstanding that the final text may imply that the obligations of States are limited to permitting the free exercise of the rights of minorities,8 Article 27 recognises the existence of a ‘right’, and requires that it shall not be denied. The Committee has long recognised that ‘positive measures’ of protection may be required, aimed at correcting conditions which prevent or impair the enjoyment of that right, both as regards the treatment between different minorities, and between those belonging to minorities and the remaining part of the population.9 Interaction between Article 27 and Other Covenant Provisions Article 27 protects the rights of those belonging to ‘ethnic, religious or linguistic’ minorities to ‘enjoy their own culture, to profess and practise their own religion, or to use their own language’. The rights under Articles 1, 2(1), 26 and 27 are separate and independent, but provide cumulative protection in many instances.10 So connected in practice are the right of self-determination and minority protection, including through issues such as the exploitation of land resources of ancient cultural importance to particular communities, that States (and occasionally the Committee) often approach Article 40 obligations without clearly differentiating between those rights.11 A significant difference between the right to self-determination and minority protection is that Article 1 protects the rights of ‘peoples’ as such.12 Article 27 rights belong to the individual, like all rights in Part III of the Covenant, in spite of there being a collective dimension to Article 27 because they are enjoyed ‘in community with the other members of their group’.13

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10 11

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and Metzger offer a comparative analysis of principles and substantive rules in regional and international jurisprudence in Marc Weller and Barbara Metzger (eds), Universal Minority Rights: a Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press, 2007). A/2929 (1955), Ch.VI, p.63 [188]. General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/ Add.5 (GC 23) [6.1], [6.2], [9]. See also Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009 [7.2]; A/2929, (1955) Ch.VI, 63 [183] (there was agreement during the drafting of Art. 27 that while there were to be general prohibitions on discrimination (in Arts 2(1) and 26) differential treatment might be granted to minorities in order to ensure them ‘real equality of status’ with the other elements of the population). GC 23 [2]. E.g., Canada A/46/40 (1991) 50; Iraq A/47/40 (1992) 196; Mexico CCPR/C/79/Add.109 (1999) 19; Ethiopia CCPR/C/ETH/CO/1 (2011) 26. See also Romania A/34/40 (1979) 163. For exam ples of inadequate reporting against Art. 1, see chapter on Article 1: Self determination, section ‘Implementation’. See Article 1: Self determination, section ‘All Peoples: a Collective, Not Individual, Right’. GC 23 [3.1]. For Third Committee discussion whether protection should be accorded to indivi dual members of a minority group or to the group as such, see A/5000 (1961), p. 35 [122]. Tina

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There is close practical coincidence of Articles 2 and 26 with Article 27. For example, the Committee has often expressed concern at the discriminatory lack of proper access by minority members to health, education, employment and welfare services, including accommodation, and to full political participation, which affects their enjoyment of all Covenant rights;14 and it has pressed for information and recommended positive measures to address shortcomings in those spheres.15 Minorities are frequently exposed to xenophobia or persecution16 (including by Reuter distinguishes demands for protection (against extinction and discrimination, as well as claims focusing on the preservation of culture and ethnic identity of the group) from demands for empowerment (the authority to determine its own affairs, participation in state affairs, autonomy, and independence), in ‘Dealing with Claims of Ethnic Minorities in International Law’, (2008/9) 24 Conn. J. Int. L., p. 201. On the relationship between self determination and minority rights in international law, see Thornberry, ‘Self Determination, Minorities, Human Rights’, p. 867; Musgrave, Self determination and National Minorities; Nazila Ghanea Hercock, Alexandra Xanthaki and Patrick Thornberry (eds), Minorities, Peoples and Self determination: Essays in Honour of Patrick Thornberry (Martinus Nijhoff, 2005). In Anna Meijknecht’s consideration of minorities and indigenous peoples she suggests that obstacles to the development of ‘international personality’ for the former are of a political rather than of a sociological or juridical nature, in Towards International Personality: the Position of Minorities and Indigenous Peoples in International Law (Intersentia, 2001). 14 E.g., Ireland CCPR/C/79/Add.21 (1993) 553; Brazil CCPR/C/79/Add.66 (1996) 32 (health services and education); Australia CCPR A/55/40 (2000) 509 (exclusion and poverty); Ireland A/55/40 (2000) 449 (health, education and welfare services, including accommodation); Germany CCPR/CO/80/DEU (2004) 21 (housing and employment); Lithuania CCPR/CO/80/ LTU (2004) 8 (public life); Serbia and Montenegro CCPR/CO/81/SEMO (2004) 24 (health services, social assistance, education and employment); Albania CCPR/CO/82/ALB (2004) 21 and Albania CCPR/C/ALB/CO/2 (2013) 23 (housing, employment, education, social services and political life); Slovenia CCPR/CO/84/SVN (2005) 17 (health services, education and employment); Honduras CCPR/C/HND/CO/1 (2006) 19 (health, employment and education); Hungary CCPR/C/HUN/CO/5 (2010) 20 (education, housing, health, and political participation); Israel CCPR/C/ISR/CO/3 (2010) 24 (health structures, education, water and electricity); Poland CCPR/C/POL/CO/6 (2010) 7 (employment, housing and social services); Bulgaria CCPR/C/ BGR/CO/3 (2011) 7 (education, justice, employment, housing and commercial establishments); Slovakia CCPR/C/SVK/CO/3 (2011) 16 (education, housing, health, and political participation); Finland CCPR/C/FIN/CO/6 (2013) 17 (housing, education and employment); Czech Republic CCPR/C/CZE/CO/3 (2013) 9 (housing, forced evictions and territorial segregation); Macedonia CCPR/C/MKD/CO/3 (2015) 8 (public life); Australia CCPR/C/AUS/CO/6 (2017) 39 (over representation in prisons, with indigenous adults comprising 27 per cent of the overall prison population); Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) 39 (education, employment, housing); Honduras CCPR/C/HND/CO/2 (2017) 10 (political participation); Romania CCPR/C/ ROU/CO/5 (2017) 11 (health, education, employment and housing); Bulgaria CCPR/C/BGR/ CO/4 (2018) 13 (housing, education, healthcare and employment); Lao CCPR/C/LAO/CO/1 (2018) 39 (healthcare); Lithuania CCPR/C/LTU/CO/4 (2018) 7 (housing, healthcare, employ ment and education). 15 E.g., Australia A/43/40 (1988) 454; Uruguay CCPR/C/79/Add.19 (1993) 14; Netherlands CCPR/CO/72/NET (2001) 14; Greece CCPR/CO/83/GRC (2005) 18; Serbia CCPR/C/SRB/ CO/2 (2011) 22; Croatia CCPR/C/HRV/CO/3 (2015) 22. For positive measure in other areas, see, e.g., Switzerland CCPR/C/CHE/CO/4 (2017) 50 (insufficient number of stopping areas provided for persons leading a nomadic way of life). 16 E.g., Equatorial Guinea CCPR CCPR/CO/79/GNQ (2003) 14 (Bubi); Congo CCPR/C/COD/CO/ 3 (2006) 26 (Pygmies); Nicaragua CCPR/C/NIC/CO/3 (2008) 21 (peoples in the Autonomous Regions of the Atlantic coast); Rwanda CCPR/C/RWA/CO/3 (2009) 22 (Batwa community); Guatemala CCPR/C/GTM/CO/3 (2012) 10 (indigenous and Afro descent).

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officials),17 and violence,18 which is often met with inadequate investigation, prosecution of criminal acts and compensation.19 There is also the risk of discrimination in less conspicuous matters such as access to citizenship,20 or remedying situations of statelessness,21 and in conditions of widespread ethnic discrimination it becomes a matter of special concern when ethnic origin is entered in passports and identity documents.22 Article 27 is capable of being invoked concurrently with one or more other Covenant rights in circumstances amounting to the practical denial of the right to enjoy their own culture, profess or practise their own religion or use their own language, including (potentially): Article 3, in sexual violence against indigenous women in the context of land seizure;23 Article 6, if indigenous peoples are the victims of killing or acts of serious violence, whether by State or non-State actors,24 or genocide;25 Article 7, in torture and ill-treatment occurring amid ethnic conflict (in some cases involving unfair trials contrary to Article 14);26 Article 8, if child labour is extracted from vulnerable minority groups;27 Article 9, if members of minorities are selected for arbitrary detention, including for protesting against land leases and 17 E.g., Slovakia CCPR/C/SVK/CO/3 (2011) 8 (attacks by law officers against Roma). 18 E.g., Colombia CCPR/C/COL/CO/6 (2010) 25 (Afro Colombian and indigenous population groups); Cambodia CCPR/C/KHM/CO/2 (2015) 8 (ethnic Vietnamese); Venezuela CCPR/C/ VEN/CO/4 (2015) 21 (indigenous peoples). For a critique of the neglect of minorities during declared states of emergency, see Shane Darcy, ‘The Rights of Minorities in States of Emergency’, (2002) 9 Int. J. Minority & Group Rts, p. 345. 19 E.g., Croatia CCPR/C/HRV/CO/3 (2015) 9 (attacks on Roma and Serbians); Cameroon CCPR/C/ CMR/CO/5 (2017) 45, 46 (violence, harassment and threats against Pygmy and Mbororo communities); Congo CCPR/C/COD/CO/4 (2017) 49, 50 (abuses against Pygmy communities); Norway CCPR/C/NOR/CO/7 (2018) 16, 17 (hate crimes against Romani people/Tater, Roma, migrants, Muslims, Jews and Sami). 20 E.g., Croatia CCPR/C/HRV/CO/2 (2009) 16 (minority Roma and Serbs face difficulties in obtaining citizenship); Thailand CCPR/C/THA/CO/2 (2017) 43 (concern at the discrimination indigenous communities endure, including with regard to citizenship). 21 E.g., Syria CCPR/CO/84/SYR (2005) 19 (concern that large numbers of Kurds were treated as aliens or unregistered, with the recommendation to remedy their situation of statelessness). See also Kuwait CCPR/C/KWT/CO/3 (2016) 10 (the process of granting Kuwaiti citizenship to Bidoon people was slow). 22 E.g., Latvia CCPR CCPR/CO/79/LVA (2003) 21 (concern at the potentially negative effect of regulations regarding the entry of ethnic origin in passports and identity documents which the Committee recommended be abolished). 23 E.g., Bangladesh CCPR/C/BGD/CO/1 (2017) 17 (sexual violence against indigenous women related to land grabbing in the Chittagong Hills Tract). 24 Venezuela CCPR/C/VEN/CO/4 (2015) 21; Burkina Faso CCPR/C/BFA/CO/1 (2016) 41; Congo CCPR/C/COD/CO/4 (2017) 27. 25 E.g., Iraq CCPR/C/IRQ/CO/5 (2015) 19 (report that ISIL may have perpetrated genocide against the Yezidi community). 26 E.g., Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 14 (ethnic conflict in the south of Kyrgyzstan, including allegations of torture and ill treatment, serious breaches of fair trial standards, attacks on lawyers defending ethnic Uzbeks, and discrimination in access to justice based on ethnicity). See also Viet Nam CCPR/CO/75/VNM (2002) 19 (abundance of information regarding the treatment of the Degar (Montagnard) indicating serious violations of Arts 7 and 27). 27 E.g., Montenegro CCPR/C/MNE/CO/1 (2014) 19 (concern at the persistence of child labour, particularly among Roma Ashkali and Egyptians); Guatemala CCPR/C/GTM/CO/4 (2018) 10

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concessions;28 Article 12, if minorities are subjected to forcible relocation, eviction or displacement;29 Article 13, if refugee populations and asylum seekers are hosted by countries in which ethnic groups are at special risk of deportation without the necessary procedural safeguards,30 or are disproportionately affected by deportation to their countries of origin;31 Article 14, if members of minorities have inadequate access to justice;32 Article 17, in unlawful eviction and demolition of their homes (often with significant impact on their family and way of life as a minority);33 Article 18, if legislation prohibits preaching except in the national language,34 if religious minorities face obstacles to their legal recognition,35 if members of minorities are denied admission to school on grounds of their religion, they are harassed, or their places of worship are attacked,36 if minorities are unable to conduct burials in accordance with their

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(disproportionate impact of inadequate labour protection for indigenous workers; prevalence of child labour, especially among indigenous children). E.g., Lao CCPR/C/LAO/CO/1 (2018) 19, 39 (detention and enforced disappearance of Hmong members; reports of arbitrary arrest and detention of farmers and villagers protesting against land leases and concessions). E.g., Israel CCPR/C/ISR/CO/4 (2014) 9 (forcible transfer or displacement of Bedouins residing in West Bank or in the Negev desert); Congo CCPR/C/COD/CO/4 (2017) 49 (forced displace ment of Pygmy communities); Honduras CCPR/C/HND/CO/2 (2017) 46 (forced eviction of indigenous peoples from their ancestral lands); Lao CCPR/C/LAO/CO/1 (2018) 39 (number of ethnic minority communities). See also Australia A/38/40 (1983) 147 (control of residence, entry into and departure from Aboriginal reserves); Nicaragua A/38/40 (1983) 232 (transfer and relocation of several thousand Miskito Indians); Botswana CCPR/C/BWA/CO/1 (2008) 23 (insufficient access to ground water for those relocated from the Central Kalahari Game Reserve); Colombia CCPR/C/COL/CO/6 (2010) 23 (over 3.3 million subjected to forced dis placement; insufficient allocation of resources for Afro Colombians and indigenous people). E.g., Nepal CCPR/C/NPL/CO/2 (2014) 14 (while hosting a large number of refugees and asylum seekers identity documents were not provided to Tibetan refugees, placing them at risk of financial penalties for irregular entry or presence, detention, deportation and refoulement; restrictions were also imposed on other Tibetan refugees’ rights). See also Azerbaijan CCPR/ C/AZE/CO/4 (2016) 44 (reports that foreigners with Armenian surnames were prevented from entering regardless of their nationality). E.g., Germany CCPR/CO/80/DEU (2004) 21 (raised as an issue under Art. 26, rather than Art. 13). E.g., Guatemala CCPR/C/GTM/CO/3 (2012) 26 (inadequate geographical coverage of the judicial system; lack of interpreters to meet the needs of indigenous persons); Ecuador CCPR/ C/ECU/CO/6 (2016) 37 (lack of clear division of responsibilities between indigenous courts and ordinary courts). Georgopoulou et al. v. Greece, CCPR/C/99/D/1799/2008, 29 July 2010 [7.3] (the demolition of the authors’ shed and preventing the construction of a new home in a Roma settlement was in violation of Arts 17, 23 and 27 read alone and in conjunction with Art. 2(3)). For a detailed study of Roma, see Helen O’Nions, Minority Rights Protection in International Law: the Roma of Europe (Routledge, 2016). E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 35 (draft legislation targeting extremist religious groups). Belgium CCPR/C/79/Add.99 (1998) 25 (the procedures for recognising minority religions); Cyprus CCPR/C/CYP/CO/4 (2015) 24 (recognition only for those religious groups with mem bership of over 1,000); South Africa CCPR/C/ZAF/CO/1 (2016) 46 (recognition criteria affect ing indigenous communities). E.g., Sri Lanka CCPR/C/LKA/CO/5 (2014) 23 (attacks on Hindu, Muslim, Evangelical Christian and Jehovah’s Witness communities); Bulgaria CCPR/C/BGR/CO/4 (2018) 35 (vandalism of places of worship).

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faith,37 or to complete construction of places of worship,38 if Covenant rights are guaranteed only to certain religions,39 if particular minority religious groups are subjected to ill-treatment,40 or there is intolerance against particular religious or other minorities,41 or converts from the majority religion,42 an issue which also reaches into Article 19;43 Article 19 more broadly if counter-terrorism charges are brought against members of indigenous communities merely for protesting or demanding the protection of their rights,44 if indigenous peoples are not able to express themselves in their own languages and promote their cultures through media such as community radio stations,45 or laws criminalise the publication of material containing place names different from those officially allowed;46 Article 21, if peaceful demonstrations by minority communities are suppressed;47 Article 22, if registration is refused to associations of national minorities with ‘political objectives’;48 Article 23, in instances of arbitrary withholding of documentation such as marriage certificates from minorities;49 Article 24, in discrimination which persists against children from minority communities,50 if children from indigenous communities remain unregistered,51 if migrant children born to minority groups encounter unusual difficulty in acquiring 37 E.g., Romania CCPR/C/ROU/CO/5 (2017) 43. 38 E.g., Switzerland CCPR/C/CHE/CO/4 (2017) 42 (ban on the construction of new minarets). 39 E.g., Iran A/37/40 (1982) 316 (the Constitution guaranteed freedom of religion only to Islamic, Zoroastrian, Jewish and Christian religions and not to others such as the Baha’is). 40 E.g., Iran CCPR/C/IRN/CO/3 (2011) 24 (Baha’is subjected to arbitrary detention, false impri sonment, confiscation and destruction of property, denial of employment, benefits and higher education). 41 E.g., Slovakia CCPR/C/SVK/CO/4 (2016) 12 (ethnic minorities, notably Roma, Muslims and non citizens); Switzerland CCPR/C/CHE/CO/4 (2017) 20 (Muslim, Jewish and Roma); Norway CCPR/C/NOR/CO/7 (2018) 16 (Romani/Tater, Roma, migrants, Muslims, Jews and Sami). See also Belarus CCPR/C/BLR/CO/5 (2018) 17 (though Art. 20 not specified). 42 E.g., Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 22. 43 E.g., Senegal A/35/40 (1980) 213 (offence of ‘regionalist propaganda’ and of uttering ‘seditious shouts or chants’ not likely to fall withing Art. 20); Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 20 (hate speech and the attacks against Roma); Lithuania CCPR/C/LTU/CO/3 (2012) 15 (anti Semitic incidents); Turkey CCPR/C/TUR/CO/1 (2012) 2) (hate crimes against minorities, and on going and unpunished hate speech); Czech Republic CCPR/C/CZE/CO/3 (2013) 8 (an anti Roma climate remains prevalent); Japan CCPR/C/JPN/CO/6 (2014) 12 (widespread racist discourse against minority members such as Koreans, Chinese or Burakumin and insufficient protection). 44 E.g., Chile CCPR/C/CHL/CO/5 (2007) 7 (charges brought against members of the Mapuche community). 45 E.g., Guatemala CCPR/C/GTM/CO/4 (2018) 38. 46 E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 21 (the law standardising the use of geographical names criminalised the publication of material containing place names that were different from those specified in official documents). 47 E.g., Cameroon CCPR/C/CMR/CO/5 (2017) 45 (members of the English speaking minority were restricted in their rights to peaceful demonstration). 48 E.g., Bulgaria CCPR/C/BGR/CO/4 (2018) 35. 49 E.g., Kuwait CCPR/C/KWT/CO/2 (2011) 13 (withholding certificates for Bedoun). 50 E.g., Macedonia CCPR/C/MKD/CO/3 (2015) 21. 51 E.g., Panama CCPR/C/PAN/CO/3 (2008) 19; Paraguay CCPR/C/PRY/CO/3 (2013) 26; Costa Rica CCPR/C/CRI/CO/6 (2016) 37.

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nationality,52 or if the conditions of access to education fail to have due regard to the requirements of linguistic minorities;53 and Article 25 whenever members of minorities are affected by restrictions on their ability to vote,54 or (as is commonly the case) there is inadequate consultation of minorities on matters affecting them,55 and they are under-represented in the public service,56 regional government, representative bodies or parliament.57 Chapter Outline Because there was quite extensive debate in the drafting of Article 27 on the definition of minorities, and concern for the implications for countries with a significant migrant population, the first main section of this chapter is devoted to the characteristics of qualifying ‘minorities’ and the intended individual beneficiaries of Article 27. Issues of violation are considered next, in particular, how claims are determined given that Article 27 does not possess a limitation provision or other self-explanatory threshold for the denial of constituent rights. The greatest space is given to the section on the resolution of conflict affecting minority groups, because it is an unusual characteristic of Article 27 claims that they often involve conflict of different sorts: between the interests of a minority group and an individual member; between the interests of different factions within a minority; and between the minority group and private and State interests, particularly in the commercial exploitation of traditional land and other resources for which

52 E.g., Syria CCPR/CO/71/SYR (2001) 27 (Kurds born in Syria treated either as aliens or unregistered and encountered administrative and practical difficulties in acquiring Syrian nationality). 53 See section ‘Education’, below. 54 E.g., Nicaragua CCPR/C/NIC/CO/3 (2008) 20 (lack of remedy ensuring that indigenous and ethnic communities could take effective part in elections with due regard for their traditions, conventions and customs); Hungary CCPR/C/HUN/CO/5 (2010) 21 (obligatory for minorities to register their ethnic identity, which deterred those who did not wish their ethnic identity to be known, or who had multiple ethnic identities, from registering in elections); Cyprus CCPR/C/ CYP/CO/4 (2015) 22 (changes to electoral law requiring Turkish Cypriots to register were not disseminated and translated into their language); Pakistan CCPR/C/PAK/CO/1 (2017) 47 (the removal of Ahmadis from the general electoral list and their registration on a separate voting list). On the influence of democracy as a legal obligation and the role of international law in the resolution of culture conflicts, see Steven Wheatley, Democracy, Minorities and International Law (Cambridge University Press, 2005). 55 E.g., Australia CCPR/C/AUS/CO/5 (2009) 13; Mexico CCPR/C/MEX/CO/5 (2010) 22; Guatemala CCPR/C/GTM/CO/3 (2012) 27; Chile CCPR/C/CHL/CO/6 (2014) 10; Costa Rica CCPR/C/CRI/CO/6 (2016) 41; New Zealand CCPR/C/NZL/CO/6 (2016) 45. 56 E.g., Togo CCPR/C/TGO/CO/4 (2011) 21; Turkmenistan CCPR/C/TKM/CO/1 (2012) 22; Cyprus CCPR/C/CYP/CO/4 (2015) 23; Serbia CCPR/C/SRB/CO/3 (2017) 40. 57 E.g., Colombia A/47/40 (1992) 378 (Constituent Assembly); Croatia CCPR/C/HRV/CO/2 (2009) 18 (local and regional government); Kazakhstan CCPR/C/KAZ/CO/1 (2011) 28 (houses of parliament); Tajikistan CCPR/C/TJK/CO/2 (2013) 25 (houses of parliament); Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 27 (political and public institutions); Honduras CCPR/C/HND/CO/ 2 (2017) 10 (representative political bodies or the Government).

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a minority depends. Finally, this chapter addresses miscellaneous evidential issues and matters concerned with domestic implementation.

PR O PE RTIE S O F R EL EVA N T ‘M I N O R I T I E S ’ A N D T H E SI G N I F I C A N C E O F ‘B E L O N G I N G ’ Meaning of ‘Minority’ In order to qualify for Article 27 protection an individual must be a member of an ‘ethnic, religious or linguistic’ minority. It is sufficient that the minority possesses only one of those characteristics, and as a result is distinct from the majority within a State, though in practice many minorities enjoy more than one. The existence of an ethnic, religious or linguistic minority is to be established by objective criteria.58 During debate on the meaning of ‘minorities’ a number of protectionist viewpoints were advanced. It was suggested in the Commission on Human Rights that the provision should not be applied either to encourage the creation of new minorities, or to obstruct the process of assimilation,59 but as discussion resumed in the Third Committee the accent was more clearly on the need for assimilation to be voluntary.60 The Committee certainly requires there to be no force in assimilation and has expressed concern when reviewing State reports at allegations of a forced assimilation policy.61 In the Third Committee many delegations representing countries of significant immigration argued that those of similar background who entered their territories voluntarily, through a gradual process of immigration, could not be regarded as minorities, as this would endanger the national integrity of the receiving States, and that while they were free to use their own language and follow their own religion, they were expected to become part of 58 GC 23 [5.2]. See also J.G.A. Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.6] and Individual Opinion of Elizabeth Evatt and Cecilia Medina Quiroga (concurring). 59 A/2929 (1955), Ch.VI, p. 63 [186]. 60 A/5000 (1961), p. 35 [122] (members of minority groups should not be deprived of the rights enjoyed by other citizens, so as to enable them to integrate if they so wish). For relevant comments in the reporting process, see, e.g., Venezuela CCPR A/48/40 (1993) 294, 298 (concern expressed over the government’s desire to integrate indigenous groups, which might conflict with their right to enjoy their own culture); Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 27 (noting efforts to integrate minorities into political and public life); Latvia CCPR/C/LVA/CO/3 (2014) 7 (the State should facilitate the integration of linguistic minorities into society). 61 E.g., UK (Belize) A/34/40 (1979) 328 (assimilation by a policy designed to suppress the Spanish language would constitute a violation of Art. 27); Turkmenistan CCPR/C/TKM/CO/1 (2012) 22 (concern at alleged forced assimilation policy of ‘Turkmenisation’, which seriously reduced opportunities for ethnic minorities in the fields of employment, education and political life). For questioning on the issue of assimilation, see, e.g., Canada A/35/40 (1980) 176; Costa Rica A/35/ 40 (1980) 368; Australia A/38/40 (1983) 156; Nicaragua A/38/40 (1983) 238; Gambia A/39/40 (1984) 343.

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the national fabric. They argued that Article 27 should not be invoked to justify the undermining of national unity of any State.62 Several delegations also identified ‘existing’ minorities as groups which had succeeded in maintaining their separate identities and urged that the article should not be used to encourage the emergence of new minorities.63 The ultimate text of Article 27 is concerned simply with whether ethnic, religious or linguistic minorities ‘exist’, without reference to any ‘degree of permanence’. Protection is available to all ‘persons’ belonging to such a group who share in common a culture, religion and/or a language. They need not be citizens and may therefore be migrants or visitors.64 This is supported by the fact that the only instance of rights being confined to citizens is expressly stated, in Article 25.65 A ‘minority’ must be a numerical minority within the State concerned, even if it constitutes a majority within a particular province.66 So the Committee decided when the English-speaking minority in Québec in Ballantyne et al. v. Canada unsuccessfully objected to the prohibition on commercial advertising in English. English-speaking citizens of Canada did not constitute a linguistic minority.67 Ms Elizabeth Evatt, and those co-signing her Individual Opinion, considered this approach to be unduly foreclosing, and preferred that an ethnic, linguistic or cultural minority in an autonomous province of the State should not be excluded from protection.68 Mr Bertil Wennergren also considered that the issue of what constitutes a minority in a State must be decided more flexibly, on a case-by-case basis, due regard being given to the particular circumstances.69 62 A/5000 (1961), p. 35 [120]. 63 A/5000 (1961), p. 35 [122]. See Carmi, ‘Immigration Policy: Between Demographic Considerations and Preservation of Culture’, p. 1, for an assessment of mass immigration that could change the relation existing between majority and minority groups within the State. 64 GC 23 [5.2]. See, e.g., Mali A/36/40 (1981) 241, 251 (Malian nationality was the overriding criterion for equality of rights without discrimination (Art. 27)); Japan A/37/40 (1982) 75 (questioning whether immigrants could acquire minority status); Netherlands A/44/40 (1989) 227; Norway CCPR/C/79/Add.27 (1993) 11 (by virtue of Art. 2(1), Art. 27 rights cannot be restricted to nationals); Japan CCPR/C/79/Add.102 (1998) 13 (Art. 27 protection may not be restricted to citizens); Kuwait CCPR/C/KWT/CO/2 (2011) 31 (concern at the lack of protection of foreign nationals who belong to ethnic, religious or linguistic minorities); Latvia CCPR/C/ LVA/CO/3 (2014) 7 (concern at the status of ‘non citizen’ residents). 65 GC 23 [5.1]. Article 13 is the only right specific to aliens. 66 Numerical inferiority is one of the indicia of minorities adopted in the 1979 study by Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (United Nations, 1991). 67 Ballantyne et al. v. Canada, Communications Nos 359/1989 and 385/1989, CCPR/C/47/D/359/ 1989 and 385/1989/Rev.1 (1993), 31 March 1993 [11.2]. 68 Individual Opinion by Ms Elizabeth Evatt in Ballantyne et al. v. Canada, Communications Nos 359/1989 and 385/1989, CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993), 31 March 1993, co signed by Messrs Nisuke Ando, Marco Tulio Bruni Celli and Vojin Dimitrijevic (concurring and elaborating). 69 Individual Opinion by Mr Bertil Wennergren in Ballantyne et al. v. Canada, Communications Nos 359/1989 and 385/1989, CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993), 31 March 1993 (concurring).

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From the Committee’s periodic review process it would appear many States deny even the existence within their country of any minorities,70 prompting pointed questioning by the Committee, for example, about the Berbers in Algeria;71 Mapuche in Chile;72 Baka people in Gabon;73 Roma in Italy;74 the ‘scheduled tribes’ in India;75 Koreans, Chinese, the Ainus, the Burakumin and the people of Okinawa in Japan;76 and large national groups (Portuguese, Italians, French, Germans and Belgians) in Luxembourg.77 Some States deny the existence of only some, such as religious minorities;78 or impose strict conditionality on recognition of minorities, such as Hungary, which required a qualifying minority or ethnic group to have lived in the territory for at least one century;79 or define minorities as ethnic or linguistic groups which have a traditional area of settlement in particular regions.80 Some States assert that minorities are so integrated into the country’s culture that they cannot be considered to be minorities.81 Others recognise only certain minorities (such as the Schleswig-Holstein in Germany, Italians and Hungarians in Slovenia, Kazakh in Mongolia),82 or are reluctant to recognise particular minorities, such as the Traveller community in Ireland.83 The selfidentification of a group is important and something to which the State should pay particular attention.84

70 See Committee questioning and observations concerning failure to acknowledge the existence of minorities, e.g., Gambia A/39/40 (1984) 343, 361; Luxembourg A/41/40 (1986) 76; Zaire A/42/ 40 (1987) 289 (State comment that it was difficult to speak of the existence of ethnic minorities in Zaire and those who did so were often acting for political reasons); Senegal CCPR A/53/40 (1998) 66; Uruguay CCPR/C/79/Add.90 (1998) 12; Kuwait CCPR/CO/69/KWT (2000) 14; San Marino CCPR/C/SMR/CO/2 (2008) 16 (Committee observation that the identification of mino rities is not so much a matter of policy or law as one of fact). 71 Algeria A/47/40 (1992) 276. 72 Chile A/34/40 (1979) 106. 73 Gabon CCPR/CO/70/GAB (2000) 17. 74 Italy CCPR/C/ITA/CO/5(2006) 15(e). 75 India A/39/40 (1984) 267. 76 Japan A/37/40 (1982) 75, 91 (Japan understood that ‘minority’ meant a group of nationals who ethnically, religiously or culturally differed from most other nationals); Japan CCPR/C/JPN/CO/ 5 (2008) 32; Japan CCPR/C/JPN/CO/6 (2014) 26 (lack of recognition of the Ryukyu and Okinawa). 77 Luxembourg A/41/40 (1986) 76. 78 Germany (GDR) A/33/40 (1978) 168. 79 Hungary CCPR/C/HUN/CO/5 (2010) 22. 80 Germany CCPR/C/79/Add.73 (1996) 13. 81 Dominican Republic CCPR/CO/71/DOM (2001) 20. See also Senegal A/42/40 (1987) 218, 219 (the population was so intermingled ethnically and culturally that many Senegalese did not quite know to which of the seven ethnic groups they belonged); Algeria A/47/40 (1992) 276 (assertion that the Algerian people was characterised by homogeneity). 82 Germany (FRG) A/41/40 (1986) 307 (the Danish ethnic group in Schleswig Holstein); Slovenia CCPR/C/79/Add.40 (1994) 12 (Italians and Hungarians were singled out for special protection as minorities, including the right to political representation); Mongolia CCPR/C/79/Add.120 (2000) 17 (recognition only of Khazakhs as an ethnic, religious or linguistic minority). 83 Ireland CCPR/C/IRL/CO/3 (2008) 23 (concern that the State did not intend to recognise the Traveller community as an ethnic minority). 84 Denmark CCPR/C/DNK/CO/5 (2008) 13 (concern that a Supreme Court did not recognise the Thule Tribe of Greenland as a separate group capable of vindicating its traditional rights, despite the tribe’s own perception to the contrary).

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Ethnic Minorities The right of members of a minority to enjoy their culture under Article 27 is most often contested before the Committee when a particular way of life associated with the use of land resources, such as hunting and fishing, is threatened by economic exploitation of those resources, especially in the case of indigenous peoples.85 As the Committee has said on many occasions, the regulation of an economic activity is normally a matter for the State alone but where that activity is an essential element in the culture of an ethnic community, its application to an individual may fall under Article 27.86 Petitions authored by members of indigenous peoples have concerned deprivation of the right to live on a reserve (Lovelace v. Canada (Maliseet Indian)),87 environmental destruction undermining the group’s economic base (Chief Ominayak and the Lubicon Lake Band v. Canada),88 interference with traditional forms of grazing rendering them unviable (Kitok v. Sweden (Sami);89 Länsman v. Finland cases (Sami);90 Poma Poma v. Peru (Aymara)),91 and restriction of fishing rights through regulation (Mahuika v. New Zealand (Maori);92 George Howard v. Canada (Hiawatha)).93 As discussed further below, these claims have enjoyed mixed success. Indigenous groups represent only one type of ethnic minority. As Nowak explains, the term ‘ethnic’ covers cultural and historical elements, and is therefore broader than ‘racial’, which mainly relates to biological, physically recognisable or genetic features.94 Context is crucial to determining the right to enjoy one’s culture, a point made clearly in Mhuika v. New Zealand when the Committee closely examined the various effects of legislation settling the traditional fishing rights of Maori, and the possibilities for Maori to engage in commercial and non-commercial fishing.95 It also issued an important reminder in Kalevi Paadar et al. v. Finland that violation 85 J.G.A. Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.6]; GC 23 [7]. Michael Addo discusses the relationship between cultural diversity and universal respect for human rights in Addo, ‘Practice of United Nations and Human Rights Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights’, p. 601. 86 Ivan Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.2]; Länsman v. Finland, CCPR/ C/52/D/511/1992, 26 October 1994 [9.2]; Apirana Mahuika et al. v. New Zealand, CCPR/C/70/ D/547/1993, 27 October 2000 [9.3]. 87 Sandra Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981. 88 Chief Ominayak and the Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 26 March 1990. 89 Ivan Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988. 90 Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994; Jouni E. Länsman et al. v. Finland, CCPR/C/58/D/671/1995, 30 October 1996. 91 Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009. 92 Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000. 93 George Howard v. Canada, CCPR/C/84/D/879/1999, 26 July 2005. 94 Nowak, CCPR Commentary, p. 649. 95 Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.4].

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may subsist in the cumulative effect of measures affecting rights under Article 27, even if different activities in themselves may not.96 This was in keeping with the Committee’s warning in a number of similar cases about the compounding effect of individual activities in eroding the rights of a minority group to enjoy their own culture.97 As to the enjoyment of ‘culture’, this is not a static concept, and may evolve without necessarily losing the protection of Article 27. For example, in the Länsman cases the Committee gave some reassurance that Article 27 not only protects traditional means of livelihood of national minorities, but also adaptations to methods of reindeer herding made by the authors over the years, including by the use of modern technology.98 Linguistic Minorities The Committee was initially cautious about making Article 27 findings of violation based on the enjoyment of language where other Covenant provisions offered a means for more convenient disposition.99 In Ballantyne et al. v. Canada the English-speaking minority in Québec failed in their Article 27 claim because they represented a majority country-wide, but the Committee did find a violation of Article 19(2) because it was not necessary, in order to protect the vulnerable position in Canada of the francophone group, to prohibit commercial advertising in English.100 The use of language is therefore clearly an aspect of Article 19 regardless of membership of a minority. A language prohibition was also the subject of Diergaardt et al. v. Namibia. English was made the only official language in Namibia, unless legislation provided otherwise, and the authors claimed that the lack of such legislation meant they were denied the use of their mother tongue (Afrikaans) in administration, justice, education and public life. Civil servants were instructed not to reply to the authors’ written or oral communications (including telephone calls) in Afrikaans, even when they were perfectly capable of doing so. As this intentionally targeted the use of Afrikaans when dealing with public authorities the Committee found a violation, not of Article 27, but of Article 26.101 96 Kalevi Paadar et al. v. Finland, CCPR/C/110/D/2102/2011, 26 March 2014 [7.7]. 97 E.g., Jouni E. Länsman et al. v. Finland, CCPR/C/58/D/671/1995, 30 October 1996 [10.7]. 98 Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.3]. See also Ivan Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.3]. 99 On the origins of the Western tradition of linguistic rights and how different national traditions have given institutional recognition to linguistic minorities, see Douglas Kibbee, ‘Minority Language Rights: Historical and Comparative Perspectives’, (2008) 3 Intercultural HRLR, p. 79. 100 Ballantyne et al. v. Canada, CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993), 31 March 1993 [11.4]. 101 J.G.A. Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [10.10]. For detailed discussion of this case, see Alexander Morawa, ‘Minority Languages and Public Administration: A Comment on Issues Raised in Diergaardt et al. v. Namibia’, ECMI Working Paper 16, October 2002.

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More recently the language-based Article 27 claim in Mavlonov and Sa’di v. Uzbekistan succeeded when registration procedures resulted in cancellation of the right to publish the newspaper Oina, of which one author was the editor and the other a regular reader. The newspaper was written almost exclusively in Tajik, principally for a Tajik audience, and was the only non-governmental Tajik-language publication in the Samarkand region of Uzbekistan. Oina was published bi-weekly and distributed to dozens of schools that used Tajik as the language of instruction. Its purpose was to assist Tajik-language students and youth in their education, to promote a spirit of tolerance and respect for human values, and to assist in their intellectual and cultural development. It covered reports on events and matters of cultural interest and included samples of students’ work. It also detailed particular difficulties facing the continued provision of education to Tajik youth in their own language, including shortages of Tajik-language textbooks, low wages for teachers and the forced opening of classes using Uzbek as the language of instruction in some schools where Tajik had previously been the only language of instruction. The Committee applied the Länsman I test, discussed further below, whether the challenged restriction had an ‘impact . . . [so] substantial that it does effectively deny to the [complainants] the right to enjoy their cultural rights’, and found a violation of Article 19, and Article 27 read together with Article 2, given that the use of a minority language press was an essential element of the Tajik minority’s culture in Uzbekistan, as a means of airing issues of significance and importance to it. In the context of Article 27, ‘education in a minority language is a fundamental part of minority culture’.102 This signals greater readiness than was evident in Ballantyne and in Diergaardt to uphold Article 27 linguistic claims. Diergaardt was still valuable for clarifying the Article 14 implications of restrictions on language usage in courts. The authors claimed that their being forced to use English during court proceedings, when not their mother tongue, was a violation of Article 14(1). The Committee disagreed, because the authors failed to show how it affected their right to a fair hearing.103 In M.K. v. France the Committee similarly had to determine the impact on the author of being obliged to use French (rather than his preferred Breton) to institute legal proceedings. Since he had demonstrated his proficiency in French, it would not be unreasonable for him to submit his claim in French to the French courts. The Committee was unpersuaded by his argument that he was not sufficiently acquainted with French legal terminology to prepare submissions, because the same difficulty is faced by citizens in all countries, even when using their mother tongue, and is the principal reason for seeking professional legal assistance.104 102 Mavlonov and Sa’di v. Uzbekistan, CCPR/C/95/D/1334/2004, 19 March 2009 [8.7] (relying on Länsman et al. v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.5]). 103 Ibid. [10.9]. 104 M.K. v. France, CCPR/C/37/D/222/1987, 8 November 1989 [8.4]. See also K. v. France, CCPR/C/37/D/220/1987, 8 November 1989.

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Article 14(3)(f) gives any criminally accused person the right to the free assistance of an interpreter when they cannot understand or speak the language used in court, but as the Committee has confirmed, it does not in any other circumstances confer on the accused the right to use or speak the language of their choice in court proceedings.105 The use of one’s name by members of minorities is protected under Article 17, as indicated by Raihman v. Latvia, though it is less clear whether it is also protected by Article 27. The author was a member of the Jewish and Russian-speaking minorities in Latvia and had used the name ‘Leonid Raihman’ all his life (his surname had been used by three generations before him). When he was issued a Latvian passport and received Latvian citizenship, without his consent his names were changed to the non-Russian, non-Jewish form of ‘Leonīds Raihmans’. This was found to be in violation of Article 17 because the forceful addition of a declinable ending to a surname which had been used in its original form for decades, and by modifying its phonic pronunciation, was an intrusive measure, not proportionate to the aim of protecting the official State language. Having made that finding the Committee did not consider it necessary to address whether the same facts amounted to a violation of Article 27.106 In a separate Opinion Mssrs Rafael Rivas Posada and Krister Thelin would have found there was no violation of Article 27, relying on the threshold in Länsman I, allowing regulation of activities that constitute an essential element in the culture of a minority, provided that it does not amount to a de facto denial of the right.107 Education can play an influential role in supporting ethnic minorities, and indeed this aspect of the Article 27 claim in Mavlonov and Sa’di v. Uzbekistan can only have aided its success. The 1960 UNESCO Convention Against Discrimination in Education Article 5(1)(c) is relevant to both the cultural and linguistic facets of Article 27 and states that ‘[i]t is essential to recognize the right of members of national [i.e., cultural] minorities to carry on their own educational activities, including the maintenance of schools’. However, there are three qualifications: that this right is not to prevent the members of these minorities from understanding the culture and language of the community as a whole; that the 105 GC 23 [5.3]. 106 Leonid Raihman v. Latvia, CCPR/C/100/D/1621/2007, 28 October 2010 [8.3] [8.4]. See also Bulgakov v. Ukraine, CCPR/C/106/D/1803/2008, 29 October 2012 [7.2] [7.3] (the Committee did not examine Art. 27 separately after finding a violation of Art. 17 in the imposition of a Ukrainian spelling for the author’s first name and patronymic in his identity documents); Latvia CCPR/C/LVA/CO/3 (2014) 7 (concern at the impact of the language policy, including the right to choose and change one’s own name); Morocco CCPR/C/MAR/CO/6 (2016) 49 (difficulties in registering the Amazigh first names of children). 107 Individual Opinion of Committee members Mr Rafael Rivas Posada and Mr Krister Thelin (dissenting) in Raihman v. Latvia, CCPR/C/100/D/1621/2007, 28 October 2010.

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standard of education is not to be lower than the general standard; and that attendance at such schools is optional.108 When the Permanent Court of International Justice in Minority Schools in Albania had to consider the threatened closure of all private schools throughout the country it found that private schools were indispensable for a minority. Because they alone could satisfy special needs their abolition was an infringement of the rights of minorities.109 Dinstein suggests that the central issue is not the use or the teaching of a language, but the cultural content and substance of education. ‘Experience – for instance, of Soviet Jewry – shows that what really counts is not whether members of an ethnic minority can get education in their own language, but whether they can study their cultural heritage in any language. It is often better to have history books or Holy Scripture in translation than to have barren grammar books in the original.’110 The Committee touched on certain funding aspects of religious schooling in Waldman v. Canada, which are relevant to minorities, including linguistic minorities. The author succeeded in his Article 26 claim because of the differential treatment in the State funding of religious institutions, when funding was available for Roman Catholic schools as part of the public education system but not for Jewish schools. Even though nothing obliges a State to provide public funding to religious schools, if it chooses to do so it must make the funding available without discrimination. The author argued that the same facts also constituted a violation of Articles 18 and 27, read in conjunction with Article 2(1), because Jewish schools formed an essential link in preserving community identity and the survival of minority religious groups. However, the Committee did not make any separate findings under those provisions because they did not give rise to any additional issue.111 Article 4(3) of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities is couched in more positive terms than Article 27, to the effect that States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue. Under Article 5(1) national policies and programmes are to be planned and implemented with due regard for the legitimate interests of those belonging to minorities. 108 UNESCO Convention Against Discrimination in Education, 14 December 1960, entered into force 22 May 1962, Art. 5(1)(c). 109 Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6). 110 Dinstein, ‘Collective Human Rights of Peoples and Minorities’, pp. 119 20. 111 Waldman v. Canada, CCPR/C/67/D/694/1996, 3 November 1999 [10.6] [10.7]. See also Belgium CCPR/C/79/Add.99 (1998) 25 (the rules for public funding of recognised religions raised problems under Arts 18, 26 and 27); Luxembourg CCPR/CO/77/LUX (2003) 7 (the State granted financial assistance to the Christian and Jewish communities only, and applied dis criminatory criteria); Bulgaria CCPR/C/BGR/CO/4 (2018) 35 (concern that foreign funding for religious groups prohibited).

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The Committee has addressed numerous dimensions of the rights of minorities in the education sector. It expressed concern at de facto segregation of children of minorities,112 and the exclusion of minority children by placing them in separate classes,113 including special needs classes meant for pupils with psychological disabilities.114 It has been keen for those in minorities to have the opportunity to access education in their language.115 It has also identified restrictions and conditions on the use of minority languages in schools.116 Regarding the treatment of minority schools, it has expressed concern at the non-recognition of minority schools,117 it has noted where funding policies produced lower subsidies for schools that taught the language of minorities,118 and it has observed other forms of lack of support for minority schools.119 It has commented that inside and outside the school system instruction should be available for children in their own language and culture.120 It has also spotted instances of limited availability of minority language media.121 The Committee has been concerned at decline in the use of minority languages,122 at the inappropriate use of language proficiency requirements for work,123 or measures which prevent minorities using their own language when dealing with administrative and judicial authorities, for example, by compulsory

112 E.g., Slovakia CCPR/C/SVK/CO/3 (2011) 17; Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 21; Czech Republic CCPR/C/CZE/CO/3 (2013) 10; Romania CCPR/C/ROU/CO/5 (2017) 11. 113 E.g., Latvia CCPR/C/LVA/CO/3 (2014) 21 (this prevented them from receiving an equal quality of education and limited their professional opportunities). 114 E.g., Slovakia CCPR/C/SVK/CO/3 (2011) 17; Finland CCPR/C/FIN/CO/6 (2013) 17; Slovakia CCPR/C/SVK/CO/4 (2016) 18. 115 E.g., Italy A/36/40 (1981) 130; Macedonia CCPR/C/MKD/CO/2 (2008) 19; Mongolia CCPR/ C/MNG/CO/5 (2011) 27; Japan CCPR/C/JPN/CO/6 (2014) 26; Kyrgyzstan CCPR/C/KGZ/CO/ 2 (2014) 27; Morocco CCPR/C/MAR/CO/6 (2016) 49; Norway CCPR/C/NOR/CO/7 (2018) 36. See also (less direct but relevant) Mexico A/38/40 (1983) 80; Peru A/38/40 (1983) 274; Yugoslavia A/39/40 (1984) 235; Armenia CCPR/C/79/Add.100 (1998) 22; Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) 21. See also Latvia CCPR/C/LVA/CO/3 (2014) 20 (decrease of measures in support of teaching minority languages and cultures in minority schools). 116 E.g., Iran CCPR/C/IRN/CO/3 (2011) 30 (Kurd, Arab, Azeri and Baluch use of minority languages in schools). 117 E.g., Japan CCPR/C/79/Add.102 (1998) 31 (concern about discrimination against members of the Japanese Korean minority, including the non recognition of Korean schools). 118 E.g., Japan CCPR/C/JPN/CO/5 (2008) 31. See also questioning of Ireland CCPR A/48/40 (1993) 572. 119 E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 23 (consider establishing a Turkish school in Limassol). 120 E.g., Kosovo CCPR/C/UNK/CO/1 (2006) 22; Austria CCPR/C/AUT/CO/4 (2007) 21. 121 E.g., Iran CCPR/C/IRN/CO/3 (2011) 30; Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) 27. See also Poland A/35/40 (1980) 60. 122 E.g., Australia A/43/40 (1988) 454; Canada CCPR/C/CAN/CO/5 (2006) 10; Canada CCPR/C/ CAN/CO/6 (2015) 19; Croatia CCPR/C/HRV/CO/3 (2015) 22. 123 E.g., Estonia CCPR/CO/77/EST (2003) 16 and Estonia CCPR/C/EST/CO/3 (2010) 16; Latvia CCPR/C/LVA/CO/3 (2014) 7.

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use of the official language.124 More confined restrictions of concern include the prohibition on the use of names by private groups or associations (such as in Greece the appellation ‘Turk’ or ‘Macedonian’),125 or against publishing material containing place names different from those specified in official documents.126 Out of concern for the needs of linguistic minorities the Committee has also noted the limited use of public signs in the language of substantial minorities, in areas where they exist, including road signs.127 Religious Minorities Unlike the rights of members of ethnic minorities ‘to enjoy their own culture’, or of linguistic minorities to ‘use their own language’, which have no direct counterpart in other Covenant provisions, the right to profess and practise one’s own religion is particularly closely aligned with the right in Article 18 ‘either individually or in community with others . . . to manifest his religion or belief in worship, observance, practice and teaching’. The Article 27 right differs from its Article 18 analogue in that it contains no explicit limitation (equivalent to Article 18(3)), and also it is enjoyed ‘in community with other members of their group’ (rather than both ‘individually’ and ‘in community with others’ under Article 18). The two provisions also serve different purposes, as General Comment 23 remarks, the rights in Article 27 ‘depend . . . on the ability of the minority group to maintain its culture, language or religion’, and the ‘protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned’.128 In spite of this ostensibly narrowing qualification, generous scope is given in Article 27 protection to religious minorities. For example, in Prince v. South Africa the author, a Rastafarian, claimed that the failure to provide an exemption for Rastafarians from criminal liability under legislation prohibiting the possession and use of cannabis violated his rights under 124 E.g., Slovakia CCPR/C/79/Add.79 (1997) 24 (the use of minority languages in official com munications was not secured); Sudan CCPR/C/79/Add.85 (1997) 20 (no recognition in law of the right to use local languages in official communications or administrative or court proceed ings); Algeria CCPR/C/79/Add.95 (1998) 15 (compulsory, immediate and exclusive use of Arabic in all areas of public activity); Namibia CCPR/CO/81/NAM (2004) 21 (recognition of only one official language); Poland CCPR/CO/82/POL (2004) 20 (linguistic minorities not allowed to use their own language when dealing with administrative authorities in areas where their numbers warranted); Kosovo CCPR/C/UNK/CO/1 (2006) 22 (selective use of certain languages in official dealings with recommendation to respect the right of minority commu nities to use any official language of Kosovo in correspondence with public authorities, and that all official documents be translated into these languages); Morocco CCPR/C/MAR/CO/6 (2016) 49 (concern at the difficulties encountered by Amazighs seeking to use their language in judicial and administrative proceedings). 125 Greece CCPR/CO/83/GRC (2005) 20. 126 E.g., Cyprus CCPR/C/CYP/CO/4 (2015) 21. 127 E.g., Estonia CCPR/CO/77/EST (2003) 16; Israel CCPR/C/ISR/CO/3 (2010) 23. 128 GC 23 [6.2], [9].

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Article 27. He explained that the use of cannabis sativa was central to the Rastafari religion (used at religious gatherings and in the privacy of one’s home; at ceremonies it is smoked through a chalice (water-pipe) as part of Holy Communion, and burnt as incense; in private it is also used as incense, to bathe in, for smoking, drinking and eating). The Committee accepted that he was a member of a religious minority, that the use of cannabis was an essential part of the practice of his religion, and that the legislation constituted interference with his right, as a member of a religious minority, to practise his own religion, in community with the other members of his group. His claim therefore fell within the ambit of Article 27. However, it found that Article 27 was not violated, relying on the principle that not every interference can be regarded as a denial of rights within the meaning of Article 27 (see Lovelace below), and observing that certain limitations on the right to practise one’s religion through the use of drugs are compatible with Article 27. It could not conclude that a general prohibition against possession and use of cannabis was ‘an unreasonable justification’ for the interference with the author’s rights under Article 27.129 (There was also no violation of Article 18 because the prohibition was justified under Article 18(3).) In Apirana Mahuika et al. v. New Zealand the Committee accepted that fishing was a fundamental aspect of Maori culture and religion, and the authors provided a description of its religious significance. However, there was no Article 27 violation in a settlement agreement and subsequent arrangements between the State and the majority of Maori tribes, to which the authors’ tribes did not subscribe. The process of broad consultation undertaken by the State which preceded that agreement paid specific attention to the sustainability of Maori fishing activities, and special attention was given to the cultural and religious significance of fishing for the Maori.130 ‘Belonging’ to Such Minorities Article 27 rights apply only to ‘persons belonging’ to a qualifying minority. In two notable cases the authors successfully claimed to belong to the minority concerned, when adversely affected by measures directed at the protection of that minority. In Sandra Lovelace v. Canada the author was ethnically a Maliseet Indian, and was found to ‘belong’ to this minority for Article 27 purposes having lived on its Tobique Reserve all her life except for a few years during her marriage. Legislation concerning special privileges granted to Indian communities to occupy reserve lands defined ‘Indian’ beneficiaries in such a way as to cause her to lose her rights and status as an Indian after marrying a non-Indian, which 129 Prince v. South Africa, CCPR/C/91/D/1474/2006, 31 October 2007 [7.4] (citing Sandra Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981 [15]). 130 Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [8.2], [9.8].

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meant she could not return after her marriage ended.131 In Kitok v. Sweden measures designed to keep the number of reindeer breeders within a sustainable level determined eligibility to participate in Sami life in terms which prevented the author, who was ethnically Sami, from being treated as belonging to that minority. The Committee upheld his membership of the minority (even though it found there was no Article 27 violation for other reasons).132 Those belonging to ethnic, religious or linguistic minorities enjoy all Article 27 rights applicable to them, so that protection for the right to enjoy their own culture is not confined to those from ethnic minorities, the right to profess and practise their own religion is not confined to those from religious minorities, and the right to use their own language is not confined to those from linguistic minorities.

T H E E L E M E N T S O F V I O L AT I O N O F A RT IC L E 2 7 Reasonable and Objective Justification/Consistency with the Covenant The Committee developed a distinctive approach in Lovelace v. Canada to the question of whether Article 27 was violated when the author was denied access to the Tobique Reserve. It was the only place where she could enjoy her native culture and language in community with others. The Committee appears to have been influenced in shaping its Article 27 decision by the scope for latitude in Articles 12 and the non-discrimination provisions (Articles 2(1), 3 and 26) in a restriction on residence imposed on a member of a minority, which was demonstrably discriminatory. Its starting point was the common ground across the rights in Articles 12 and 27, that neither is absolute (‘not every interference can be regarded as a denial of rights within the meaning of article 27. Restrictions on the right to residence, by way of national legislation, cannot be ruled out under article 27 of the Covenant. This also follows from the restrictions to article 12 (1) of the Covenant’).133 To be justified, it went on to explain, the relevant restrictions ‘must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole’. (The reference to ‘reasonable and objective’ justification mirrors the principles developed more precisely since Lovelace by which there is no discrimination if the criteria for differentiation are ‘reasonable and objective’ and if the aim is to achieve a purpose which is 131 Sandra Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981 [14]. 132 Ivan Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.7]. See also GC 23 [5.2]: the ‘existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria’. 133 In Prince v. South Africa the Committee similarly alluded to relevant limitation provisions, in Art. 18(3), when legislation concurrently interfered with the author’s rights under Arts 18 and 27 by banning the use of cannabis in the practice of the author’s religion.

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legitimate under the Covenant.134 The requirement for Covenant consistency is likely to have been prompted by the unusual text of Article 12(3) which imposes as a condition of State reliance on that limitation provision that the relevant restriction be ‘consistent with the other rights recognized in the Covenant’;135 it is now formalised in General Comment 23 on Article 27.136) The Committee then construed and applied Article 27 in the light of all the provisions relevant in this case, namely, Articles 12(1) (freedom to choose one’s residence), 17(1) (interference with family and home), 23(1) (protection for the family), and also the provisions against discrimination, Articles 2(1), 3 and 26, since an Indian man who married a non-Indian woman would not lose his Indian status. In reference to the situation of this author, being denied the right to live on the Reserve did not seem to be reasonable, or necessary to preserve the identity of the tribe, and the Committee concluded that to prevent her recognition as belonging to the band was an unjustifiable denial of her Article 27 rights, read in the context of the other provisions mentioned.137 In Kitok v. Sweden, also a comparatively early decision, the Committee was ‘guided by’ Lovelace in resolving a claim which resulted from a measure to reduce the number of reindeer breeders to a sustainable level by causing any Sami who engaged in another profession for a period of three years to lose their membership in the Sami village. This meant they could no longer exercise traditional Sami rights to land and water. The author belonged to a Sami family which had been active in reindeer breeding for over 100 years. Like Lovelace, the interests of a community member were at odds with those of the community as a whole. The Committee reasoned that ‘a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole’ (echoing slightly differently the means of resolving concurrent interests in Lovelace when the denial of the right to reside on the Reserve was neither reasonable or necessary to preserve the identity of the tribe). The parties agreed that effective measures of some sort were needed to ensure the future of reindeer breeding and the livelihood of those for whom reindeer farming was the primary source of income. Although the Committee expressed some reservations about the way the legislation ignored objective ethnic criteria when it deemed there to be a loss of Sami status it found there was no violation on the facts, including because 134 See chapter on Article 26: Equality before the Law Equal Protection of the Law, sections ‘Without Discrimination (Reasonable and Objective Criteria)’, ‘Early Development’. 135 See chapter on Article 12: Freedom of Movement of the Person, section ‘Consistency with the Covenant’. 136 GC 23 [8] makes the broad observation that ‘none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant’. 137 Lovelace v. Canada, Communication No. R.6/24, Supp. No. 40 (A/36/40) at 166 (1981), 30 July 1981 [15] [17].

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the author was permitted, albeit not as of right, to graze and farm his reindeer, to hunt and to fish.138 Mhuika v. New Zealand differed in that it did not concern an individual alone, but instead a comparatively small number of Maori tribes who objected to the terms reached by most Maori with the government, which resulted in settling nationally all Maori traditional fishing rights. The Committee adopted similar principles: ‘where the right of individuals to enjoy their own culture is in conflict with the exercise of parallel rights by other members of the minority group, or of the minority as a whole, the Committee may consider whether the limitation in issue is in the interests of all members of the minority and whether there is reasonable and objective justification for its application to the individuals who claim to be adversely affected’.139 Interference So Substantial as to Amount to the Denial of Article 27 Rights In a number of cases the Committee addressed whether the impact of the exploitation of natural resources on which minority groups were dependent violated Article 27. In principle it accepts as a fact of life that a State will inevitably want to exploit its own economic resources but it is a matter of degree, and the question of violation turns on whether the impact of doing so is such as to ‘amount to a denial’ of the right under Article 27. In the first of the three Länsman v. Finland cases (Länsman I) the State argued that its national authorities continuously took into consideration the requirements of Article 27 in allowing the quarrying of stone in an area on the flank of Mount Etela-Riutusvaara where the authors enjoyed their cultural rights by traditional reindeer herding, and it appealed to Lovelace, that ‘not every interference can be regarded as a denial of rights within the meaning of article 27 . . . (but) restrictions must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant’. It suggested that ‘a margin of discretion must be left to national authorities even in the application of article 27’, drawing on the margin of appreciation doctrine which by then was well developed by the European Court on the rationale that the national judge is in a better position than the international judge to determine certain matters. The domestic courts had concluded that the quarrying permit and related measures were lawful and appropriate. The Committee’s response, in a passage which has since been often quoted in cases involving the extraction of natural resources under official licence, was to reject the operation of a ‘margin of appreciation’ and to focus only on whether the

138 Ivan Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.5], [9.7], [9.8]. 139 Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.6] (emphasis added).

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impact of the measures in question amounted to a denial of the right asserted under Article 27: A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27.140

On the facts there was no violation, and of particular importance were that the interests of the Muotkatunturi Herdsmens’ Committee (of which a number of the authors were members), and of the other authors (who were from the local community), were considered during the proceedings leading to the quarrying licence; that the authors were consulted; that reindeer herding was not apparently adversely affected by the quarrying that occurred; and that this level of care was likely to be shown in the State approval of similar future activities. The focus on the ‘denial’ of Article 27 rights brings the crucial issue back to the way Article 27 is framed, that those belonging to qualifying minorities ‘shall not be denied the right’ etc. The passage in Länsman I just quoted expanded on a principle already established by the Committee in Kitok, that the ‘regulation of an economic activity is normally a matter for the State alone. However, where that activity is an essential element in the culture of an ethnic community, its application to an individual may fall under article 27.’141 A more recent summary of the Länsman I passage in George Howard v. Canada was to the effect ‘that States parties to the Covenant may regulate activities that constitute an essential element in the culture of a minority, provided that the regulation does not amount to a de facto denial of this right’.142 Poma Poma v. Peru is discussed in further detail below but it is important for present purposes because of the Committee’s comment that ‘the leeway the State has in this area should be commensurate with the obligations it must assume under article 27’ and the refinements concerning proportionality it added in Länsman I. After emphasising the importance of effective participation by those affected, it

140 Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [7.13], [9.4], [9.6] [9.7] applied, e.g., in Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.4]. See also Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/ 1997, 24 October 2001 [7.5] (the question was similarly whether the interference was so substantial that it failed to properly protect the authors’ right to enjoy their culture, and whether (on the facts) logging in that instance ‘rises to such a threshold’). 141 Ivan Kitok v. Sweden, CCPR/C/33/D/197/1985, 27 July 1988 [9.2]. 142 George Howard v. Canada, CCPR/C/84/D/879/1999, 26 July 2005 [12.7].

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continued ‘[i]n addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members’. It provides an example of violation in the sheer scale of the destructive impact of the measures supporting major infrastructure projects. These included diverting the River Uchusuma in the 1950s, drilling wells in the 1970s, further diverting water from the Andes to the Pacific coast in the 1980s, and the construction of new wells in the 1990s. This deprived the wetlands of surface water needed to sustain the pastures where the author’s alpacas grazed, and reduced the underground water supply. Thousands of head of livestock died because of the degradation of 10,000 hectares of Aymara pasture land as a direct result of well-digging in the 1990s alone, which ruined the way of life and the economy of the community, forcing its members to abandon their land and their traditional economic activity. The State did not require studies to be undertaken by a competent independent body in order to determine the impact on traditional economic activity, nor did it take measures to minimise the negative consequences and repair the harm done.143 Effective Participation of Members of Minority Communities in Decisions which Affect Them As early as General Comment 23 (April 1994, shortly before the Länsman I decision) the Committee emphasised the need for ‘measures to ensure the effective participation of members of minority communities in decisions which affect them’.144 A failure to undertake proper consultation and allow effective participation may weigh strongly among other factors in support of a finding of violation of Article 27, or may be decisive of violation on its own. Proper consultative processes can also be highly influential in findings of non-violation. A significant factor in the Committee’s finding that Article 27 was not violated in Mhuika v. New Zealand in the settlement of traditional fishing rights was that, even though the authors felt their rights had been overridden, the State had undertaken a complicated process of consultation in order to secure broad Maori support. Proposals by Maori communities and national Maori organisations influenced the design of the arrangement, and the settlement was enacted only following the Maori representatives’ report that substantial Maori support for the settlement existed. For many Maori, legislation which gave effect to the agreement was an acceptable settlement of their claims. In this aspect of Mhuika the Committee relied on Länsman I in which it took special note of the fact that the 143 Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009 [7.4] [7.7]. For depri vation of water resources, see also Colombia CCPR/C/COL/CO/7 (2016) 42 (permits for natural resource development projects on the territories of indigenous peoples left some (the Wayúu peoples) insufficient access to drinking water). 144 GC 23 [7].

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interests of the Muotkatunturi Herdsmens’ Committee and the other authors were considered.145 The way the Committee put it in Mhuika was that ‘the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy’.146 Similarly in Poma Poma v. Peru, but with far greater emphasis on ‘effective’ participation in decision-making, and with the added requirement for the consent of affected community members, the Committee commented that: the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.147

The switch from ‘acceptability’ to the more enigmatic ‘admissibility’ of measures was presumably to avoid any apparent sanitising of measures which impinge on Article 27 rights, even if they fall short of violation. The importance of the opportunity to participate in the decision-making process is nevertheless clear. For many years in reviewing State reports the Committee has emphasised the need for prior informed consultation with the communities affected by decisions, and for States to take due account of the decisions of indigenous peoples during the consultation process especially concerning exploitation of natural resources,148 but since around 2008 (shortly before the Poma Poma decision) it has repeatedly reiterated the need also for their free, prior and informed consent.149

145 Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.6]. 146 Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.5] [9.6]. 147 Ángela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 27 March 2009 [7.4], [7.6]. See also Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.6], [9.8]; Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.5]. 148 E.g., Venezuela CCPR/CO/71/VEN (2001) 28; Paraguay CCPR/C/PRY/CO/3 (2013) 27; Chile CCPR/C/CHL/CO/6 (2014) 10; Suriname CCPR/C/SUR/CO/3 (2015) 47; Canada CCPR/C/ CAN/CO/6 (2015) 16; Ecuador CCPR/C/ECU/CO/6 (2016) 35; Thailand CCPR/C/THA/CO/2 (2017) 43; El Salvador CCPR/C/SLV/CO/7 (2018) 41; Belize CCPR/C/BLZ/CO/1/Add.1 (2018) 45; Guatemala CCPR/C/GTM/CO/4 (2018) 38; Lao CCPR/C/LAO/CO/1 (2018) 39; Liberia CCPR/C/LBR/CO/1 (2018) 46. 149 E.g., Panama CCPR/C/PAN/CO/3 (2008) 21; Bolivia CCPR/C/BOL/CO/3 (2013) 25; Peru CCPR/C/PER/CO/5 (2013) 24; Sweden CCPR/C/SWE/CO/7 (2016) 39.

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RESOLUTION OF CONFLICT AFFECTING M I NO R I T Y G R O U P S Conflict between the Interests of the Minority Group and Those of an Individual Member The way in which the Committee resolved conflict between the interests of the minority group and those of an individual member in Lovelace v. Canada and Kitok v. Sweden has already been canvassed above (see section ‘Reasonable and Objective Justification/Consistency with the Covenant’). Conflict between the Interests of Different Groups within a Minority in the State Regulation of Minority Resources Kalevi Paadar et al. v. Finland, like Kitok, concerned reindeer herders but involved a different type of conflict, namely, between different groups of fulltime reindeer herders, both of which were members of a cooperative forcibly established for reasons of sustainability of herds. The cooperative was a public law entity, not a voluntary unit established by Sami like the village to which the author in Kitok once belonged. The cooperative system was imposed by legislation in the 1930s and regulated by 1990 legislation. For reasons of sustainability the authorities determined for a period of ten years at a time the maximum number of live reindeer that a cooperative may keep on its territory (within the capacity of the cooperative’s winter pasture) and the maximum number of reindeer that a shareholder of a cooperative may own. If the number of live reindeer was exceeded the cooperative had to reduce stocks during the following year, and even during the current year if the need became obvious at an earlier stage. The cooperative was divided into two herding groups, one in the more remote north around the village of Nellim (in which the authors and others pursued traditional Sami methods based solely on natural pastures), and one in the south around the village of Ivalo. Herding around Nellim was much harder than around Ivalo because of harsher winter conditions, different pastures and greater exposure to predators. Because of the particular model adopted by the Cooperative, for several years the number of the authors’ reindeer decreased dramatically, much more than for the Ivalo group. The methodology was based on reindeer numbers at the beginning of the herding year and failed to take into account the nature-based herding methods peculiar to the authors’ group, reliant on free grazing in natural pastures, which was self-regulating because calf losses (of between 30 and 50 per cent) were an integral part of traditional herding practices, including disappearance in the forest and exposure to loss mainly from bears. Losses in the north were therefore greater than in areas with more human settlement to the south, yet the imbalance in predation pressure was not taken into account in the slaughtering plan. The authors’ Nellim group, unlike the Ivalo group, did not have

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enough calves to fulfil their slaughter quota and were forced to kill their adult female reindeer, which they needed as a productive base for their herding economy. The authors therefore claimed they were victims of violation of Articles 26 and 27 in that the forced slaughter had discriminatory effects on them. In the event, the Committee did not have to resolve the issue. The authors’ claim failed principally because it did not to come up to proof. They provided some figures on their reindeer numbers and the reduction imposed by the cooperative for only one year, but it was unclear what the progression was of the reductions imposed on their herds in certain years, how this compared with the reductions imposed on the other members of the cooperative, and how, in concrete terms, they came to a situation where all their reindeer had to be slaughtered. On the limited evidence available the Committee was unable to conclude that the impact was such as to ‘amount to a denial of the author’s rights under articles 26 and 27’.150 The difference in outcome between the two groups under the scheme nevertheless demonstrates the potential for non-discrimination principles to play a significant part in resolving Article 27 claims in such situations.151 The Committee treated the divergence between different Maori iwi (tribes) in Mhuika v. New Zealand as a situation in which the right of individuals to enjoy their own culture was in conflict with the exercise of parallel rights by other members of the minority group, or of the minority as a whole. The authors, who belonged to seven distinct tribes (out of a total of eighty-one) argued their Article 27 rights were violated by legislation in 1992 aimed at finally settling traditional Maori fishing claims which had been contested since early settlement. The immediate background was that by the early 1980s inshore fisheries were overexploited, in consequence of which there was a moratorium on new permits and part-time fishers were removed from the commercial industry, including (though unintended) many Maori fishers. When it was realised that still tighter measures were needed a quota management system was introduced for the commercial use and exploitation of fisheries. Although it was meant that this should preserve Maori fishing rights, Maori tribes succeeded in securing injunctions because it was inadequate. This led to negotiations between Maori representatives and government, which resulted in a Memorandum of Understanding. When the Maori negotiators put the proposal to the Maori tribes they took there to be sufficient mandate in support from fifty tribes (representing 208,681 Maori) out of a total of eighty-one tribes. A deed of settlement was executed between the government and Maori negotiators concerning sea, freshwater and inland fisheries, also giving a payment of NZ$ 150,000,000 for Maoris to develop their fishing industry and 20 per cent of new quota for species. It was then embodied in legislation in 1992, which recorded that it was in full and final settlement of all 150 Kalevi Paadar et al. v. Finland, CCPR/C/110/D/2102/2011, 26 March 2014 [7.7]. 151 Ibid. [7.6], referring to GC 23 [6.2].

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Maori claims to commercial fishing rights. It would also change the status of noncommercial fishing rights so that they no longer gave rise to rights or obligations on the Crown having legal effect. In consequence, Maori purchased 50 per cent of a company, Sealords, which owned 26 per cent of the then available quota, and a new Treaty of Waitangi Fisheries Commission was appointed, which controlled other commercial fisheries and disbursed funds which supported the customary fishing regime. As already discussed,152 the decision that Article 27 was not violated was influenced by the extent to which the authors’ tribes had been properly consulted. The majority of the members of the tribes which the authors represented did not agree with the settlement, and claimed their rights as members of the Maori minority had been overridden. The Committee crucially responded that ‘the Committee may consider whether the limitation in issue is in the interests of all members of the minority and whether there is reasonable and objective justification for its application to the individuals who claim to be adversely affected’.153 The effects of the settlement were vital to this analysis. The Committee measured these effects against the position before the negotiations took place, when there was a quota management system in which Maori were deprived of their fisheries. The settlement adjusted this by giving Maori access to a greater percentage of the quota and returning effective possession of fisheries to them. While it was a matter of concern that the settlement and its process contributed to divisions amongst Maori, the Committee concluded that the State had taken the necessary steps to ensure that the settlement and resulting legislation was compatible with Article 27, by engaging itself in the process of broad consultation before proceeding to legislate, and by paying specific attention to the sustainability of Maori fishing activities.154 Conflict between State/Private Interests and Those of the Minority Group in the Exploitation of Natural Resources The grant of oil and gas exploration leases to private corporate interests led to the claim in Lubicon Lake Band v. Canada that the resulting destruction of the environment undermined the Band’s economic base. It was framed as an Article 1 claim (affecting the Band’s right to determine freely its political status and to pursue its economic, social and cultural development), but the Committee supported it under Article 27, though with very little reasoning since the State already offered a suitable remedy. It was of particular importance at the time because the Committee identified as the relevant aspect of Article 27 ‘the right of persons, in community 152 See section ‘Effective Participation of Members of Minority Communities in Decisions which Affect Them’, this chapter, above. 153 Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993, 27 October 2000 [9.6], citing Kitok v. Sweden without paragraph references but these are relevantly [9.5], [9.7] and [9.8]. 154 Ibid. [9.7] [9.8].

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with others, to engage in economic and social activities which are part of the culture of the community to which they belong’. It concluded that ‘[h]istoric inequities . . . and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article 27 so long as they continue’.155 The case also highlighted the risks that economic concessions granted to the private sector may pose to the enjoyment of Article 27 rights. The three Länsman v. Finland decisions demonstrate how in particular circumstances the Committee has resolved the various conflicting interests of the State and private sector in exploiting natural resources, and the interests of cultural minorities immediately affected. In the first, the issue was whether quarrying in the amount that had taken place until then, or was permissible under licence, would violate Article 27 involving the extraction of stone and its transportation when a complex system of reindeer fences and pens were erected to direct reindeer to particular pastures. The mountain also had continuing spiritual significance relevant to Sami culture. The Committee found that the interests of the authors were appropriately considered, and that reindeer herding in the area did not appear to have been adversely affected by such quarrying as had by then occurred. As to future activities which may be approved, the Committee was persuaded from the track record of the relevant authorities that they had endeavoured to permit only quarrying which would minimise the impact on any reindeer herding activity and on the environment, and the intention to minimize the effects of stone extraction was reflected in the conditions laid down in the permit. It was agreed that quarrying activities should be carried out primarily outside the period used for reindeer pasturing in the area. It also appeared that the authorities or the company could accommodate recent changes in herding methods which involved young fawns not being kept fenced in with their mothers, so that the reindeer could pasture more freely and for a larger part of the year than previously. However, if mining activities were to be approved on a large scale and significantly expanded, then this may constitute a violation and the State was under a duty to bear this in mind when either extending existing contracts or granting new ones.156 Länsman II, concerned road construction and logging of forests in an area covering about 3,000 hectares out of a total of 255,000 hectares occupied by members of the Muotkatunturi Herdsmen’s Committee. There was already heightened sensitivity given the quarrying and logging that already taken or would take place. The economic viability of reindeer herding was then in decline, and as a result of Swedish subsidies Finnish Sami herdsmen had difficulties competing with their Swedish counterparts. In the north of Finland traditional herdsmen also faced difficulties competing with the reindeer meat producers in the south, who 155 Chief Ominayak and the Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 26 March 1990 [32.2], [33]. 156 Länsman v. Finland, CCPR/C/52/D/511/1992, 26 October 1994 [9.6] [9.9].

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used fencing and feeding with hay, methods very distinct from the nature-based traditional Sami methods (which became apparent later in Kalevi Paadar et al. v. Finland). The question which the Committee had to address was whether the logging that had already taken place, as well as the logging which had been approved for the future to be spread over a number of years, was of such proportions as to deny the authors the right to enjoy their culture in the affected area. In the circumstances, and not aided by the fact that the parties disagreed on the long-term impact, the Committee found itself unable to conclude on the evidence that the past and approved activities would meet that threshold. The Muotkatunturi Herdsmen’s Committee had been consulted in the process of drawing up the logging plans and it did not react negatively, although the authors complained that this process was unsatisfactory. The Committee was still satisfied that the authorities went through the process of weighing the authors’ interests and the general economic interests in the area when deciding on the most appropriate measures of forestry management, that is, logging methods, choice of logging areas and construction of roads. The domestic courts also considered specifically whether the proposed activities constituted a denial of Article 27 rights. As to future logging, the authorities had approved this on a scale which did not appear to threaten the survival of reindeer husbandry even though resulting in additional work and extra expense for the authors and other reindeer herdsmen. The fact that reindeer husbandry was an activity of low economic profitability was not a result of encouraging economic activities through granting logging licences but of other, external, economic factors.157 By the time Länsman III was decided the Committee had the task of contending with the combined effects of a series of actions taken over a period of time in more than one area of the land occupied by the same minority. It had to consider the overall effects of those measures. This required an assessment of their effects not at one particular point in time – either immediately before or after they were carried out – but the effects of past, present and planned future logging on the authors’ ability to enjoy their culture. The parties disagreed fundamentally on the effects of the logging, as well as the reasons behind the decision to reduce the number of reindeer kept per herd. (The authors attributed the reduction to logging, while the State claimed it was to control the overall increase in reindeer threatening the sustainability of reindeer husbandry generally.) On this occasion the Committee was able to make a decision on available evidence and it concluded that the effects of the logging in the areas in question had not been shown to be serious enough to amount to a denial of the authors’ right to enjoy their own culture in community with fellow group members.158

157 Jouni E. Länsman et al. v. Finland, CCPR/C/58/D/671/1995, 30 October 1996 [10.5] [10.6]. 158 Jouni E. Länsman et al. v. Finland, CCPR/C/58/D/1023/01, 17 March 2005 [10.2] [10.3].

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The Committee’s finding of violation in Poma Poma v. Peru discussed earlier was a simpler conflict to determine because of the State’s failure even to have impact studies commissioned, and the devastating consequences of water diversion on wetlands where raising of llamas (and other smaller animals) was the only means of subsistence in accordance with the traditional customs of the affected families on 350 hectares of pasture land located 4,000 metres above sea level, who were descendants of the Aymara people, for whom this had been part of their way of life for thousands of years.159

E V I D E N T I A L ISSU ES It is an inevitable feature of such cases involving multilateral interests that the evidence presented by the parties, and the conclusions to be drawn from it, conflict. The Committee seems reluctant to draw independent findings where evidence is strongly contested, as it was in Paadar et al. v. Finland. Similarly, in Äärelä v. Finland when there were conflicting first instance and appellate domestic findings on proposed logging of 92 hectares concerning the importance of the area to reindeer husbandry and the long-term impacts on the sustainability of husbandry.160 It may also be reluctant to reach independent conclusions where the domestic court has come to a decision after detailed analysis of the facts (Länsman II).161 In such cases the fact that consultation appeared to be properly conducted may also tend the Committee away from intervention (Äärelä, Länsman II). In George Howard v. Canada a central and contested factual issue had not even been aired in the domestic court. The dispute turned on whether Ontario’s Fishing Regulations as applied to the author, a member of the Hiawatha community, deprived him of the ability to exercise his aboriginal fishing rights (individually and in community with other members of this group), by fining him for fishing out of season from a river close to, but not on, the First Nation’s reserve. He could fish 159 See section ‘Effective Participation of Members of Minority Communities in Decisions which Affect Them’, above. 160 Äärelä and Näkkäläjärvi v. Finland, CCPR/C/73/D/779/1997, 24 October 2001 [7.6] (the domestic courts at first instance and on appeal took different positions on the evidence, in particular whether the proposed logging would partially contribute to long term sustainability of reindeer husbandry by allowing regeneration of ground lichen in particular, and on whether the area in question was of secondary importance to husbandry in overall context). 161 Jouni E. Länsman et al. v. Finland, CCPR/C/58/D/671/1995, 30 October 1996 [10.5] [10.6]. See also Jonassen v. Norway, CCPR/C/76/D/942/2000, 25 October 2002 [8.3] (reluctance to re evaluate facts considered by the domestic court when ruling inadmissible claims under Arts 2 and 26, related to that under Art. 27, concerning the ‘Aursunden Case 1997’, an appeal which supported the landowners’ position that the authors were not entitled to reindeer grazing on the privately owned farm fields in the area. It was alleged that in that 1997 case the Supreme Court attached crucial importance to assessments made in an 1897 decision which evinced discrimi natory views towards the Samis).

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throughout the year on and adjacent to his Nation’s reserves as a treaty right (‘the 1923 Williams treaty’, dealing with indigenous hunting and fishing rights) and, with a fishing licence, he could also fish in other areas in the region which were open for fishing when the area surrounding the reserves was closed. The author argued that there were not enough fish on and adjacent to the reserves to render the right meaningful and that the other areas were not traditional fishing grounds. The question was whether the author’s right to fish (either under the treaty or licence) was sufficient to allow him to enjoy this element of his culture, in community with other members of his group. This depended on a number of factual considerations, including the potential catch of fish on and adjacent to the reserves, as well as on the extent of the traditional Hiawatha fishing grounds. In the Committee’s view this was a matter primarily for domestic courts to examine, which in this case they had not done, and it did not consider it was in a position to draw independent conclusions on such a crucial matter.162 The evidential failure in Diergaardt et al. v. Namibia lay in the lack of connection between the authors’ culture and the associated economic activity of cattle grazing. Their claim was that the land of the Rehoboth Baster Community (consisting of descendants of indigenous Khoi and Afrikaans settlers who originally lived in the Cape) had been expropriated at the time of Namibia’s independence in 1990 and that, as a consequence, their rights as a minority were violated since their culture was bound up with the use of communal land exclusive to members of the Community. The Community then numbered 35,000 people and the area they occupied (south of Windhoek) had a surface of 14,216 km² in which they developed their own society, culture, language and economy (as cattle-raising farmers), with which they largely sustained their own institutions, such as schools and community centres. They practised communal pastoring in times of drought. The Committee decided that the authors could not rely on Article 27 to support their claim for exclusive use of the pastoral lands in question, based on its assessment of the relationship between the authors’ way of life and the lands covered by their claims. Although the link of the Rehoboth community to those lands dated back some 125 years, it was not the result of a relationship that would have given rise to a distinctive culture. The Committee was looking for clearer indication than the authors could provide of ‘a particular way of life associated with the use of land resources through economic activities, such as hunting and fishing, especially in the case of indigenous peoples’.163

162 George Howard v. Canada, CCPR/C/84/D/879/1999, 26 July 2005 [12.8] [12.11]. 163 J.G.A. Diergaardt et al. v. Namibia, CCPR/C/69/D/760/1997, 6 September 2000 [2.1], [3.1], [10.6]. For further explanation, see Individual Opinion of Elizabeth Evatt and Cecilia Medina Quiroga (concurring).

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I M P L E M E N TAT I O N In a number of communications against France concerning the use of the Breton language in different contexts (T.K. v. France, H.K. v. France and S. G. v. France) the Committee found itself precluded by a declaration (which it treated as a reservation) reading: ‘In the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 is not applicable so far as the Republic is concerned’.164 It was also found in Hopu and Bessert v. France to apply to France’s overseas territories, in spite of the reference to ‘the French Republic’.165 The Committee raised the declaration a number of times, prompting France to explain on one occasion that the concept of a ‘minority’ had always seemed dangerous, since the legal organisation of a minority could lead to isolation, to the establishment of ghettoes and to persecution. Since France was opposed to all forms of discrimination, it could not accept the concept of a legal ‘minority’. It intended to grant everyone the same degree of freedom in conditions of equality and fraternity. Liberty and equality did not imply uniformity, and it was by means of those concepts, and not of the concept of legally organised minorities, that the right of citizens to live in their different ways was recognised. France therefore considered that Article 27 was not applicable to it because it was contrary to a fundamental principle of French law.166 The Committee’s position is that the mere fact that equal rights are granted to all individuals and all individuals are equal before the law does not exclude the existence in fact of minorities and their Article 27 entitlements.167 In reviewing State reports the Committee has recommended the adoption of legislation to guarantee the full enjoyment of Article 27 rights,168 or to

164 M.K. v. France, CCPR/C/37/D/222/1987, 8 November 1989 [8.6] (refusal of French courts to allow the author to express himself in Breton); T.K. v. France, CCPR/C/37/D/220/1987, 8 November 1989 [8.6] (refusal to consider a case which a professor of philosophy and of the Breton language submitted in the Breton language); S.G. v. France, CCPR/C/43/D/347/1988 at 8 (1991), 1 November 1991 [5.3] (defacing of road signs as part of a campaign led by a movement whose aim was the posting of bilingual road signs, in Breton and French, throughout the Bretagne). 165 Francis Hopu and Tepoaitu Bessert v. France, CCPR/C/60/D/549/1993/Rev.1. (1997), 29 July 1997 [4.3]. In the Individual Opinion of Elizabeth Evatt, Cecilia Quiroga, Fausto Pocar, Martin Scheinin and Maxwell Yalden (partly dissenting) whatever the legal relevance of the declaration may be in relation to the territory of metropolitan France, on the terms of the declaration it was not relevant to overseas territories under French sovereignty. See also France A/38/40 (1983) 315, where the Committee suggested that the reference in the Constitution to the ‘Republic’ could be interpreted to refer only to Metropolitan France. 166 France A/38/40 (1983) 315, 334. 167 France CCPR/C/79/Add.80 (1997) 24; a position maintained by the Committee at France CCPR/C/FRA/CO/4 (2008) 11 and France CCPR/C/FRA/CO/5 (2015) 5 (the declaration remains). 168 E.g., Russian Federation CCPR/C/79/Add.54 (1995) 23, 40; Suriname CCPR/CO/80/SUR (2004) 21. See also Switzerland CCPR/C/79/Add.70 (1996) 20; Australia CCPR/C/AUS/CO/ 6 (2017) 49.

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address identified deficiencies.169 It has recommended statistical tools, where a country has denied the self-evident existence of minorities, to produce data for planning and evaluation purposes.170 It has pointed out where Article 27 gives greater protection than is available under the European Convention, with the specific recommendation (in more recent instances) that this be addressed.171 It has pointed out where measures taken are insufficient to respect and protect the rights of indigenous peoples domestically,172 where they leave gaps such as protection for some but not all relevant minorities,173 or where the right to effective participation through consultations to obtain free, prior and informed consent is not yet granted in law or ensured in practice;174 and it is not satisfied merely by legislative measures unless they are also effectually implemented and may be enforced,175 with appropriate remedies invokable in courts.176 The Committee has been particularly sensitive to the need for recognition of indigenous communities,177 and their use of land resources;178 it has promoted recognition of title to ancestral and other indigenous lands;179 it 169 E.g., Japan CCPR/C/JPN/CO/6 (2014) 26 (revise legislation and fully guarantee the rights of Ainu, Ryukyu and Okinawa communities). 170 France CCPR/C/FRA/CO/5 (2015) 6. For those States that deny even the existence of mino rities, see section ‘Meaning of “Minority”’, above. 171 E.g., Belgium A/47/40 (1992) 430; Iceland CCPR/C/79/Add.98 (1998) 8; Sweden CCPR/CO/ 74/SWE (2002) 6; Iceland CCPR/CO/83/ISL (2005) 9. 172 E.g., Guinea CCPR A/48/40 (1993) 548 (measures should be taken to fully implement Art. 27 guarantees); Azerbaijan CCPR/C/79/Add.38 (1994) 20 (follow GC 23 in legislative or regula tory texts); Estonia CCPR/C/79/Add.59 (1995) 36 (amend national legislation to conform with Art. 27); Gabon CCPR/C/79/Add.71 (1996) 17 (concern at lack of implementation measures); Croatia CCPR/CO/71/HRV (2001) 22 (articulate Art. 27 in the legal framework, as the starting point); Guatemala CCPR/CO/72/GTM (2001) 29 (adopt comprehensive legislation to improve the situation of members of indigenous communities in practice and not only on paper); Azerbaijan CCPR/C/AZE/CO/3 (2009) 20 (concern at reductions in the legal guarantees relating to the protection of minorities); Greece CCPR/C/GRC/CO/2 (2015) 43 (insufficient Art. 27 guarantees). 173 E.g., Italy CCPR/C/79/Add.37 (1994) 11 (protection confined to linguistic minorities). 174 E.g., Peru CCPR/C/PER/CO/5 (2013) 24; Honduras CCPR/C/HND/CO/2 (2017) 46; Norway CCPR/C/NOR/CO/7 (2018) 36. 175 E.g., Guyana CCPR/C/79/Add.121 (2000) 21; Luxembourg CCPR A/48/40 (1993) 134 (Art. 27 rights needed to be guaranteed and monitored); Republic of Moldova CCPR/CO/75/MDA (2002) 19 (concern at the situation of Gagauz and Roma in practice); Russian Federation CCPR/C/RUS/CO/7) (2015) 24 (insufficient measures taken, including under protective legis lation, certain rights were largely unprotected and insufficiently enforced in practice). 176 E.g., Costa Rica CCPR/C/79/Add.107 (1999) 21; New Zealand CCPR/C/NZL/CO/5 (2010) 20. 177 Panama CCPR/C/PAN/CO/3 (2008) 21 (concern at the non recognition of the special status of indigenous communities that are not within a comarca including the right to collective use of their ancestral lands). 178 E.g., Mexico CCPR/C/79/Add.109 (1999) 19. 179 E.g., Australia CCPR A/55/40 (2000) 509 (restore and protect the titles and interests of indigenous persons in their native lands); Honduras CCPR/C/HND/CO/1 (2006) 19 (concern at the failure to make legislative provision for the recognition of title to ancestral indigenous lands); Argentina CCPR/C/ARG/CO/5 (2016) 37 (indigenous lands not legally recognised and protected); El Salvador CCPR/C/SLV/CO/7 (2018) 41 (legislation did not recognise the right of

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has been responsive to interference with rights affecting ancestral land, whether as a result of forced eviction or displacement,180 in some cases where the interference also involved violence,181 or the sale of land;182 it has paid close attention to the regulation of competing public and private uses of land183 (given that exploitation may subject indigenous peoples to particular vulnerability,184 as may environmental pollution),185 and to noncompliance with rulings of the Inter-American Human Rights Commission and national courts restraining concessions for resource exploitation;186 it has been critical of slowness in implementing required measures to put ancestral land initiatives into practice,187 at measures which are insufficient or not given priority;188 and it has been concerned for the heavy financial burden of litigating such issues,189 the burden of proof in indigenous claims

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186 187 188

189

indigenous peoples as such to acquire land titles, and no specific legislation for the granting of land titles to indigenous peoples). E.g., Nicaragua A/38/40 (1983) 238 (several thousand Miskito Indians); Denmark CCPR/C/79/ Add.68 (1996) 15 and Denmark CCPR/CO/70/DNK (2000) 10 (the Thule community in Greenland on construction of a military base); Kenya CCPR/C/KEN/CO/3 (2012) 24 (dispos session from ancestral land of the Ogiek and Endorois communities). E.g., Argentina CCPR/C/ARG/CO/4 (2010) 25; Argentina CCPR/C/ARG/CO/5 (2016) 37. E.g., Costa Rica A/35/40 (1980) 352 (Indians completely lost the China Kika reserve; reported sale of lands in the Boroca Reserve); Paraguay CCPR/C/PRY/CO/3 (2013) 27 (allegations that authorities facilitated the sale of ancestral indigenous lands to private companies). E.g., Norway CCPR/C/79/Add.112 (1999) 10; Denmark CCPR/CO/70/DNK (2000) 10; Guyana CCPR/C/79/Add.121 (2000) 21; Finland CCPR/CO/82/FIN (2004) 17; Chile CCPR/ C/CHL/CO/5 (2007) 19. E.g., USSR A/45/40 (1990) 116 (exploitation of the land resources threatened the way of life and even the very existence of some minorities); Russian Federation CCPR/C/RUS/CO/6 (2009) 28; Ecuador CCPR/C/ECU/CO/6 (2016) 35 (Tagaeri and Taromenane peoples in a vulnerable situation, owing to exploitation). E.g., Suriname CCPR/CO/80/SUR (2004) 21 (allegations that mercury was released in the vicinity of the Maroon and Amerindian communities, threatening the life, health and environ ment of indigenous and tribal peoples); USA CCPR/C/USA/CO/4 (2014) 25 (insufficient measures to protect the sacred areas of indigenous peoples against desecration, contamination and destruction as a result of urbanization, extractive industries, industrial development, tourism and toxic contamination). For a study of the challenges which environmental degrada tion poses for human rights protection more broadly than minority rights (across regional instruments), see Fitzmaurice, ‘Environmental Degradation’, p. 622. E.g., Belize CCPR/C/BLZ/CO/1 (2013) 25. E.g., Guatemala CCPR/CO/72/GTM (2001) 29; Paraguay CCPR/C/PRY/CO/2 (2006) 23; Chile CCPR/C/CHL/CO/5 (2007) 19; Chile CCPR/C/CHL/CO/6 (2014) 10. E.g., Ecuador CCPR/C/79/Add.92 (1998) 19 (further measures needed to ensure indigenous groups are protected against the adverse effects of the oil extraction); Australia CCPR A/55/40 (2000) 510 (secure continuation and sustainability of traditional forms of economy (hunting, fishing and gathering); noted that protection of sites of religious or cultural significance not always a major factor in determining land use); Guyana CCPR/C/79/Add.121 (2000) 21; (delays in the demarcation of traditional lands, and insufficient land demarcated to allow pursuit of traditional economic activities). E.g., Canada CCPR/C/CAN/CO/6 (2015) 16 (reports of the potential extinguishment of indi genous land rights and titles, with heavy financial burden in litigation). See also Australia CCPR/C/AUS/CO/5 (2009) 16 (high litigation cost).

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a commentary on the iccpr

and lack of legal aid.190 The Committee has also been concerned about less invasive measures such as the establishment of game reserves.191

C O N C L US I O N The text of Article 27 brooks no compromise with the fears of a number of States voiced in the drafting of Article 27 which led them to argue against protection for immigrants, non-citizens and newly-emerging minorities. The text of Article 27 is clear, that it protects the rights of those ethnic, religious or linguistic minorities which ‘exist’, no matter how, regardless of where they originate, and without requiring any degree of permanence. Yet States for a variety of motives still maintain that no such minorities exist within their borders, even conspicuous ones, and the Committee has frequently had to point out the absurdity of such assertions. The discriminatory treatment of minorities seems to be so extensive, limiting their access to health, education, employment, and welfare services, and affecting their enjoyment of a broad range of Covenant rights, that it is obvious that in many parts of the world Article 27 is not given high priority. The absence of a limitation provision within Article 27 caused the Committee to develop approaches to the question of violation by applying a threshold based on reasonable and objective justification, which achieves consistency with other Covenant provisions, especially in the latitude permitted (Lovelace). In cases concerning the exploitation of natural resources on which minority groups were dependent attention is directed more clearly to its impact as ‘a denial’ of Article 27 rights (Länsman I, Kitok), which better comports with the text of Article 27. Decisions concerning the exploitation of natural resources have been significant in establishing the need for ‘effective’ participation in decision-making of those affected. Poma Poma represents a landmark, building on Länsman I to clarify the criteria for effective participation and adding a requirement for consent. Measures can hardly be considered acceptable if they have a substantial adverse effect on the culturally significant economic activities of a minority or indigenous community which has not had the opportunity to participate in the decisionmaking process.

190 E.g., Sweden CCPR/C/SWE/CO/6 (2009) 21 (burden of proof for land ownership placed wholly on Sami claimants, and lack of legal aid for Sami villages, which act as litigants in land disputes); Sweden CCPR/C/SWE/CO/7 (2016) 38 (burden of proof for land ownership wholly on Sami claimants); Australia CCPR/C/AUS/CO/6 (2017) 51 (high standard of proof required in the native title legislation and extreme difficulties in obtaining compensation for those people who had their native title extinguished). 191 E.g., Tanzania CCPR/C/TZA/CO/4 (2009) 26 (reports that the traditional way of life of indigenous communities had been negatively affected by the establishment of game reserves and other projects).

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Article 27: Ethnic, Religious and Linguistic Minorities

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A number of Article 27 claims are particularly interesting because they have entailed the resolution of different conflicts: between the interests of the minority group and those of an individual member (Lovelace, Kitok); between the interests of different constituencies within a minority group (Paadar, Mhuika); and between the interests of the State or private sector and those of minority groups in the grant of mining or logging concessions, and the completion of major infrastructure projects (Länsman I, II and III, and Poma Poma). To resolve conflict in the first category the Committee relied on the requirements of reasonable and objective justification deployed in Lovelace and Kitok. In the second and third, participation in decision-making of those affected came to the fore, but the development of clearer principles was impeded by a certain reluctance on the Committee’s part to intervene when evidence was strongly contested, or the matter had been examined carefully and in depth at domestic level.

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L I S T O F C O N C L U D I N G O B S E RVAT I O N S ( TO R E PO RT I N G S TAT E S ) BY H U M A N R I G H T S COM M ITTEE S ES SION S

Footnotes in the text, and the numerical ranges below, refer to paragraph numbers. Session 2 Syrian Arab Republic A/32/40 (1977), 113–115 Cyprus A/32/40 (1977), 116–118 Tunisia A/32/40 (1977), 119–122 Finland A/32/40 (1977), 123–126 Ecuador A/32/40 (1977), 127–129 Hungary A/32/40 (1977), 130–132 Sessions 3–5 Libyan Arab Jamahiriya A/33/40 (1978), 50–67 Sweden A/33/40 (1978), 68–94 Denmark A/33/40 (1978), 95–110 Czechoslovakia A/33/40 (1978), 111–146 German Democratic Republic A/33/40 (1978), 147–183 United Kingdom of Great Britain and Northern Ireland A/33/40 (1978), 184–226 Norway A/33/40 (1978), 227–257 Madagascar A/33/40 (1978), 258–292 Iran A/33/40 (1978), 293–331 Federal Republic of Germany A/33/40 (1978), 332–365 Yugoslavia A/33/40 (1978), 366–398 Jordan A/33/40 (1978), 399–408 Union of Soviet Socialist Republics A/33/40 (1978), 409–450 Mauritius A/33/40 (1978), 451–520 Byelorussian Soviet Socialist Republic A/33/40 (1978), 521–554 Ecuador A/33/40 (1978), 555–572 Sessions 6–7 Chile A/34/40 (1979), 70–109 Bulgaria A/34/40 (1979), 110–146 Romania A/34/40 (1979), 147–179 Spain A/34/40 (1979), 180–227 842

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843

United Kingdom of Great Britain and Northern Ireland A/34/40 (1979), 228–247; 300–371 (dependent territories) Ukrainian Soviet Socialist Republic A/34/40 (1979), 248–285 Syrian Arab Republic A/34/40 (1979), 286–299 Cyprus A/34/40 (1979), 372–389 Finland A/34/40 (1979), 390–437 Sessions 8–10 Poland A/35/40 (1980), 44–75 Sweden A/35/40 (1980), 76–87 Mongolia A/35/40 (1980), 88–118 Iraq A/35/40 (1980), 119–153 Canada A/35/40 (1980), 154–196 Senegal A/35/40 (1980), 197–238 Colombia A/35/40 (1980), 239–274 Suriname A/35/40 (1980), 275–306 Hungary A/35/40 (1980), 307–333 Costa Rica A/35/40 (1980), 334–369 Sessions 11–13 Venezuela A/36/40 (1981), 45–77 Denmark A/36/40 (1981), 78–103 Italy A/36/40 (1981), 104–147 Barbados A/36/40 (1981), 148–179 Kenya A/36/40 (1981), 180–201 United Republic of Tanzania A/36/40 (1981), 202–226 Mali A/36/40 (1981), 227–252 Jamaica A/36/40 (1981), 253–290 Portugal A/36/40 (1981), 291–336 Norway A/36/40 (1981), 337–79 Sessions 14–16 Japan A/37/40 (1982), 53–91 Netherlands A/37/40 (1982), 92–133 Morocco A/37/40 (1982), 134–165 Jordan A/37/40 (1982), 166–213 Rwanda A/37/40 (1982), 214–248 Guyana A/37/40 (1982), 249–264 Uruguay A/37/40 (1982), 265–297 Iran (Islamic Republic) A/37/40 (1982), 298–335 Sessions 17–19 Mexico A/38/40 (1983), 60–98 Iceland A/38/40 (1983), 99–134

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844

List of Concluding Observations

Australia A/38/40 (1983), 135–177 Austria A/38/40 (1983), 178–219 Nicaragua A/38/40 (1983), 220–254 Peru A/38/40 (1983), 255–290 France A/38/40 (1983), 291–335 Lebanon A/38/40 (1983), 336–373 Sessions 20–22 El Salvador A/39/40 (1984), 68–94 Sri Lanka A/39/40 (1984), 95–135 Guinea A/39/40 (1984), 136–160 New Zealand A/39/40 (1984), 161–192 Yugoslavia A/39/40 (1984), 193–238 India A/39/40 (1984), 239–286 Egypt A/39/40 (1984), 287–315 Gambia A/39/40 (1984), 316–363 Democratic People’s Republic of Korea A/39/40 (1984), 364–398 Panama A/39/40 (1984), 399–434 Chile A/39/40 (1984), 435–478 German Democratic Republic A/39/40 (1984), 479–540 Sessions 23–25 Chile A/40/40 (1985) (continued), 54–83 Trinidad and Tobago A/40/40 (1985), 84–146 Bolivarian Republic of Venezuela A/40/40 (1985), 147–175 Canada A/40/40 (1985), 176–250 Union of Soviet Socialist Republics A/40/40 (1985), 251–319 Byelorussian Soviet Socialist Republic A/40/40 (1985), 320–381 Dominican Republic A/40/40 (1985), 382–429 New Zealand (Cook Islands) A/40/40 (1985), 430–464 Spain A/40/40 (1985), 465–517 United Kingdom of Great Britain and Northern Ireland A/40/40 (1985), 518–580 Afghanistan A/40/40 (1985), 581–627 Ukrainian Soviet Socialist Republic A/40/40 (1985), 628–681 Sessions 26–28 Luxembourg A/41/40 (1986), 47–100 Sweden A/41/40 (1986), 101–163 Finland A/41/40 (1986), 164–225 Mongolia A/41/40 (1986), 226–260 Federal Republic of Germany A/41/40 (1986), 261–314 Czechoslovakia A/41/40 (1986), 315–370 Hungary A/41/40 (1986), 371–410

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845

Sessions 29–30 Poland A/42/40 (1987), 55–104 Tunisia A/42/40 (1987), 105–148 El Salvador A/42/40 (1987), 149–180 Senegal A/42/40 (1987), 181–223 Congo A/42/40 (1987), 224–255 Zaire A/42/40 (1987), 256–293 Romania A/42/40 (1987), 294–345 Iraq A/42/40 (1987), 346–390 Sessions 31–33 Trinidad and Tobago A/43/40 (1988), 44–88 Zambia A/43/40 (1988), 89–144 Denmark A/43/40 (1988), 145–199 Rwanda A/43/40 (1988), 200–240 Guinea A/43/40 (1988), 241–272 Central African Republic A/43/40 (1988), 273–309 Ecuador A/43/40 (1988), 310–356 France A/43/40 (1988), 357–412 Australia A/43/40 (1988), 413–460 Belgium A/43/40 (1988), 461–507 Colombia A/43/40 (1988), 508–546 Barbados A/43/40 (1988), 547–581 Japan A/43/40 (1988), 582–633 Sessions 34–36 Norway A/44/40 (1989), 51–95 Mexico A/44/40 (1989), 96–139 United Kingdom of Great Britain and Northern Ireland (Dependent Territories) A/44/40 (1989), 140–189 Netherlands A/44/40 (1989), 190–232 Togo A/44/40 (1989), 233–270 Uruguay A/44/40 (1989), 271–311 Philippines A/44/40 (1989), 312–362 New Zealand A/44/40 (1989), 363–404 Bolivia A/44/40 (1989), 405–453 Cameroon A/44/40 (1989), 454–486 Mauritius A/44/40 (1989), 487–540 Italy A/44/40 (1989), 541–609 Sessions 37–39 Democratic Yemen A/45/40 vol. 1 (1990), 39–71 Union of Soviet Socialist Republics A/45/40 vol.1 (1990), 72–119

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846

List of Concluding Observations

Portugal A/45/40 vol. 1 (1990), 120–169 Chile A/45/40 vol. 1 (1990), 170–211 Argentina A/45/40 vol. 1 (1990), 212–243 St Vincent and the Grenadines A/45/40 vol. 1 (1990), 244–281 Costa Rica A/45/40 vol. 1 (1990), 282–320 Federal Republic of Germany A/45/40 vol.1 (1990), 321–354 Dominican Republic A/45/40 vol. 1 (1990), 355–387 Nicaragua A/45/40 vol. 1 (1990), 388–427 San Marino A/45/40 vol. 1 (1990), 428–454 Viet Nam A/45/40 vol. 1 (1990), 455–494 Tunisia A/45/40 vol. 1 (1990), 495–537 Zaire A/45/40 vol. 1 (1990), 538–583 Sessions 40–42 Canada A/46/40 (1991), 45–101 Finland A/46/40 (1991), 102–141 Spain A/46/40 (1991), 142–185 Ukrainian Soviet Socialist Republic A/46/40 (1991), 186–228 Morocco A/46/40 (1991), 229–257 India A/46/40 (1991), 258–312 Sweden A/46/40 (1991), 313–350 United Kingdom of Great Britain and Northern Ireland A/46/40 (1991), 351–414 Panama A/46/40 (1991), 415–453 Sri Lanka A/46/40 (1991), 454–491 Sudan A/46/40 (1991), 492–521 Madagascar A/46/40 (1991), 522–566 Jordan A/46/40 (1991), 567–617 Iraq A/46/40 (1991), 618–656 Session 43 Morocco (continued) A/47/40 (1994), 48–79 Austria A/47/40 (1994), 80–124 Poland A/47/40 (1994), 125–181 Iraq A/47/40 (1994), 182–218 Ecuador A/47/40 (1994), 219–263 Algeria A/47/40 (1994), 264–299 Peru A/47/40 (1994), 300–349 Colombia A/47/40 (1994), 350–394 Belgium A/47/40 (1994), 395–430 Yugoslavia A/47/40 (1994), 431–469 Republic of Korea A/47/40 (1994), 470–518 Belarus A/47/40 (1994), 519–561 Mongolia A/47/40 (1994), 562–602

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Session 44 Algeria CCPR/C/79/Add.1 (1992); A/47/40 (1994), 264–299 Peru CCPR/C/79/Add.8 (1992); A/47/40 (1994), 300–349 Colombia CCPR/C/79/Add.2 (1992); A/47/40 (1994), 350–394 Belgium CCPR/C/79/Add.3 (1992); A/47/40 (1994), 395–430 Yugoslavia CCPR/C/79/Add.4 (1992); A/47/40 (1994), 431–469 Session 45 Republic of Korea CCPR/C/79/Add.6 (1992); A/47/40 (1994), 470–518 Belarus CCPR/C/79/Add.5 (1992); A/47/40 (1994), 519–561 Mongolia CCPR/C/79/Add.7 (1992); A/47/40 (1994), 562–602 Session 46 (A/48/40 (1993) is an available mimeographed version of the full later report) Burundi CCPR/C/79/Add.9 (1992); A/48/40 (1993), 45–80 Senegal CCPR/C/79/Add.10 (1992); A/48/40 (1993), 81–114 United Republic of Tanzania CCPR/C/79/Add.12 (1992); A/48/40 (1993), 146–189 Iran (Islamic Republic of) CCPR/C/79/Add.25 (1993); A/48/40 (1993), 190–270 Venezuela (Bolivarian Republic of) CCPR/C/79/Add.13 (1992); A/48/40 (1993), 271–310 Bosnia and Herzegovina CCPR/C/79/Add.14 (1992); A/48/40 (1993), 311–332 Croatia CCPR/C/79/Add.15 (1992); A/48/40 (1993), 333–362 Federal Republic of Yugoslavia (Serbia and Montenegro) CCPR/C/79/Add.16 (1992); A/48/40 (1993), 363–389 Session 47 Niger CCPR/C/79/Add.17 (1993); A/48/40 (1993), 390–427 Dominican Republic CCPR/C/79/Add.18 (1993); A/48/40 (1993) 428–466 Uruguay CCPR/C/79/Add.19 (1993); A/48/40 (1993), 467–510 Guinea CCPR/C/79/Add.20 (1993); A/48/40 (1993), 511–550 Session 48 Ireland CCPR/C/79/Add.21 (1993); A/48/40 (1993), 551–616 Hungary CCPR/C/79/Add.22 (1993); A/48/40 (1993), 617–665 Egypt CCPR/C/79/Add.23 (1993); A/48/40 (1993), 666–710 Bulgaria CCPR/C/79/Add.24 (1993); A/48/40 (1993), 711–755 Session 49 (A/49/40 (1994) is an available mimeographed version of the full later report) Iceland CCPR/C/79/Add.26 (1993); A/49/40 (1994), 69–83 Norway CCPR/C/79/Add.27 (1993); A/49/40 (1994), 84–97 Japan CCPR/C/79/Add.28 (1993); A/49/40 (1994), 98–116

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848

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Malta CCPR/C/79/Add.29 (1993); A/49/40 (1994), 117–131 Romania CCPR/C/79/Add.30 (1993); A/49/40 (1994), 132–149 Session 50 Costa Rica CCPR/C/79/Add.31 (1994); A/49/40 (1994), 150–165 Mexico CCPR/C/79/Add.32 (1994); A/49/40 (1994), 166–182 Cameroon CCPR/C/79/Add.33 (1994); A/49/40 (1994), 183–208 El Salvador CCPR/C/79/Add.34 (1994); A/49/40 (1994), 209–224 Session 51 Jordan CCPR/C/79/Add.35 (1994); A/49/40 (1994), 226–244 Togo CCPR/C/79/Add.36 (1994); A/49/40 (1994), 245–270 Italy CCPR/C/79/Add.37 (1994); A/49/40 (1994), 271–290 Azerbaijan CCPR/C/79/Add.38 (1994); A/49/40 (1994), 291–311 Cyprus CCPR/C/79/Add.39 (1994); A/49/40 (1994), 312–333 Slovenia CCPR/C/79/Add.40 (1994); A/49/40 (1994), 334–353 Burundi CCPR/C/79/Add.41 (1994); A/49/40 (1994), 354–370 Session 52 Nepal CCPR/C/79/Add.42 (1994); A/50/40 (1996), 60–78 Tunisia CCPR/C/79/Add.43 (1994); A/50/40 (1996), 79–98 Morocco CCPR/C/79/Add.44 (1994); A/50/40 (1996), 99–122 Libyan Arab Jamahiriya CCPR/C/79/Add.45 (1994); A/50/40 (1996), 123–143 Session 53 Argentina CCPR/C/79/Add.46 (1995); A/50/40 (1996), 144–165 New Zealand CCPR/C/79/Add.47 (1995) A/50/40 (1996), 166–191 Paraguay CCPR/C/79/Add.48 (1995); A/50/40 (1996), 192–223 Haiti CCPR/C/79/Add.49 (1995); A/50/40 (1996), 224–241 Yemen CCPR/C/79/Add.51; A/50/40 (1996), 242–265 United States of America CCPR/C/79/Add.50 (1995), 266–304 Session 54 Latvia CCPR/C/79/Add.53 (1995) Russian Federation CCPR/C/79/Add.54 (1995) Sri Lanka CCPR/C/79/Add.56 (1995) Ukraine CCPR/C/79/Add.52 (1995) United Kingdom of Great Britain and Northern Ireland CCPR/C/79/Add.55 (1995) Session 55 Estonia CCPR/C/79/Add.59 (1995) Sweden CCPR/C/79/Add.58 (1995) United Kingdom of Great Britain and Northern Ireland (Hong Kong) CCPR/C/ 79/Add.57 (1995)

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849

Session 56 Guatemala CCPR/C/79/Add.63 (1996) Mauritius CCPR/C/79/Add.60 (1996) Nigeria CCPR/C/79/Add.64 (1996) Spain CCPR/C/79/Add.61 (1996) Zambia CCPR/C/79/Add.62 (1996) Session 57 Brazil CCPR/C/79/Add.66 (1996) Nigeria CCPR/C/79/Add.65 (1996) Peru CCPR/C/79/Add.67 (1996) Session 58 Peru (continued) CCPR/C/79/Add.72 (1996) Denmark CCPR/C/79/Add.68 (1996) Gabon CCPR/C/79/Add.71 (1996) Germany CCPR/C/79/Add.73 (1996) Switzerland CCPR/C/79/Add.70 (1996) United Kingdom of Great Britain and Northern Ireland (Hong Kong) CCPR/C/ 79/Add.69 (1996) Session 59 Bolivia CCPR/C/79/Add.74 (1997) Colombia CCPR/C/79/Add.76 (1997) Georgia CCPR/C/79/Add.75 (1997) Lebanon CCPR/C/79/Add.78 (1997) Portugal (Macau) CCPR/C/79/Add.77 (1997) Session 60 France CCPR/C/79/Add.80 (1997) India CCPR/C/79/Add.81 (1997) Slovakia CCPR/C/79/Add.79 (1997) Session 61 Belarus CCPR/C/79/Add.86 (1997) Iraq CCPR/C/79/Add.84 (1997) Jamaica CCPR/C/79/Add.83 (1997) Lithuania CCPR/C/79/Add.87 (1997) Senegal CCPR/C/79/Add.82 (1997) Sudan CCPR/C/79/Add.85 (1997) Session 62 Cyprus CCPR/C/79/Add.88 (1998) Finland CCPR/C/79/Add.91 (1998)

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850

List of Concluding Observations

Uruguay CCPR/C/79/Add.90 (1998) Zimbabwe CCPR/C/79/Add.89 (1998) Session 63 Algeria CCPR/C/79/Add.95 (1998) Ecuador CCPR/C/79/Add.92 (1998) Israel CCPR/C/79/Add.93 (1998) Italy CCPR/C/79/Add.94 (1998) Former Yugoslav Republic of Macedonia CCPR/C/79/Add.96 (1998) United Republic of Tanzania CCPR/C/79/Add.97 (1998) Session 64 Armenia CCPR/C/79/Add.100 (1998) Austria CCPR/C/79/Add.103 (1998) Belgium CCPR/C/79/Add.99 (1998) Iceland CCPR/C/79/Add.98 (1998) Japan CCPR/C/79/Add.102 (1998) Libyan Arab Jamahiriya CCPR/C/79/Add.101 (1998) Session 65 Canada CCPR/C/79/Add.105 (1999) Chile CCPR/C/79/Add.104 (1999) Costa Rica CCPR/C/79/Add.107 (1999) Lesotho CCPR/C/79/Add.106 (1999) Session 66 Cambodia CCPR/C/79/Add.108 (1999) Mexico CCPR/C/79/Add.109 (1999) Poland CCPR/C/79/Add.110 (1999) Romania CCPR/C/79/Add.111 (1999) Session 67 Cameroon CCPR/C/79/Add.116 (1999) Hong Kong Special Administrative Region CCPR/C/79/Add.117 (1999) Morocco CCPR/C/79/Add.113 (1999) Norway CCPR/C/79/Add.112 (1999) Portugal (Macau) CCPR/C/79/Add.115 (1999) Republic of Korea CCPR/C/79/Add.114 (1999) Session 68 Republic of the Congo CCPR/C/79/Add.118 (2000) Guyana CCPR/C/79/Add.121 (2000) Mongolia CCPR/C/79/Add.120 (2000) United Kingdom and Northern Ireland (Crown dependencies) CCPR/C/79/ Add.119 (2000)

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851

Session 69 Australia A/55/40 vol. 1, 498–528 (2000) Ireland A/55/40 vol. 1, 422–451 (2000) Kuwait CCPR/CO/69/KWT (2000) Kyrgyz Republic CCPR/CO/69/KGZ (2000) Session 70 Argentina CCPR/CO/70/ARG (2000) Denmark CCPR/CO/70/DNK (2000) Gabon CCPR/CO/70/GAB (2000) Peru CCPR/CO/70/PER (2000) Trinidad and Tobago CCPR/CO/70/TTO (2000) Session 71 Croatia CCPR/CO/71/HRV (2001) Dominican Republic CCPR/CO/71/DOM (2001) Syrian Arab Republic CCPR/CO/71/SYR (2001) Uzbekistan CCPR/CO/71/UZB (2001) Venezuela CCPR/CO/71/VEN (2001) Session 72 Czech Republic CCPR/CO/72/CZE (2001) Democratic People’s Republic of Korea CCPR/CO/72/PRK (2001) Republic of Guatemala CCPR/CO/72/GTM (2001) Monaco CCPR/CO/72/MCO (2001) Netherlands CCPR/CO/72/NET (2001) Session 73 Azerbaijan CCPR/CO/73/AZE (2001) Switzerland CCPR/CO/73/CH (2001) Ukraine CCPR/CO/73/UKR (2001) United Kingdom of Great Britain and Northern Ireland UK and Overseas Territories CCPR/CO/73/UKOT (2001) Session 74 Georgia CCPR/CO/74/GEO (2002) Hungary CCPR/CO/74/HUN (2002) Sweden CCPR/CO/74/SWE (2002) Session 75 The Gambia CCPR/CO/75/GMB (2002) New Zealand CCPR/CO/75/NZL (2002) Republic of Moldova CCPR/CO/75/MDA (2002) Viet Nam CCPR/CO/75/VNM (2002) Yemen CCPR/CO/75/YEM (2002)

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852

List of Concluding Observations

Session 76 Egypt CCPR/CO/76/EGY (2002) Togo CCPR/CO/76/TGO (2002) Session 77 Estonia CCPR/CO/77/EST (2003) Luxembourg CCPR/CO/77/LUX (2003) Mali CCPR/CO/77/MLI (2003) Session 78 El Salvador CCPR/CO/78/SLV (2003) Israel CCPR/CO/78/ISR (2003) Portugal CCPR/CO/78/PRT (2003) Slovakia CCPR/CO/78/SVK (2003) Session 79 Latvia CCPR/CO/79/LVA (2003) Philippines CCPR/CO/79/PHL (2003) Russian Federation CCPR/CO/79/RUS (2003) Equatorial Guinea CCPR/CO/79/GNQ (2003) Sri Lanka CCPR/CO/79/LKA (2003) Session 80 Colombia CCPR/CO/80/COL (2004) Germany CCPR/CO/80/DEU (2004) Lithuania CCPR/CO/80/LTU (2004) Suriname CCPR/CO/80/SUR (2004) Uganda CCPR/CO/80/UGA (2004) Session 81 Belgium CCPR/CO/81/BEL (2004) Liechtenstein CCPR/CO/81/LIE (2004) Namibia CCPR/CO/81/NAM (2004) Serbia and Montenegro CCPR/CO/81/SEMO (2004) Session 82 Albania CCPR/CO/82/ALB (2004) Benin CCPR/CO/82/BEN (2004) Finland CCPR/CO/82/FIN (2004) Morocco CCPR/CO/82/MAR (2004) Poland CCPR/CO/82/POL (2004) Session 83 Greece CCPR/CO/83/GRC (2005) Iceland CCPR/CO/83/ISL (2005)

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853

Kenya CCPR/CO/83/KEN (2005) Mauritius CCPR/CO/83/MUS (2005) Uzbekistan CCPR/CO/83/UZB (2005) Session 84 Slovenia CCPR/CO/84/SVN (2005) Syrian Arab Republic CCPR/CO/84/SYR (2005) Tajikistan CCPR/CO/84/TJK (2005) Thailand CCPR/CO/84/THA (2005) Yemen CCPR/CO/84/YEM (2005) Session 85 Canada CCPR/C/CAN/CO/5 (2005) Brazil CCPR/C/BRA/CO/2 (2005) Italy CCPR/C/ITA/CO/5 (2005) Paraguay CCPR/C/PRY/CO/2 (2005) Session 86 Hong Kong Special Administrative Region CCPR/C/HKG/CO/2 (2006) Democratic Republic of the Congo CCPR/C/COD/CO/3 (2006) Norway CCPR/C/NOR/CO/5 (2006) Session 87 Central African Republic CCPR/C/CAF/CO/2 (2006) United Nations Interim Administration Mission in Kosovo CCPR/C/UNK/CO/ 1 (2006) United States of America CCPR/C/USA/CO/3 Rev.1 (2006) Session 88 Bosnia and Herzegovina CCPR/C/BIH/CO/1 (2006) Honduras CCPR/C/HND/CO/1 (2006) Republic of Korea CCPR/C/KOR/CO/3 (2006) Ukraine CCPR/C/UKR/CO/6 (2006) Session 89 Barbados CCPR/C/BRB/CO/3 (2007) Chile CCPR/C/CHL/CO/5 (2007) Madagascar CCPR/C/MDG/CO/3 (2007) Session 90 Grenada CCPR/C/GRD/CO/1 (2007) Czech Republic CCPR/C/CZE/CO/2 (2007) Sudan CCPR/C/SDN/CO/3 (2007) Zambia CCPR/C/ZMB/CO/3 (2007)

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Session 91 Algeria CCPR/C/DZA/CO/3 (2007) Austria CCPR/C/AUT/CO/4 (2007) Costa Rica CCPR/C/CRI/CO/5 (2007) Georgia CCPR/C/GEO/CO/3 (2007) Libyan Arab Jamahiriya CCPR/C/LBY/CO/4 (2007) Session 92 Botswana CCPR/C/BWA/CO/1 (2008) Panama CCPR/C/PAN/CO/3 (2008) Former Yugoslav Republic of Macedonia CPR/C/MKD/CO/2 (2008) Tunisia CCPR/C/TUN/CO/5 (2008) Session 93 France CCPR/C/FRA/CO/4 (2008) Ireland CCPR/C/IRL/CO/3 (2008) San Marino CCPR/C/SMR/CO/2 (2008) United Kingdom of Great Britain and Northern Ireland CCPR/C/GBR/CO/6 (2008) Session 94 Denmark CCPR/C/DNK/CO/5 (2008) Japan CCPR/C/JPN/CO/5 (2008) Monaco CCPR/C/MCO/CO/2 (2008) Nicaragua CCPR/C/NIC/CO/3 (2008) Spain CCPR/C/ESP/CO/5 (2008) Session 95 Australia CCPR/C/AUS/CO/5 (2009) Rwanda CCPR/C/RWA/CO/3 (2009) Sweden CCPR/C/SWE/CO/6 (2009) Session 96 Azerbaijan CCPR/C/AZE/CO/3 (2009) Chad CCPR/C/TCD/CO/1 (2009) Netherlands CCPR/C/NLD/CO/4 (2009) United Republic of Tanzania CCPR/C/TZA/CO/4 (2009) Session 97 Croatia CCPR/C/HRV/CO/2 (2009) Ecuador CCPR/C/ECU/CO/5 (2009) Republic of Moldova CCPR/C/MDA/CO/2 (2009) Russian Federation CCPR/C/RUS/CO/6 (2009) Switzerland CCPR/C/CHE/CO/3 (2009)

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Session 98 Argentina CCPR/C/ARG/CO/4 (2010) Mexico CCPR/C/MEX/CO/5 (2010) New Zealand CCPR/C/NZL/CO/5 (2010) Uzbekistan CCPR/C/UZB/CO/3 (2010) Session 99 Cameroon CCPR/C/CMR/CO/4 (2010) Colombia CCPR/C/COL/CO/6 (2010) Estonia CCPR/C/EST/CO/3 (2010) Israel CCPR/C/ISR/CO/3 (2010) Session 100 Belgium CCPR/C/BEL/CO/5 (2010) El Salvador CCPR/C/SLV/CO/6 (2010) Hungary CCPR/C/HUN/CO/5 (2010) Jordan CCPR/C/JOR/CO/4 (2010) Poland CCPR/C/POL/CO/6 (2010) Session 101 Mongolia CCPR/C/MNG/CO/5 (2011) Republic of Serbia CCPR/C/SRB/CO/2 (2011) Slovakia CCPR/C/SVK/CO/3 (2011) Togo CCPR/C/TGO/CO/4 (2011) Republic of Seychelles CCPR/C/SEY/CO/1 (2011) Session 102 Bulgaria CCPR/C/BGR/CO/3 (2011) Ethiopia CCPR/C/ETH/CO/1 (2011) Kazakhstan CCPR/C/KAZ/CO/1 (2011) Session 103 Islamic Republic of Iran CCPR/C/IRN/CO/3 (2011) Jamaica CCPR/C/JAM/CO/3 (2011) Kuwait CCPR/C/KWT/CO/2 (2011) Norway CCPR/C/NOR/CO/6 (2011) Malawi CCPR/C/MWI/CO/1 (2011) Session 104 Cape Verde CCPR/C/CPV/CO/1 (2012) Dominican Republic CCPR/C/DOM/CO/5 (2012) Guatemala CCPR/C/GTM/CO/3 (2012) Turkmenistan CCPR/C/TKM/CO/1 (2012) Yemen CCPR/C/YEM/CO/5 (2012)

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Session 105 Armenia CCPR/C/ARM/CO/2 (2012) Iceland CCPR/C/ISL/CO/5 (2012) Kenya CCPR/C/KEN/CO/3 (2012) Lithuania CCPR/C/LTU/CO/3 (2012) Maldives CCPR/C/MDV/CO/1 (2012) Session 106 Bosnia and Herzegovina CCPR/C/BIH/CO/2 (2012) Germany CCPR/C/DEU/CO/6 (2012) Philippines CCPR/C/PHL/CO/4 (2012) Portugal CCPR/C/PRT/CO/4 (2012) Turkey CCPR/C/TUR/CO/1 (2012) Session 107 Angola CCPR/C/AGO/CO/1 (2013) Hong Kong Special Administrative Region of the People’s Republic of China CCPR/C/CHN-HKG/CO/3 (2013) Macao Special Administrative Region of the People’s Republic of China CCPR/C/CHN-MAC/CO/1 (2013) Paraguay CCPR/C/PRY/CO/3 (2013) Peru CCPR/C/PER/CO/5 (2013) Belize CCPR/C/BLZ/CO/1 (2013) Session 108 Albania CCPR/C/ALB/CO/2 (2013) Czech Republic CCPR/C/CZE/CO/3 (2013) Finland CCPR/C/FIN/CO/6 (2013) Indonesia CCPR/C/IDN/CO/1 (2013) Tajikistan CCPR/C/TJK/CO/2 (2013) Ukraine CCPR/C/UKR/CO/7 (2013) Session 109 Plurinational State of Bolivia CCPR/C/BOL/CO/3 (2013) Djibouti CCPR/C/DJI/CO/1 (2013) Mauritania CCPR/C/MRT/CO/1 (2013) Mozambique CCPR/C/MOZ/CO/1 (2013) Uruguay CCPR/C/URY/CO/5 (2013) Session 110 Chad CCPR/C/TCD/CO/2 (2014) Kyrgyzstan CCPR/C/KGZ/CO/2 (2014) Latvia CCPR/C/LVA/CO/3 (2014) Nepal CCPR/C/NPL/CO/2 (2014)

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Sierra Leone CCPR/C/SLE/CO/1 (2014) United States of America CCPR/C/USA/CO/4 (2014) Session 111 Chile CCPR/C/CHL/CO/6 (2014) Georgia CCPR/C/GEO/CO/4 (2014) Ireland CCPR/C/IRL/CO/4 (2014) Japan CCPR/C/JPN/CO/6 (2014) Malawi CCPR/C/MWI/CO/1/Add.1 (2014) Sudan CCPR/C/SDN/CO/4 (2014) Session 112 Burundi CCPR/C/BDI/CO/2 (2014) Haiti CCPR/C/HTI/CO/1 (2014) Israel CCPR/C/ISR/CO/4 (2014) Malta CCPR/C/MLT/CO/2 (2014) Montenegro CCPR/C/MNE/CO/1 (2014) Sri Lanka CCPR/C/LKA/CO/5 (2014) Session 113 Cambodia CCPR/C/KHM/CO/2 (2015) Côte d’Ivoire CCPR/C/CIV/CO/1 (2015) Croatia CCPR/C/HRV/CO/3 (2015) Cyprus CCPR/C/CYP/CO/4 (2015) Monaco CCPR/C/MCO/CO/3 (2015) Russian Federation CCPR/C/RUS/CO/7 (2015) Session 114 Canada CCPR/C/CAN/CO/6 (2015) France CCPR/C/FRA/CO/5 (2015) Spain CCPR/C/ESP/CO/6 (2015) Former Yugoslav Republic of Macedonia CCPR/C/MKD/CO/3 (2015) United Kingdom of Great Britain and Northern Ireland CCPR/C/GBR/CO/7 (2015) Uzbekistan CCPR/C/UZB/CO/4 (2015) Bolivarian Republic of Venezuela CCPR/C/VEN/CO/4 (2015) Session 115 Austria CCPR/C/AUT/CO/5 (2015) Benin CCPR/C/BEN/CO/2 (2015) Greece CCPR/C/GRC/CO/2 (2015) Iraq CCPR/C/IRQ/CO/5 (2015) Republic of Korea CCPR/C/KOR/CO/4 (2015) San Marino CCPR/C/SMR/CO/3 (2015)

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Suriname CCPR/C/SUR/CO/3 (2015) Session 116 Costa Rica CCPR/C/CRI/CO/6 (2016) Namibia CCPR/C/NAM/CO/2 (2016) New Zealand CCPR/C/NZL/CO/6 (2016) Rwanda CCPR/C/RWA/CO/4 (2016) Slovenia CCPR/C/SVN/CO/3 (2016) South Africa CCPR/C/ZAF/CO/1 (2016) Sweden CCPR/C/SWE/CO/7 (2016) Session 117 Argentina CCPR/C/ARG/CO/5 (2016) Burkina Faso CCPR/C/BFA/CO/1 (2016) Denmark CCPR/C/DNK/CO/6 (2016) Ecuador CCPR/C/ECU/CO/6 (2016) Ghana CCPR/C/GHA/CO/1 (2016) Kazakhstan CCPR/C/KAZ/CO/2 (2016) Kuwait CCPR/C/KWT/CO/3 (2016) Session 118 Azerbaijan CCPR/C/AZE/CO/4 (2016) Colombia CCPR/C/COL/CO/7 (2016) Jamaica CCPR/C/JAM/CO/4 (2016) Morocco CCPR/C/MAR/CO/6 (2016) Poland CCPR/C/POL/CO/7 (2016) Republic of Moldova CCPR/C/MDA/CO/3 (2016) Slovakia CCPR/C/SVK/CO/4 (2016) Session 119 Bangladesh CCPR/C/BGD/CO/1 (2017) Bosnia and Herzegovina CCPR/C/BIH/CO/3 (2017) Italy CCPR/C/ITA/CO/6 (2017) Serbia CCPR/C/SRB/CO/3 (2017) Thailand CCPR/C/THA/CO/2 (2017) Turkmenistan CCPR/C/TKM/CO/2 (2017) Session 120 Honduras CCPR/C/HND/CO/2 (2017) Liechtenstein CCPR/C/LIE/CO/2 (2017) Madagascar CCPR/C/MDG/CO/4 (2017) Mongolia CCPR/C/MNG/CO/6 (2017) Pakistan CCPR/C/PAK/CO/1 (2017) Switzerland CCPR/C/CHE/CO/4 (2017)

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Swaziland CCPR/C/SWZ/CO/1 (2017) (no report) Session 121 Australia CCPR/C/AUS/CO/6 (2017) Cameroon CCPR/C/CMR/CO/5 (2017) Democratic Republic of the Congo CCPR/C/COD/CO/4 (2017) Dominican Republic CCPR/C/DOM/CO/6 (2017) Jordan CCPR/C/JOR/CO/5 (2017) Mauritius CCPR/C/MUS/CO/5 (2017) Romania CCPR/C/ROU/CO/5 (2017) Session 122 El Salvador CCPR/C/SLV/CO/7 (2018) Guatemala CCPR/C/GTM/CO/4 (2018) Hungary CCPR/C/HUN/CO/6 (2018) Lebanon on CCPR/C/LBN/CO/3 (2018) Norway CCPR/C/NOR/CO/7 (2018) Session 123 Algeria CCPR/C/DZA/CO/4 (2018) Bahrain CCPR/C/BHR/CO/1 (2018) Lao People’s Democratic Republic CCPR/C/LAO/CO/1 (2018) Liberia CCPR/C/LBR/CO/1 (2018) Lithuania CCPR/C/LTU/CO/4 (2018) The Gambia CCPR/C/GMB/CO/2 (2018) (no report) Session 124 Belarus CCPR.C.BLR.CO.5 (2018) Belize CCPR/C/BLZ/CO/1/Add.1 (2018) Bulgaria CCPR/C/BGR/CO/4 (2018) Guinea CCPR/C/GIN/CO/3 (2018) Sudan CCPR/C/SDN/CO/5 (2018)

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I N T E R N AT I O N A L CO VE N A N T O N CI V I L A N D PO LI T I C A L R I G H T S

PREAMBLE PART I PART II PART III

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P R EA MBLE The States Parties to the present Covenant Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles:

PA RT I Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

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2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PA RT II Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

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Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART I I I Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

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3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 8 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations.

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Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own.

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3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. Article 13 An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have

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legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 15 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Article 16 Everyone shall have the right to recognition everywhere as a person before the law.

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Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

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Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. Article 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. Article 24 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

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2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality. Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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INDEX

abortion 92 4, 163 5, 169 court authorisation, waiving of requirement 164 denial of services 4, 93 4, 164, 202 3, 481 2, 548, 665 6, 783 physicians’ objections 164 5 sex-selective 93 unsafe 93 Abrusci, Elena 759 access to public service 721 6 affirmative action 722 3 appropriate remedies 725 6 fairness in disciplinary proceedings 723 4 ‘general terms of equality’ 721 2 accessory character, defined 59 60, 68 9, 88 accountability 124 5 adultery, discriminatory laws 100 advertising, languages of 767, 796 affiliation, political/community discrimination on grounds of 715 16 and electoral candidacy 718 requirement to declare 719 see also parties, political affirmative action 33, 104, 722 3, 742 4 distinguished from reasonable accommodation 742 rationale for 742 see also special measures African Charter on Human and Peoples’ Rights 13, 154 and right of self-determination 39 African Court on Human and Peoples’ Rights 13 and margin of appreciation 15 Afrikaans (language), ban on use of 744 5, 767, 799 age as criterion for employment/dismissal 699 700 discrimination on grounds of 780 1 as qualification for voting/candidacy 709 of retirement 738, 780 1 see also children; juvenile accused; marriageable age Agenda for Sustainable Development 631 air space/airports, obligations regarding use of 66 airline pilots, retirement age 738, 780

870

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albinism 783 Algeria (claimed) states of emergency 118 Family Code 450 legislation in breach of Covenant rights 77 8 aliens basis of distinction from nationals 776 denial of aid/opportunities to 778 lawfully in State territory 359 60 see also expulsion of aliens American Convention on Human Rights 12 13 non-derogable rights 121 amnesty programmes 84 for political prisoners 736 7 for torture/ill-treatment 183 amparo, right of 123 4, 126 anti-Semitism, expressions of 521, 559, 566 7, 579, 582 4 appeal(s) 418 22 convictions overturned on 423 evidential procedure 421 2 expulsion decisions 364 arbitrariness 26, 30 1, 253 64, 279 80 of conviction/prison sentencing 714 15 defined 151 2, 241, 253 deprivation of rights 241 determining features 470 1 distinguished from unlawfulness 143 4 and electoral candidacy 705 in electoral procedure 712 evolving/converging definition(s) 30 1 and expulsion of aliens 361 2, 367 8 and freedom of movement 349 52 and increased sentences 438 9 of interference in family life 639 40, 644 5, 680 of interference with privacy 463 71, 484, 486 7, 497 8 see also arbitrary deprivation of life arbitrary deprivation of life 30, 143 4, 151 4 authorised by domestic law 151 2 by mandatory imposition of death penalty 156 7 through inconsistency with international/domestic law 153 4

Index while in detention 160 2 Argentina, dictatorship/enforced disappearances 451, 678 9 armed conflict Committee concerns 167 8 international humanitarian law during 119 involvement of children 671 2 see also war armed forces differential treatment on retirement 733 4, 775 6 inadmissibility of court appeals by 745 trade unions 627 arrest defined 250 1 notification of reasons for 265 6, 400, 673 4 warrants 264 5 see also house arrest art, works of, (alleged) national security/public order implications 570, 572 Article 1 2 drafting process 37 8, 43 6 implementation 52 3, 55 6 individual inapplicability 47 8 interaction with other articles 41 2, 789 problems of application 56 7 role in interpretation of other rights 53 4, 56 States’ failure of reporting obligations 55 6, 57 text 36 Article 1(1) 46 8 drafting process 46 7 Article 1(2) 49 51 on indigenous peoples 50 1 Article 1(3) 52 3 drafting process 52 on State obligations 52 Article 2 645 6 accessory character 59 61, 68 9 applied to children 663 4 centrality to Covenant 86 and comprehensive coverage 74 interaction with other articles 503, 542, 593, 612 13, 656, 789 91 significance/reach 59 text 58 as tool for changing domestic laws 76 8 violations in conjunction with 61 Article 2(1) 62 9, 352, 730 distinguished from other provisions 68 9 immediacy of obligations 62 4 importance within Covenant scheme 786 reporting procedure 63 4 terminology 67 8 territorial scope 64 6 twin obligations (‘respect’/‘ensure’) 64 Article 2(2) 69 74 Committee findings under 60 compliance with other conventions 72 incompatibility of reservations with 73 4 incorporation into domestic law 70 2 stipulations to States 69 70, 75

871

terms of limitation 72 3 Article 2(3) 78 86 duty to investigate 82 4 invoked in combination with other Articles 80 1, 145 6 range of circumstances for invoking 79 80 range of remedies 81 2 Article 2(3)(a) 78 84 and State protective obligations 81 Article 2(3)(b) 85 Article 2(3)(c) 85 6 Article 3 730 accessory character 68 9, 88 distinguished from other articles 68 9, 88 drafting history 88 9 implementation 104 interaction with other articles 91, 104 5, 140 1, 173, 327 8, 632, 791 resistance to implementation 90 1 situations in which engaged 91 103 text 87 Article 2 concerns as to need for 109 distinctive features 127 8 drafting process 109 10, 112, 121 4 implementation 111, 125 8 interaction with other articles 108, 515, 728 international role 107 8 text 106 Article 4(1) 108 21 Committee decisions on 113 18 interrelation with other provisions on nondiscrimination 120 1 on obligations under international law 118 19 terminology 112 Article 4(2) 121 4 conformity of domestic law with 127 Article 4(3) 124 5 Article 2 drafting process 131, 132, 133 fundamental objectives 136 7 implementation 136 interaction with other articles 540, 728 interpretive principles 129 30 role in national democracy 694 text 129 Article 5(1) 129 34, 136 acts targeted by 133 4 prohibition on destructive acts 132 3 as restraint on States 130 1 Article 5(2) 130, 134 5, 136 Article 2 applicability during armed conflict 167 applied to children 664 5 fundamental principles/scope 139 40 implementation 168 9 interaction with other articles 140 1, 142, 145 6, 155 6, 169, 172 3, 247, 279 80, 284, 303, 333 4, 344, 416, 446, 502, 540, 592 3, 612 13, 632, 791

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872

Index

Article 2 (cont.) standard of arbitrariness 30 1 text 138 Article 6(1) 142 51 implementation 168 scope of application 169 70 Article 6(2) 154 7, 168 9 Article 6(3) 157, 168 9 Article 6(4) 157 8, 168 9 Article 6(5) 158, 168 9 Article 6(6) 159 Article 2 applied to children 665 9 implementation 215 16 interaction with other articles 140 1, 172 4, 177, 189, 197 8, 248, 285 9, 302 3, 317 18, 414 16, 446 7, 459, 540 1, 791 and medical neglect 301 3 and mental integrity 199 200 non-derogable character 175 6 reservations to 215 scope of application 217 standards of proof 192 3 summary 216 17 text 171 Article 3 4 applied to children 669 72 current interpretations 239 enforcement 238 9 implementation 237 9 interaction with other articles 173, 223 4, 229, 239, 632, 791 non-derogable character 220 scope of application 239 text 218 Article 8(1) 224 5 Article 8(2) 226 31 Article 8(3) 220 1 derogations from 236 7 Article 8(3)(a) 232 3 Article 8(3)(b) 233 4 Article 8(3)(c) 234 7 Article 2 3 applied to children 672 4 drafting history 253 4 implementation 277 9 interaction with other articles 80 1, 140, 142, 173, 242, 243 6, 247, 249, 262, 279 80, 284, 326 7, 333 4, 358, 446, 459 60, 502, 541, 592 3, 612 13, 791 2 (non-)derogability 243 protective safeguards 278 9 reservations 277 8 scope of application 241 3 standard of arbitrariness 30 1, 241 3 text 240 1 Article 9(1) 241, 246 64 Article 9(2) 241 2, 264 7, 673 4 Article 9(3) 241 2, 267 73, 674 Article 9(4) 242, 273 7, 674

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Article 9(5) 242, 277 Article 3 drafting history 283 implementation 315 16 interaction with other articles 174, 177, 189, 197 9, 284 9, 317 18, 502, 541, 632 3 (non-)derogability 282 objectives 282 text 281 Article 10(1) 285 309, 317 18 and access to medical care 300 3 applied to children 675 6 Article 10(2) 285 Article 10(2)(a) 309 11 Article 10(2)(b) 311 12, 405 Article 10(2)(c) 313 14, 318 Article 10(3) 285, 312 15, 318 Article 3 4 drafting history 319 20 frequency of recourse to 322 3 implementation 322 3 interaction with other articles 319 (non-)derogability 323 sphere of operation 320 2 text 319 Article 4 applied to children 676 7 derogations from 344 5 distinguished from regional provisions 325 6 drafting history 337, 346, 347 implementation 352 interaction with other articles 326 30, 333 4, 343 4, 350 2, 353, 502, 541, 593, 696, 792, 806 7 limitation provisions 326, 352 range of violations 353 territorial scope 333 4 text 325 Article 12(1) 326, 330 3 equal application to all 332 3 Article 12(2) 326, 334 6 equal application to all 336 Article 12(3) 326, 337 45, 353 Article 12(4) 326, 345 52, 353 interaction with other provisions 279 80 Article 4 applied to children 676 7 central purpose 354 5, 367 8 drafting history 356 implementation 367 interaction with other articles 357 9, 367 8, 372 3 text 354 Article 14 155 6 application/interaction of detailed provisions 371 2, 428 declarations/reservations 371, 427 flexible terms 428 implementation 371 2, 426 7, 428

Index interaction with other articles 81, 327, 357, 372 3, 375 6, 414 16, 427 8, 430, 460, 502 3, 541, 593, 696 7, 792 objectives 371 2, 427 8 strict terms 428 text 369 70 Article 14(1) 373 96, 406 Article 14(2) 173, 396 9 Article 14(3) 399 Article 14(3)(a) 399 400 Article 14(3)(b) 400 4 violations 404 Article 14(3)(c) 404 6 objectives 405 6 Article 14(3)(d) 406 11 Article 14(3)(e) 411 13 Article 14(3)(f) 413 14 Article 14(3)(g) 192 3, 414 16 claims under 414 16 Article 14(4) 416 18 applied to children 677 8 findings under 418 Article 14(5) 418 22 Article 14(6) 422 4 failures of implementation 423 4 Article 14(7) 424 6 failures of implementation 425 6 limits of scope 425 Article 4 implementation 443 4 interaction with other articles 430 interaction with other international instruments 430 non-derogability 434, 443 objectives 429 30, 444 reservations/declarations 444 text 429 Article 15(1) 261, 262, 431 41, 444 adjudication of claims under 435 6 drafting process 437, 439 40 ‘international law’ provision 432 3 and newly constituted courts 433 Article 15(2) 441 3 alleged superfluity 442 area of application 442 3 proposed deletion 442 Article 4 applied to children 678 9 central principle 445 6 drafting process 455 6 implementation 455 6 interaction with other articles 229, 446 7, 451 2, 453 4, 633 non-derogability 456 scope of application 456 7 situations of vulnerability under 447 55, 456 7 text 445 Article 4 as basis for impugning the law 462 3

873

implementation 462, 496 7 interaction with other articles 173 4, 279 80, 284, 350 2, 372 3, 459 60, 470, 541, 633, 637 9, 641 2, 679 84, 697, 792 key elements 471 96 legality issues 460 3 scope 458 9 and sexual identity 19 20 text 458 Article 4 breadth of scope 499 501 and conscientious objection 20 2 implementation 534 5 interaction with other articles 141, 173 4, 284, 327 8, 460, 502 3, 515, 536, 541, 580, 584 5, 592, 613, 633, 695 6, 697, 792 3, 804 international importance 536 non-derogability 515, 534 5 text 499 Article 18(1) Committee findings under 508 10, 536 7 immunity from limitation 509 relationship with 18(4) 530 Article 18(2) origins 504 5 Article 18(3) 515 17 phrasing 515 16 Article 18(4) 530 4 Article 4 derogations from 577 distinguished from other articles 501, 583 4 implementation 576 7 interaction with other articles 141, 173 4, 503, 540 2, 566 7, 578, 580, 584 5, 589 90, 592, 595 6, 608 9, 624 5, 793 text 538 Article 19(1) 542 4 Article 19(2) 544 51 Article 19(3) 539 40, 551 77 disciplines applicable to limitation 551 62 grounds of limitation 562 76 Article 4 antecedents/drafting history 579 80 breadth of remit 589 90 implementation 585 8 interaction with other articles 540, 566 7, 578, 580, 584 5, 589 90 role in national democracy 694 text 579 Article 20(1) 581 1 reservations to 589 Article 20(2) 579, 581 5 (inconsistency of) application 582 4 interaction with other articles 580 reservations to 589 scope 581 2 States’ failure to enact 586 8 Article 4 5 derogations from 608

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874

Index

Article 4 5 (cont.) drafting history 592, 594 5, 597 8 implementation 606 8 interaction with other articles 540, 541, 544, 580, 592 3, 595 6, 608 9, 695 6, 793 text 591 wording 594 5, 596 7 Article 4 5 drafting history 614 15, 616 17, 618, 619 20, 621 2, 627 implementation 628 interaction with other articles 503, 541, 544, 580, 592, 612 13, 622, 624 5, 695 6, 793 scope 614 19 terms of limitation 619 27 text 610 Article 22(1) 614 19 Article 22(2) 619 27 Article 22(3) 627 8 Article 5 approaches in differing circumstances 637 45 drafting history 632, 634 5, 645 6, 653 implementation 655 7; range of approaches to 656, 657; requirements for 657 8; standards of 656 interaction with other articles 350 1, 459 60, 632 3, 637 9, 641 2, 658, 679 84, 793 reservations to 655 6 status within Covenant 631 2 text 630 unusual features 657 Article 23(1) 634 7 wording 634 5 Article 23(2) 645 50 wording 646, 647 Article 23(3) 650 2 Article 23(4) 653 5 standards/problems of implementation 656 Article 5 6 demands on family/society 688, 691 development within Covenant scheme 659 61 drafting history 660 1 implementation 688 90 interaction with other articles 284, 451 2, 459 60, 541, 633, 639, 660 1, 662, 690 1, 793 4 relationship with other international instruments 661 2 specific demands on State 688, 690 1 text 659 Article 24(1) 634 and age of responsibility 677 8 and conditions of detention 675 6 and cruel, inhuman or degrading treatment 665 9 and family matters 679 84 and legal personality 678 9 and migrant/displaced children 676 7 and non-discrimination 663 4 and right to liberty 672 4 and right to life 664 5 and slavery/servitude/forced labour 669 70

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Article 24(2) 662, 664, 685 6 implementation 688 Article 24(3) 662, 664, 686 8 implementation 688 Article 5 ‘adverse effect’ criterion 708 declarations/reservations 727 distinction between right and opportunity 701 drafting history 697 8 implementation 726 7 interaction with other articles 53 4, 284, 540, 544, 593, 612, 695 7, 728, 794 non-prescriptive approach to systems of government 693 4, 709 position within Covenant scheme 693 5, 727 8 scope of application 697 8, 701 3, 709 significance for national democracy 693 4 text 692 ‘without Article 2 distinctions’ criterion 698 704 ‘without unreasonable restrictions’ criterion 704 5 Article 5 applied to children 663 4 autonomy 69 distinguished from other articles 68 9 drafting history 730 1 implementation 783 6 importance within Covenant scheme 786 inconsistency in application 786 interaction with other articles 104 5, 173 4, 284, 327 8, 374 6, 503, 542, 593, 612 13, 633, 697, 730, 789 91 key elements 729 30 relationship with other international instruments 751 2 and sexual identity 19 20 text 729 Article 27 332, 822 absence of limitation provisions 822 antecedents 787 8 drafting history 789, 795 6 elements of violation 806 11 exploitation amounting to a denial of rights under 808 10, 822 implementation 819 22 interaction with other articles 54, 343 4, 503, 542, 548 9, 612 13, 789 94, 804, 806 7 text 787 wording 789, 805 6, 809 Article 50 75 6 assembly, right of see peaceful assembly association, right of see freedom of association asylum 333 Committee debates on 356 and extradition 356 7 as fundamental right 356 minors and 667 8, 672 3, 683 4 Atlantic Charter (1941) 37 attacks on honour and reputation see honour and reputation

Index Australia commentary on self-determination 46 discriminatory emergency measures 120 electoral system 712 failure to implement Covenant rights 74 federal structure 76 federal vs. Aboriginal law 395 immigration law 200, 255 7, 347 8, 466 7 sexual orientation/identity laws 19 20, 462 3, 473 4, 759 62 stance on territorial jurisdiction 64 5 Austria, contingency public order plans 72 authorities, prejudicial public statements 398 authorship, false attribution of 495 Azerbaijan, commentary on self-determination 46 Bahrain, reservations on religious grounds 74 bail, refusal of 397 ballot papers, examination of 547 Bautista, Nydia 79 Bayefsky, Anne 751 Belarus electoral code 554, 718 19 public assembly laws 592, 596, 603 4 Belgium, judicial system 722 3 belief see religion/belief birth, discrimination on grounds of 779 80 births, registration of 229, 452 3, 662, 664, 685 6 benefits 685 countries lacking in 452 3 discriminatory regulation 663 4, 686 failures to comply with 685 6 objectives 452 potential consequences of failure 453 blasphemy laws, incompatibility with Covenant 586, 588 blood transfusions, religious objections to 520 body searches 488 bonded labour 227, 319 books, provision in prison 308 ‘breadwinner’ criterion (for social security benefits) 732, 755 7 Breton (language) 819 Buergenthal, Thomas 110, 130 1, 132 3, 135, 136 7 burden of proof in discrimination cases 745 7, 749 50 and limitations on freedom of expression 560 reversal of 397, 432 caging (of accused) 397 8 Cameroon, political climate 715 Canada abolition of death penalty 18 19, 159 60 extradition treaties/decisions 18 19, 150, 151 immigrant health care 145, 782 3 immigration/nationality law 346 9 indigenous peoples 50, 56, 332, 706 7, 758, 805 6, 814 15, 817 18 law on conscientious objection 21 Mountie uniform 748 9

875

candidacy, electoral conflicts of interest 720 disqualification from 705 language requirements 701, 767 8 minimum support requirement 718 19 party affiliation requirement 705, 718 requirement to declare affiliation 719 residence/nationality requirements 702 3 unreasonable grounds of exclusion 709 10 cannabis, possession/use of 520, 740, 770, 804 5 capital punishment see death penalty Capotorti, Francesco 68 casinos, employment conditions 738 Cassese, Antonio 47 cattle grazing, establishment of rights in 818 censorship see correspondence; media Centro de Estudios y Acción para la Paz (CEAPAZ) 666 Chad, slavery in 225 Charter of the United Nations 37, 38 child benefit, eligibility for 740 1 children 659 91 abduction 666, 682 adoption 650 age of criminal responsibility 677 in armed conflict situations 167 8 best interests of, as prime consideration 484 5, 661 2, 673, 680 care homes, conditions in 664 5 contact with non-custodial parent 61, 461, 485 6, 642 3, 654 5 Covenant vs. ICESCR/other rights 689 90 custody of 102, 485 6, 497, 642 4, 681 2 definition 660 deportation 666 8 detention of see under detention disabilities/personality disorders 781 2 DNA testing 479 domestic courts’ mishandling of issues 682 domestic violence against 654, 669 doubts as to age 668 early marriage 648, 684 exploitation/forced labour 225, 228 9 failure to investigate disappearance 666 gender assignment 96, 203, 669 illegitimate, discrimination against 660 1, 664, 741, 779 80, 785 involuntary hospitalisation 673 legal personality 451 2, 678 9 living rough 670 medical experiments on 214 15 migrant/displaced 187, 667 8, 683 4 military service 236, 671 2 minority-race/language: disadvantaging in schools 803 nationality 102, 686 8 protection on marriage break-up 634 5, 655 protective measures 6, 26, 141, 451 2 recognition of special requirements 659 60 registration of birth see births, registration of

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876

Index

children (cont.) rehabilitation of victims 688 9 separation from parents 483 5, 679 80 sexual abuse 98, 174, 576, 669 70; false accusations of 384 5 State failure to protect 644 5 State intervention in care of 682 3, 688 unborn, rights of 456 Chile, indigenous peoples 50 Churchill, Winston 37 citizenship denial of applications for 464, 777 8 distinctions based on 776 7 civil disobedience 436 coercion 506 7 distinguished from proselytism 505 and freedom of opinion 543 non-religious 507 prohibition 504 5 cohabitation, recognition as equivalent to marriage 636, 756 7 collective aspects of religion 525 9 leadership 528 obstacles to 527 8, 529 organisational ethos 525 7 private vs. public spaces 529 teaching/preaching 528 9 worship 529 collective punishment/misuse 449 50, 494 collective rights 41 2 non-justiciability of claims under OP1 40, 47 8 Colombia (attempted) derogations under Article 4 113 human rights violations 79 police use of force 142 3, 152 Commission on the Status of Women 632 Committee on Economic, Social and Cultural Rights (CESCR) 6, 743 4 and right of self-determination 40 1 Committee on the Elimination of Racial Discrimination (CERD) 42 Committee on the Rights of the Child 417 18, 532, 644 compensation for confiscated property 734 5, 776 7 for hate crime 587 for miscarriage of justice 422 4 for unlawful detention 277 to victims’ families 197 Conference on Security and Co-operation in Europe (CSCE) 611 confession(s) see under torture confidentiality, professional duty of 476 Congo, Democratic Republic of 113 14 conscientious objection 20 2, 173, 235 6 change of Committee position on 508 9, 773 duration of non-military service 737 (illegality of) prosecution for 235, 423

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imprisonment for 697 in non-military context 511 13 (potential) ill-treatment of objectors 187 preferential treatment of certain groups 748 refusal of application for 510 on religious grounds 507 11, 535, 748, 772 3 repeated prosecutions for 424, 425 6 right of 235 contempt of court 33 4, 573, 705, 714, 717 contractual obligations, inability to fulfil 319 24 criminal law’s independence of 321, 324 failure to make restitution 321 2, 324 family law 320 1 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 89, 738 9, 751 Convention on the Rights of the Child 119, 532, 661 2, 670 1, 691 conversion (religious) forced/coerced 150 1 legal declaration of death following 449 corporal punishment of children 668 9 in detention 207 8 correspondence, prisoners’ 491 censorship 491 restrictions on 308 9 corruption alleged, among judges 392 3, 724 5 reporting of 492 Counsel competence 404 privacy/confidentiality of communication 402 right of communication with 402 4 counterdemonstration, right of 606 courts/tribunals biased/arbitrary operation 384 6 competence 389 90, 395 equal access to 376 7 established by law 396 impartiality 390, 393 6; reasons for doubting 393 4 independence 390 3 (see also judicial independence) language of 800 (see also interpretation/ translation) newly constituted 433 proceedings, amounting to cruel/inhuman treatment 200 1 religious 395 review of judgments 418 22 special jurisdiction 395 6, 736 see also equality before courts/tribunals Covenant rights applicability to all persons 24 features in common 4 5 indivisibility 5 6, 27 8, 223 interdependence 32, 728 interoperability 32 4 mutual interpretive influence 28 31

Index targeting for destruction 133 4 see also collective rights; legal rights; permanent rights Craven, Matthew 89 criminal charges determination of 380 1 minimum guarantees 399 requirement of prompt action on 241 2, 674 right to be informed of 264 5, 266 7, 372, 399 400, 548 see also innocence, presumption of criminal investigation, as necessary remedy 82 3 criminal offences abolition 440 defined 431 deportation on grounds of see under expulsion new, creation of 435 6 State obligation to define 433 4 criminal responsibility, age of see under juveniles croupiers, financial situation 738 cruel, inhuman or degrading punishment, defined/ distinguished from treatment 205 6 see also capital punishment; corporal punishment; life sentences cruel, inhuman or degrading treatment 4 amnesty/statute of limitations 183 burden of proof 181 2 and children’s rights 665 9 Committee recommendations 179 80 court proceedings as 200 1 definition/examples 177, 193 duty to investigate 178 80 duty to prosecute 180 1 failure to investigate promptly/thoroughly 178 80 and gender discrimination 93 7 medical examination following 180 medical neglect following 301 2 methods of investigation 179 by non-State actors 177 8 overlapping Covenant provisions on 172 4 provisions in other international instruments 171 2 redress 181 relationship of Article 10(1) to 287 9 (risk of) impunity 183 safeguards against 188 9, 216 socio-economic factors 205 State obligations 176 89 in victim’s home 199 see also degrading treatment; inhuman treatment; torture customary law 395 Czech Republic, property restitution schemes 734 5, 776 7 data protection 475 death, legal declaration of 447, 449 death in custody 160 2, 493, 726 abuse by cellmates 162 from deprivation 306 7

877

establishment of cause 161 existing medical conditions 161 2, 303 presumption of arbitrariness 160 1 under torture 286 death penalty 140, 154 60, 168 9, 209 13 abolition 159, 169, 211, 440 assignation of Counsel to those facing 410 carried out in secret 198 9 commuted to imprisonment 261, 749 50 conditions for imposition 154 7 excessive delay in carrying out 210 11 extradition to countries applying 18 19, 149 50, 159 60 following unfair trial 416 for (ill-defined) terrorist offences 434 imposition by incompetent tribunals 389 information of families 548 insufficient delay in carrying out 211 12 issue of warrant 209 10 mandatory imposition 76 7, 156 7 means of execution 209 moratorium on 156 7 offences not subject to 154 5 reclassification of sentences carrying 380 review process 422 right to seek pardon/commutation 157 8, 380 sentencing of minors/pregnant women 158, 210, 665 (see also juveniles) unlawful/summary imposition 143 4, 146 7 in violation of Article 6/14 210 death row conditions 212 13, 289 inmates’ mental health 200, 212 13 time spent on 210 12 death threats 645, 721 2, 753 failure to respond to 144 and freedom of movement 333 4, 350 and right of personal security 246 7 debt, imprisonment for see contractual obligations debt bondage 226 7, 319 defined 226 decolonisation 37 8, 42 3, 57 defamation 33, 134, 564 6, 576 compatibility with freedom of expression 565 6 detention on charges of 264 proposed decriminalisation 565 6 retraction of 492 3 State misuse of laws on 566 defence adequate facilities to prepare 402 availability of witnesses to 411 13 preparation of 270, 400 4 time to prepare 401 2 see also Counsel degrading treatment, threshold/findings of 287 9, 317, 571 see also cruel, inhuman or degrading treatment democratic society centrality to limitation provisions 598 9 differing interpretations 598

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878

Index

democratic society (cont.) essential characteristics 598 600 freedoms as foundation of 501 and limitations on manifestation of religion 516 (potential) misappropriation of concept 597 8 requirement in modern world 693 and right of assembly 592, 597 600, 609 and right of association 621 2 role of Article 25 693 4 role of pluralism 599 600 demonstration, right of 605 6 State obligations 609 denial of justice 384, 385 6 denominational schools 533 4 State vs. private funding 534, 735, 742 3, 749, 769, 802 deportation see expulsion; extradition derogation 107 28 accountability to other States Parties 124 5, 128 circumstances permitting 108 21 compatibility with responsibilities under international law 118 19 distinguished from limitation 107 features in common with limitation 107 non-discriminatory requirement 119 21 notification procedure 107, 124 5 permitted extent 112 18, 344 5 and rule of law 110 11 termination 124 see also non-derogable rights destructive acts, prohibition on 132 3 detention abuse by cellmates 162 access to information 548 access to lawyers 265, 300, 674 of aliens 243 (alleged) excessive restraint 175 applicability of all Covenant rights 283 arbitrary 30 1, 245 6, 253 64, 272 3, 279 80, 672 of asylum seekers 672 3 cell size 295 of children/juveniles 245, 273, 276, 304 5, 672 6 conditions 32, 97, 177, 193, 243, 292 309, 675 6 death during see death in custody defined 250 1 denial of access to sites 189 denial of religious requirements 307 8 discriminatory 264 exacerbation of medical conditions 302 excessive/discriminatory sentencing 243 4 exercise/recreation in 296 exposure to wet/temperature extremes 298 9 food/water, deprivation/poor quality of 305 7 gender segregation 309 health requirements 298 incommunicado 186, 196 7, 242, 268 9, 288, 289, 317, 404, 448, 674 (see also solitary confinement)

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incompatible with Covenant provisions 261 3, 275, 279 80 insanitary conditions 294 5, 298, 306 7 judicial control 267 73 lack of grounds for 254 lack of natural light 297 8 lack of ventilation 298 mandatory 254 8 medical care 146, 161 2, 300 3 minimum standards 292 3 out-of-cell time 295 6 overcrowding 293 4, 295, 306 pending extradition 256 pending trial see pre-trial detention political 244 5, 254, 263 4, 313 14, 507, 715 16, 774 preventive 258 60, 261 2, 398 9, 438 9 psychological effects 673 in punishment for legitimate exercise of Covenant rights 263 4, 279 sleeping amenities 299 State obligations 184 in state of emergency 116, 118, 123 treatment during 177, 193 (see also cruel, inhuman or degrading treatment; torture) unjustified extension 144, 257, 261 2 (un)lawful see lawfulness of detention vulnerable groups/individuals 304 5 work opportunities 297 see also immigration detention; imprisonment; solitary confinement differential treatment access to limited resources 735 amounting to discrimination 733 6 in national laws 2 not amounting to discrimination 736 8, 806 7 property restitution schemes 734 5 Dinstein, Yoram 525, 802 disability discrimination on grounds of 664, 781 2 forced medical intervention 480 1 and legal capacity 453 4 disappearance see enforced disappearance disciplinary proceedings 723 4 discrimination 4 in absence of intent 745 on age grounds 780 1 on birth grounds 779 80 comparable cases 746 7 criteria for 26, 750 2 differential treatment amounting to 733 6 differential treatment not amounting to 736 8 on disability grounds 781 2 discriminatory purpose/intent 744 5 in failure to differentiate 742 grounds of 730, 750 83; ‘hierarchy’ of 750 2 (see also specific grounds) indirect 739 42, 772 (lack of) definition 730, 732, 738 9

Index linguistic 766 8 miscellaneous grounds 782 3 onus of proof 749 50 ‘other status’ 780 political 774 5; accompanying abuses 774 5 proof-related issues 745 50 on property grounds 778 relevant characteristic, criterion of 747 relevant class, criterion of 747 8 and right to adopt 650 and right to marry 645 6 situations not qualifying as 746, 757 status of victim 748 9 terminology 67 8, 742 see also affirmative action; disability; gender discrimination; nationality, discrimination on grounds of; non-discrimination; racial discrimination; religious discrimination; special measures displacement, internal 329, 330, 331 2, 353 distinction(s) age-based 699 700, 738 distinguished from discrimination 67 8 language-based 701 politically based 700 1, 702 DNA testing 244, 478 9, 496, 641 domestic laws 4 conflict with Covenant provisions 134, 360 1, 607 8 and freedom of expression 551 6, 576 7 and hate speech: excessive breadth 584, 585; failure to implement 586 8 higher standards of protection than Covenant provisions 134 HRC recommendations regarding 9 10 implementation of Covenant see implementation as main heading incorporation of Covenant provisions 70 2, 135, 551 2; omissions 74 interpretive role of domestic courts 360 1, 435 6 (lack of) self-determination provisions 56 omission of particular grounds of discrimination 785 6 precise formulation 552 3 and state of emergency see emergency, state(s) of subordinate to international law 432 3 tools for change 76 8 and torture/ill-treatment 215 16 transparency 553 domestic violence 94, 102 3, 177 8, 204 5 against children 654, 669 against migrant women 103 double jeopardy see ne bis in idem drug offences 366, 425 staged operations 431 2 see also cannabis due process of law, bypassing of 470 1 dwarf tossing 135, 744

879

economic crisis, as basis of derogation 110 education of disabled/disordered children 781 2 grants 746 minorities’, in own culture 801 3 religious 395, 530 4, 684 (see also denominational schools) right to 522; vs. freedom of religion 532 3 scrutiny/rejection of materials 545 segregation of minorities 803 staff, dismissal/failure to advance 721 2, 726, 750 see also private schools; public schools; universities Eide, Asbjørn 5 elections 709 20 ballot papers, examination of 547 challenges to system 711 12 conduct of 710 democratic principles 710 11 electoral districts 711 electoral system requirements 710 13 integrity of proceedings 716 17 and language proficiency 717 18 persecution/intimidation of candidates 774 5 prisoners and see imprisonment remedying of irregularities 711 13 voters encouraged to boycott 567 8 see also candidacy; voting emergency, state(s) of 83, 109 12, 125 7, 535, 608 discriminatory measures under 119 21 and forced labour 236 7 geographical scope 110 (in)compatibility with domestic law 115, 116 ‘interests of the people’ criterion 109 10 issues arising 115 18 legality of declaration 116 and non-derogable rights 122 4 official proclamation, requirement of 110 12, 115 protection limited to citizens/permanent residents 120 situations qualifying as 110 undue prolongation 116 17 unjustified proclamation 107 8, 115 16, 118 violations of Covenant rights under 116, 117 (see also specific rights) see also detention; natural disaster employers, religious bodies as 525 6 enforced disappearance 162 3, 193 5, 249, 289, 317, 447 8, 617 Articles prosecuted under 194 burden of proof 182 of children 672 Committee jurisprudence 448 failure to inform relatives 486 international declarations on 195, 447 8 legal declaration of death following 449 levels of incidence 195 obligation to investigate 195 victims’ families 197, 200, 448, 548, 640, 678 9

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880

Index

epidemics 606 equal protection of the law 729 30, 731 2 denial of 774 equality access to public service 721 6 accommodation of diversity 512 13 evolution as principle/obligation 67 of gender 97, 372, 654 marriage and 454 5 (see also spouses) positive/negative formulations 89 terminology 67 8 workplace 525 6 see also equality before the law; spouses equality before courts/tribunals 97, 372, 373 81 application to all persons 375 application to all proceedings 374 determination of criminal charges 380 1 discriminatory violations 375 6 equal access 376 7 equality of arms, principle of 377 80, 411 and time frames 378 9 equality before the law 729 30 defined 730 1 deprivation of right 731 ‘reasonable and objective’ criteria 732 3 see also differential treatment; equal protection before the law; equality before courts/tribunals ethnic profiling 328 European Convention on Human Rights 12 compared with/distinguished from ICCPR 14 22, 72, 121, 430, 598 9, 632 direct application under domestic law 71 and right of self-determination 39 European Court of Human Rights 12 balancing of concurrent rights 22 ‘living instrument’ approach 17 18, 19 and margin of appreciation 14 European Social Charter 12 euthanasia 165 6 independent/judicial oversight 166 right to 165 eviction(s) (from home) 488 90, 641 2 mass 490 repeated 489 90 evidence ability to contest 378 in appellate court 421 2 contradictory/missing 254 new, review based on 421, 423 execution see death penalty exit visas 335 6 experimentation, medical/scientific 213 15 consent requirement 213 in detention 213 waivers of consent 214 expressive freedoms dependence of other rights on 32 distinguishing features 27 8 inseparability 27 interoperability 33 4, 544

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expulsion distinguished from criminal charges 380 1 excessive use of force in course of 153 failure to give reasons 470 1 on grounds of criminal conduct 346 9, 350 2, 466, 468 9 legal requirements 30 of minors 666 8 obligation to avoid if risk of harm 65, 147 51, 176 separation of families 466 8, 483 5, 637 41, 679 80 State obligations 184 8 see also expulsion of aliens; extradition expulsion of aliens arbitrary 361 2, 367 8 choice of country of destination 355 husbands of native women 463 and lawful presence in State territory 359 60 legal basis 360 2 limits on State prerogatives 359 mass 356 procedural safeguards 354 5 reasons of national security 365 6 right of representation 364 right of review 363 4; denial of 365 right to submit reasons against 362 3; denial of 365 risk of harm following 362 3 extradition Committee debates on 356 Covenant protections 357 credibility of risk 185, 186 7 detention pending 256 to face life imprisonment 206 inadequate assessment of risk 186 judicial nature of procedure 357 rationale for 184 risk of death penalty 18 19, 159 60, 169 risk of torture/ill-treatment 184 8 treaties 149 50, 356 trial for further offences following 363 4 see also expulsion fair hearing, right to 32, 371 2, 373 4, 383 96 and appeal proceedings 421 burden of proof 385 and the death penalty 210 definition of ‘fair hearing’ 383 4 limitations 16 non-derogability 123 and presence of accused 406 qualities required of tribunal 389 96 time limits 386 7 see also public hearing fairness, standards of 31 see also procedural fairness; unfairness false rumours 494, 555 6 family/ies 482 6, 631 2 access to detainees 300, 491, 674 blood feuds 329

Index child custody/access 485 6, 642 4 codes 450 1 collective punishment 450, 494 common residence criterion 636 continuation after termination of marriage 636 cultural traditions 637 defined 482 3, 635 7 failure to inform relatives of circumstances 486 as foundation of society 631 2 ‘interference-based’ approach 638 40, 658 positive State obligations 639 40, 658 protection by society/the State 26, 634 5, 642 3, 657 residence status 483 reunification 640 1, 681 right to found 645 6, 647, 649 50 role in upholding children’s rights 691 role upholding children’s rights 688 separation 255 6, 350 1, 466 9, 483 5, 637 41, 679 80 State failure to protect 643, 644 5 victims’, distress caused to 197 9, 217, 286 see also cohabitation; home family life, right to see private and family life Fascist organisations checks on rise of 694 limits on freedom of expression 132 3 proposals to limit freedom of assembly/ association 621 2 federal structures 75 6 female genital mutilation 101, 177 8, 186, 203 4, 666 7 Finland development projects on indigenous land 812 13, 815 16, 817 indigenous peoples 51, 707 law on conscientious objection 20 1 fishing discriminatory allocation of rights/quotas 733, 735 disputes within indigenous communities 813 14 proof of rights 817 18 role in indigenous culture 805, 808, 810 11 sustainability issues 813 forced labour 220 1, 232 7, 783 defined 220, 232 in detention 234 5, 297 enforcement of provisions on 238 9 exclusions from definition 234 7 implementation of provisions on 237 9 and normal civic obligations 237 in states of emergency 236 7 unusual questions arising 233 see also children foster-parenting 740 1 France atomic tests 51 2 differential treatment of ex-soldiers 733 4 domestic law on hate speech 583 4 dress laws 99, 327, 517 18, 519, 521 2, 524, 536 7, 770 2

881

early civil rights law 2 and the ICC 707 8 minority groups/languages 819 see also New Caledonia fraud 320, 321 freedom, rights of see expressive freedoms; specific rights listed below freedom of association 245, 610 12 and armed forces/police 627 and civil rights 611 compulsion to join 614 16, 617 18, 629 distinguished from right of assembly 598 interaction with other freedoms 628 9 international importance 611 12 interpretive influence on other rights 28 necessity in a democratic society 621 2 ‘prescribed by law’ requirement 620 1 prior authorisation requirement 625 right to found/join 614 19 and rights/freedoms of others 626 7 terms of limitation 619 27, 629 see also trade unions freedom of conscience 513, 535, 629 and conscientious objection 235 and gender discrimination 99 freedom of expression 544 51 duties/responsibilities attached 539 40, 562 4, 577 8 and gender discrimination 100 interplay with other rights 11, 327, 521, 538 9, 544, 584 5, 586, 591, 608 9, 624 5 limitations on see limitations on freedom of expression objectives, defined 539 respect for rights/reputations of others 564 8 scope 544 5 freedom of movement 325 6 and gender discrimination 97 limitations on see limitations on freedom of movement private restrictions 329 30 and states of emergency 118 freedom of opinion 542 4 defined 542 non-derogability 543 relationship with freedom of expression 538 9 freedom of religion 499 501, 513 vs. freedom of expression 584 5 and gender discrimination 99 and military service see under conscientious objection restrictions on 353, 528 9 in the workplace 512 13 see also manifestation of religion freedom of thought, conscience and religion breadth of definition 499 501 internal/external spheres of operation 500

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882

Index

freedom of thought, conscience and religion (cont.) role in democratic society 501 see also freedom of conscience; freedom of religion freedom to leave a country 334 6 non-contingent nature 336 fundamental rights, defined/referenced 515 16, 591 game reserves 822 gay pride 605 6 Gayssot Act see Nuremberg Tribunal gender see equality; gender discrimination; women gender discrimination 87 105, 450 1, 526, 654, 754 66 areas of concern 90 1 in domestic legislation 450 1 and expressive freedoms 96 100, 328 history of legislation on 88 91 in inheritance law 779 and legal procedure 372 place in ‘hierarchy’ 751 2 positive moves to combat 743 and pregnancy/abortion 92 4 in public service 703 4 and religious dress 772 remedial legislation 755 residence permits 757 8 and right to life 91 2 in social security legislation 732 3, 741, 755 between spouses 653, 757 9, 776 State obligations to combat 90, 658 and violence against women 94 6 see also sexual orientation General Comments (of Human Rights Committee) 11 on children’s rights 688 9 on derogation 108 on family life 635, 654 on federal structures 75 6 on freedom of expression 546, 549 50, 551 3, 558, 562, 568 9, 577, 592, 620 1, 765 6 on freedom of movement 349, 351 2 on freedom of religion 514 on gender discrimination 90, 91 on hate speech 589 on juvenile offenders 417 18 on manifestation of religion 516 on (non-)discrimination 738 9, 743 4 on participation in public affairs 698, 709, 726 7 on propaganda for war 581 on religious discrimination 768 on remedies 81 2 on right to life 142 4, 147, 154, 163, 169 70 on self-determination 39 40, 43, 49 superseded by later versions 11 ‘general principles of law’ 441 3 genetically modified crops, protests against 708 Genocide Convention 157 Germany, applicability of pre-Unification laws 432 3

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good faith, principle of 113 ‘Good Friday Agreement’ (1998) 736 7 Guantanamo Bay 274 guardianship rights 678 9 removal 682 3 habeas corpus, right of 123 4, 126 Hannum, Hurst 39 Hartman, Joan 108 hate crime 243 compensation for victims 587 racial 754 hate speech see hatred, advocacy of hatred, advocacy of 34, 581 5, 694 definition/threshold 581 5 development of UN law on 579 80 vs. freedom of association 622, 626 7 and freedom of expression 586 prohibition by law 579, 585 8 Rabat Plan of Action 584 5 racial/religious 752, 754; distinguished 579 80 and sexual orientation 765 6 headgear see hijab; niqab; turban health see public health health care, provision of, and right to life 145 health insurance 756 7 Henkin, Louis 6 hijab, (prohibitions on) wearing 99, 506 7, 524 5 HIV/AIDS 783 testing for 480 Holocaust, denials of 558 9, 582 4 home 486 90 arbitrary interference with 486 7 defined 486 demolition 199, 488 90, 641 2 disputed status 489 searches/forced entry 199, 487 8, 641 2, 645 (termination of) tenancy 490, 753 see also eviction(s) honour and reputation, attacks on 492 6, 497, 564 accusations followed by court vindication of innocence 492 3 false attribution of authorship 495 false rumours 494 negative association 495 6 post-rape questioning 493 4 remedial steps/retraction 492 3 unlawfulness, criterion of 460, 492 unreasonable psychiatric examination 494 5 house arrest 243, 715 household benefits, reduction/abolition 739 40 human rights interdependence, interrelatedness and indivisibility 690 progress of international legislation 1 2 taxonomy of 2 3 see also Covenant rights Human Rights Committee 4 5 action on self-determination 39 40, 49, 55 6 application of margin of appreciation 15 16

Index Concluding Observations 7 8 individual members’ comments 76 8 limitations on powers 82 and ‘living instrument’ approach 18 22 State reports to 7 8, 111 supervisory role 7 Views 8 10 see also General Comments human rights defenders access to information 547 8 prosecutions 435 surveillance 477 8 violence/intimidation towards 141, 244, 248, 263 4, 775 Humphrey, John 27, 591, 608 hunger strikes 301, 574 identity checks 753 4 collective 474 protection of 4 ideology conversion system 774 immigration detention 245, 254 8, 290 2, 317 18, 358 9, 672 3 lack of segregation 304 psychological impact 290 1, 302, 680 separation of families 255 6, 466 7 unsatisfactory conditions 291 2 impeachment, of Government leaders 434 5, 716 17 implementation (of Covenant in domestic law) 7 8, 86 attention to detail 23, 25 institutions 74 5 limitation provisions 24 5, 28 9 means of 23 5 positive stipulations 24 5 progressive, (rejection of) proposals for 63 prohibitions 24 safeguards in domestic law 24 specifications as to ‘The Law’ 24 State obligations 22 3; non-compliance with 55 6 time limits 62 4 see also specific Articles imprisonment excessive sentences 206 7, 260 with hard labour 233 4 hunger strikes 574 for inability to fulfil contractual obligations 322 4 increase of term 437 9 preventive sentencing 258, 259 60 punishment cells 290 rehabilitation following 234, 313 15 release of political prisoners 736 7 transfer arrangements 262 3 and voting rights 308, 697, 704 5, 713 15 work undertaken during 234 5, 297 see also correspondence; death row; life sentences indigenous peoples

883

access to traditional activities/natural resources 50 1, 54, 246, 808 9, 814 17, 820 2 consent requirement 811 consultation with 809, 810 11 destruction of homeland/way of life 809 10, 814 15, 817 discrimination against 675; in courts 377; in emergency 120 disputes within communities 812 14 marriage with settlers 758, 805 6, 807 participation in public affairs 704, 706 7, 810 11 protection of culture 798 9, 805, 808 protection of land rights 542, 798, 807 8, 820 2 and right of self-determination 38 9, 40, 45 6 rights of residence 806 7 separate legal systems 395 unlawful raids on homes 487 8 information, right of access to 545 9, 624 5 online 549 restrictions 546, 695 6 see also personal information inheritance, discriminatory laws on hereditary titles, male vs. female line 101, 103, 733, 779 legitimate vs. illegitimate children 660 1, 664, 779 80, 785 inhuman treatment, threshold for 287 see also cruel, inhuman or degrading treatment innocence court findings establishing 493 vindication of 492 3 see also presumption of innocence institutions 74 5 Inter-American Court of Human Rights 12, 147 ‘living instrument’ approach 17 18 and margin of appreciation 15 inter-State complaints 10 interference with privacy/home/correspondence arbitrariness 463 71, 484, 486 7, 497 8, 644 5, 759 disproportionate impact 464 5 government authorisation 462, 477 8 grounds of national security 468, 471 inappropriate/unjust/unpredictable 470 1 objective justification 466 9 protection of the law against 461 2 ‘reasonable in the particular circumstances’ 463 4 unlawful 460 1, 487 8, 497 International Commission of Jurists (ICJ) 763 4 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 738 9, 743, 751 International Covenant on Civil and Political Rights (ICCPR) complementarity with ICESCR 5 6 consistency with other international instruments 135

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884

Index

(ICCPR) (cont.) differences in terminology between articles 67 8 grouping/complementarity of articles 3 4, 59 60 incorporation into domestic law 70 2 interplay between articles 5, 27 place in history of human rights legislation 1 2 potential for misinterpretation/abuse 136 7 see also Covenant rights; individual articles International Covenant on Economic, Social and Cultural Rights (ICESCR) 5 6, 689 90 drafting 618 International Criminal Court (ICC) 707 8 international humanitarian law 119 International Labour Organization (ILO) 220, 618, 627 8 International Law Commission (ILC) 10 Internet restrictions on 558 right of access to 549 interpretation/translation 379, 413 14 failure to provide 384, 413 14 inadequate facilities 414, 753 right of access to 402, 801 intersex procedures see children: gender assignment Iran, religious law 150 1 Ireland abortion law 92 3, 164, 202 3, 482, 548, 783 judicial system 736 irreparable harm, defined 148 Islamic States religious reservations to Covenant rights 73 4, 655 6 risks attendant on extradition to 149, 150 1 Istanbul Protocol 180 Italy Fascist party, attempted resurrection 133

Kaunda, Kenneth 247 Kiss, Alexandre 23, 47, 516, 598 9, 601 2, 608 Korea, (claimed) threats to national security 569 70, 623 Krishnaswami, Arcot 505 Kuwait, reservations to Covenant provisions 73 4, 104 Kyrgyzstan, use of torture 148 9

Jehovah’s Witnesses 748 Jordan, commentary on self-determination 46 journalists accreditation schemes 546 7 denial of accreditation 553 4, 572 3, 615 exposure of corruption 572 Parliamentary reporting 572 3 role in spread of information 546 7 violence/intimidation towards 141, 244, 263 4, 775 judges allegations of corruption 392 3, 724 5 applications for posts of 745 6 (avoidance of) bias 393, 394 (claimed) unavailability 406 comments by 492 dismissal 113 14, 391, 723 5; remedies 725 6 expiry of term 725 ‘faceless’ 395 6, 437 governmental control 390, 394

labour see forced labour language(s) ban on use of 744 5 discrimination on grounds of 701, 766 8 of law courts 800 minority, use of 545, 548 9, 568, 767, 796, 799 804, 819; bans on 803 4; decline in 803 4 proficiency, requirement of 717 18, 742, 767 8 State, protection/enforcement of 464 5 ‘The Law’, stipulations as to 24 law enforcement officials, use of (excessive/lethal) force 141, 142 3, 152 3, 247, 602, 645 Covenant/HRC checks on 143, 151 2 guidelines on 143, 154 (risk of) impunity 183 safeguards in domestic law 143 training in avoidance of 188 lawfulness of detention 251 2, 273 7 assessment of 32, 252 3, 275 judicial review of 276 7 relevant factors 276 7

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right to trial before 267 9 see also judicial independence judicial independence compromised under state of emergency 116 17 factors affecting 391 2 governmental restrictions 113 14 guarantees of 390 1 judicial review, of detention 276 7 judiciary see judges; judicial independence juries/jury trials (denial of) right of trial by 736 failure of system 383 4 impartiality 394 justice see denial of justice; fairness juvenile accused/offenders 318, 416 18, 660 age of criminal responsibility 416, 677 delay in bringing to trial 405 detention conditions 242, 313, 660, 675 6 exemption from death penalty 158, 210, 660 life sentences 207, 676 parents’/guardians’ right of access 418, 678 pre-trial detention 311 12 reform/social rehabilitation 313 15, 676 segregation from adult accused/offenders 305, 312 13, 675 6 trial procedure 677 8

Index right of compensation 277 right to challenge 273 4 League of Nations 37, 67 legal aid provision of 300, 376, 409 11 unavailability/obstructions to 408 9 legal personality 229 distinguished from capacity to act 446 recognition of children as possessing 451 2, 678 9, 685 scope/duration of application 455 6 substance of the right 445 6 legal representation assignation of 409 11 impeded 408 9 no substitute for presence of accused 406 7 refusal of 377 right to 364, 372, 402 4, 408 9, 412 see also Counsel lethal force, use of 30 1 lex certa see nulla poena sine lege certa lex mitior, principle of 437 41 (alleged) internal contradictions 437 when new law is more lenient 439 41 when old law is more lenient 437 9 when old and new laws are compatible 441 liberty, deprivation of arbitrary 253 64 lawfulness 251 3 as pretext for denying voting rights 714 15 liberty, right to 241 2, 250 64 and children’s rights 672 4 permissible limitations 251 3 safeguards 241 2 Libya, ‘Charter of Honour’ 449 50, 494 Liechtenstein, laws of succession 104 life, right to 79, 139 70 and expulsion/extradition 147 51 and gender discrimination 91 2 grounds for deprivation 142 3 organisational requirements 147 preventive measures to protect 144 51 protection by law, requirement of 142, 168 range of threats to 139 40 remedies 145 7 and right to personal security 247 State obligations 144 51, 169 vulnerable persons/groups 163, 664 5 see also arbitrary deprivation of life life sentences 206 7 on juveniles 207, 209 10, 676 lack of opportunity for work/recreation 297 shorter sentences increased to 437 8 without parole 676, 749 50 lighter penalty, application of see lex mitior limitations (on Covenant rights) 72 3, 252 3 Committee’s standards for 28 9 grounds of 26 on religious/ideological grounds 73 requirement of Covenant-consistency 29 30

885

rights not subject to 175 6, 509, 534 5 unreasonable 26 see also limitations on freedom of expression; limitations on freedom of movement; limitations on right of assembly limitations on freedom of expression 33 4, 539 40, 551 76 compliance with strict terms of 554 6 concerns over, in Article 5 context 133 Covenant-compatibility 556 7 disciplines applicable to 551 62 and domestic law 551 6, 576 7 excessive, in domestic law 134, 552, 577 grounds of 562 76 and margin of appreciation 16 necessity/proportionality 558 60 onus of proof 560 overprotectiveness 567 8 permitted under Article 20 582 3 ‘provided by law’ requirement 553 4 (tests for) justifications 540, 560 2, 629 see also defamation; hate speech limitations on freedom of movement 327, 337 45, 696 7 arbitrary 349 52 consistency with other Covenant provisions 29 30, 343 4, 353 ill-defined grounds for 338 9 national security/public order justification 340 2 necessity 339 40 on non-citizen residents 333 ‘provided by law’ requirement 337 9 public health/morals justification 342 and rights/freedoms of others 343 State failure to justify 339 limitations on right of assembly 596 606, 696 conformity with the law 596 7 content-based 601 and democratic society 597 600, 609 domestic laws inconsistent with Covenant 607 8 grounds of 601 6 necessity 600 1 potential abuse of grounds 597 8, 604 rights and freedoms of others 605 6, 609 strict observation 607 8 literacy as qualification for citizenship 742 as voting qualification 717 18 Lithuania, presidential/parliamentary politics 716 17 ‘living instrument’ doctrine 17 18 Committee’s application of 19 20 Committee’s resistance to 18 19, 20 2 logging, on indigenous land 815 16, 817 McCarthy, Svensson 114 McNaughton, Gillian 89 Madagascar, child labour in 225 Maldives, presidential elections 714 15

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886

Index

Mali discriminatory legislation 450 1 slavery in 224 5 Mandela Rules 184, 283, 293, 296, 298, 300, 303, 307, 309 manifestation of religion 514 25, 536, 770 2 conscientious objection viewed as 507 8 definition/scope 514 15 disciplines applicable to limitation 516 17 (see also necessity, principle of) grounds of limitation 501, 515 16, 517 25 and prohibited drugs 520, 740, 770, 804 5 and rights/freedoms of others 521 5 terms of limitation 515 17 margin of appreciation 14 16 disavowals of doctrine 16, 524, 808 9 marital status, discrimination on basis of 732 3, 741, 755 9 marriage arranged 651 customary/common law 635 6 dowries 652 financial implications of termination 323 forced 101, 227, 239, 640, 647 8, 651 2 levirate/sororate 652 restrictions on women’s choices 100, 450 right of 645 7, 658, 761; restrictions on 647, 651 same-sex 454 5, 472 3, 474, 641, 646 7, 759 62, 785 termination 636 transgender 455, 473 4 see also indigenous peoples; marital status; marriageable age; spouses marriageable age 647 9, 684 Committee concerns over 648 international instruments 649 Mauritania reservations on religious grounds 74 slavery in 221, 225 Mauritius, immigration legislation 98, 483, 757 8 media access to information 546 7 censorship 550, 574 5 independence/diversity 549 51, 577, 578 plurality 550 1 prejudicial treatment of accused 397 8 suppression on political grounds 567 8, 570 1 see also social media medical investigation, to determine age 668 see also rape medical personnel, financial situation 746 medical treatment children’s entitlement to 645 forced 213 14, 303, 480 1, 782 inadequacy/lack of 146, 300 3 reprisals for provision to terrorists 61 rules/guidelines on 303 membership fees, imposition of 615

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mental health 199 200 on death row 212 13 detention on grounds of 258 9 forced medication 214 and ill-treatment in detention 304, 675 and immigration detention 290 1, 302 and legal capacity 453 4 and mandatory detention 256 and naturalisation applications 742, 768 Mexico indigenous peoples 50 presidential elections 547 migrants/migration and children 639 40, 676 7, 683 4 detention of 358 9 (see also immigration detention) discrimination against 329 30, 782 3 DNA testing 479 exploitation in workforce 612 failure to recognise nationality 453 HIV testing 480 internal 331 2 (see also displacement, internal) racial profiling 753 4 military courts legal regulation/review 274 scope of criminal jurisdiction 85 trial of civilians before 389 90 military orders, refusal to carry out 438, 510 military personnel, violations committed by 85 military service alternatives to 511, 772 3 compulsory 507 11 forced labour in lieu of 236 see also conscientious objection ministers (of religion) gender restrictions 526 limits on numbers/freedoms 528 minorities 787 823 (arbitrary) detention 246 ‘belonging to’ 805 6 conflicts between different groups 812 14, 823 conflicts between group and individual members 812, 823 conflicts with State/private interests 814 17 , 823 cultural rights 800, 801 3, 806 defined 795 7 denial/restriction of rights 702, 704 educational rights/needs 801 3 ethnic 798 9; scope of definition 798 evidential issues 817 18 and freedom of association 611 gender discrimination among 103 history of legislation on 787 8 ill-treatment in detention 304, 753 infant mortality 664 learning of native language 802 linguistic 767, 799 804; provision of interpreter assistance 379 personal names 801

Index proposal to cover in Article 1 47 religious 501, 528 9, 534, 804 5 resolution of conflicts 812 17 restrictions on freedom of movement 328 9, 332 right of access to information 548 9 scale of discrimination against 822 States’ refusal to acknowledge 797, 819, 822 (under-)representation in public life 703 4, 743 see also indigenous peoples missionaries 504 6 State hostility towards 523 4 Mobutu Sese Soko, President 263 monarchy/ies, governmental structure/Covenantcompatibility 709 morals, as grounds for restrictions 342, 521, 574 6, 606, 626 based in dominant ideology 575 Mururoa Atoll see France, atomic tests Muslims see hijab; Islamic States; niqab; religious dress name(s), change of forcible 464 5, 472, 801 in mixed-race marriage 758 9 refusal to allow 464, 472, 473 4, 519 20 Namibia 40 ethnic minorities 818 linguistic policy 744 5, 767, 799 personal names 758 9 national security 777 8 authentic threats to 571 and expulsion of aliens 365 6, 468, 471 and limitations on freedom of expression 568 71 and limitations on freedom of movement 340 2 need for specific threat 623, 629 and right of assembly 597 8, 601 2 and right of association 623 nationality and children 686 8 discrimination on grounds of 775 8; careful characterisation of claims 775 6 distinctions in Covenant rights 775 distinguished from alien status 776 and gender discrimination 102 limits on choice of 687 and ‘one’s own country’ 346 7 right to 686 8 see also ‘own country’ natural disaster, as grounds for state of emergency 109, 115 16 natural resources 38, 49 50 discriminatory grants of access to 735 indigenous peoples’ rights in see indigenous peoples State exploitation 808 10, 814 17, 822 Nazi regime influence on UN law-making 581 2 restitution of property confiscated by 734 5 ne bis in idem, doctrine of 424 6 firearms offences 424 5

887

limits of scope 425 necessity, principle of and freedom of expression 558 60, 570 1, 583 4 and limitations on manifestation of religion 516 17 and limitations on right of assembly 600 1 negative association 495 6 Nepal immigration law 432 rape law 95 Netherlands commentary on self-determination 42 electoral regulations 720 euthanasia laws 166 social security system/legislation 732 3, 740 1, 748, 755 7 Neuman, Gerald L. 60, 77 8 New Caledonia, debate on self-determination 53 4, 698 9, 779 New Zealand handling of Maori rights 54, 798 9, 805, 808, 810 11, 813 14 sentencing policy 259 60 newspapers, minority-language, suppression of 800 niqab, (prohibitions on) wearing 519, 740 nobility, succession to titles of 98 non-derogable rights 119, 121 4, 157, 175 6, 220, 236 7, 243, 275, 282, 456, 515, 543 derogable rights treated as 123 reservations to 73 and states of emergency 122 4 see also specific Articles non-discrimination 4, 66 9, 87 105, 575, 697 8 Article 2 obligations 59 and children’s rights 663 4 in courts/tribunals 375 6 and derogation 119 21 evolution as principle/obligation 67 inconsistency in application 786 ‘reasonable and objective’ criteria 732 3 non-governmental organisations (NGOs) 707 8 (attempted) governmental suppression 623 4 denial of access to information 547 8 petitions to government 666 registration applications 624 non-refoulement, obligation of 187 Non-Self-Governing/Trust Territories 52 norms, requirements to count as laws 552 Northern Ireland, laws on sexuality 19 Norway, Constitution 530 Nowak, Manfred 63, 68, 112, 132 3, 135, 189, 219 20, 234, 343, 445 6, 456, 515 16, 563, 581 2, 595, 599, 614, 622, 631 2, 649 50, 689, 731, 798 nulla crimen sine lege, principle of 431 3 nulla poena sine lege certa, principle of 433 5, 444, 552 3

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888

Index

nulla poena sine praevia lege poenali, principle of 431 3 Nuremberg Tribunal, (illegality of) challenges to 583 4 oaths, requirement to take 703 O’Flaherty, Michael 8 Optional Protocol 1 8, 40 complaints procedure under 8 9 Optional Protocol on the Rights of the Child 652 organs, traffic in 230 1 others, rights/freedoms of see freedom of expression; limitations on freedom of movement; limitations on right of assembly; manifestation of religion ‘own country’ defined 346 9, 353 right to enter 345 52, 355, 360 Paksas, Rolandas 434 5 Palestine 40 pardon, right to seek 157 8 see also death penalty parental rights 418, 642 4 of access 654 5, 681 2 religious 530 4, 684 withdrawal of 643 4, 682 Parliament, media coverage 572 3 parole changes in regulations 439, 441 eligibility for 321 2 refusal of 439 revocation of 261 participation in public affairs direct vs. indirect 705 6 engagement in policy 707 8 grounds of restriction 704 5 manner of 706 7 means of exercising 706 public political life 709 right of 693 see also minorities parties (political) exclusion from 616 registration/suppression 559 60, 696, 700 1 and right of association 610 11 single-party systems 693 4 passports 334 6 confiscation 639, 683 refusal to issue 339, 341 refusal to obtain 511 12 restrictions on 335 6 peaceful assembly, right of 594 6 authorisation requirement 603 4 derogations from 608 designated areas 603 4 and freedom of expression 591, 608 9 fundamental status 591 2 increased importance 592 limitations on see limitations on right of assembly

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notification requirements 603, 604 scope of definition 595 pensions (alleged) discriminatory allocation 746 7 documentation required for application 511 12 of surviving same-sex partners 759 60 tax assessment 746 ‘peoples’, defined 46 8 personal information 458 9, 474 6 access to 459 disclosure 475 6, 495 6 holding of 475, 548 safeguards 496 personal laws 450 1 personal security, right to 241, 242 3, 245, 246 50 and children’s rights 672 4 independence of right to liberty 246 7 relationship with right to life 247 State failure to protect 248 State obligations 248 50 Peru, development projects 809 10, 811, 817 physical integrity, prevention of attacks on 3 4 pluralism 599 600 Pobjoy, Jason 751 police deaths of 400 1, 736 dismissal of senior officers 493, 726 forced entry by 488 9 ineligibility for civic office 720 restrictions on marriage 651 use of lethal force 142 3 pollution 51 2 polygamy 101 pornography 576 child 670 positive measures see special measures poverty, role in trafficking/forced labour 223, 225 pre-trial detention 234, 241 2, 267 73 arbitrary 272 3 (denial of) opportunity to prepare defence 401 pending police investigation 400 reasonable duration 269 71, 311 12, 674 vs. remand on bail 271 3 segregation from convicted prisoners 309 11 segregation of juveniles and adults 311 12 unreasonable prolongation 397, 404 pregnancy adolescent 93, 481, 665 6 (denial of) termination see abortion exemption from death penalty 158 foetal abnormality 92 4, 665 6, 783 mandatory testing 97, 479 see also abortion; rape presumption of innocence 173, 234, 270, 309 10, 396 9, 696 7 failure to apply 397 non-applicability in civil matters 399 undermining by media/public authorities 397 8 privacy, right of 4, 309, 471 82 defined 471

Index DNA testing 478 9 forced medical intervention 480 1 HIV testing 480 marital status/gender identity 472 4 personal information 474 6 pregnancy testing 479 sexual activity 472 surveillance 476 8 see also interference with privacy; private and family life private and family life, right to 19 20, 482 6 and gender discrimination 98 see also privacy, right of private schools, (threatened) closure 802 procedural fairness 705, 716 17 in disciplinary proceedings 723 4 procreation see reproductive rights property confiscated, restitution of 734 5, 776 7 discrimination on grounds of 778 proportionality principle 112, 153, 175 6 and freedom of expression 558, 574 and interference with private life 464 5 and mandatory detention 254 5 and State exploitation of resources 809 10 and voting rights 704 5, 715 16 proselytism 505 6, 522 4 permissible restrictions on 523 psychiatric examination 494 5 psychotropic drugs, (non-consensual) administration 213 14 public affairs see participation in public affairs public health and freedom of association 626 and freedom of expression 574 6 and freedom of movement 342 and manifestation of religion 520 and right of assembly 606 public hearing, right to 362, 387 8 restrictions on 33 4 public order breadth of definition 602 3 and freedom of expression 571 4 and human dignity 744 and limitations on freedom of movement 340 2 and manifestation of religion 519 20, 536 7 and right of assembly 597 8, 602 4 and right of association 623 5 public safety distinguished from public order 342, 571, 602 3 and freedom/manifestation of religion 501, 517 19, 536 7 and right of assembly/association 601 2, 623 public schools, religious education in 530 3 exemptions 530 1, 535 fair information requirement 533 gender/sexuality issues 532 3 parental choice 530 permissibility 530 symbols, wearing of 532

889

public service officials’ dismissal/forced retirement 699 700, 721 2, 774 5, 780 1 under-representation of women 703 4 see also access to public service public spaces, behaviour in 574 quarrying projects, on indigenous land 808 9, 815 Rabat Plan of Action 533, 584 5 racial discrimination 579 80, 701, 752 4 inadmissibility of claims 752 nationality-based discrimination distinguished from 775 6 place in ‘hierarchy’ 751 2 see also racial profiling racial profiling 753 4 radio, broadcasting licences 551 Ramcharan, Bernard 67 rape 95 6 in detention 186 marital 96, 102 3 marriage following 652 of minors 174, 201, 493 4, 663, 665 pregnancy resulting from 92, 93 4, 202, 481 2, 664 questioning/medical investigation following 98, 459, 493 4, 663, 665, 753 Rastafarianism 520, 804 5 reasonableness, principle of 279 80 see also trial, within a reasonable time recognition before the law, right of see legal personality; women regional human rights instruments 7, 12 22 differences from each other/ICCPR 14 22, 121 registration rules/procedures 624 religious groups 527 8, 626, 769 70 State abuses 527 8 reindeer, hunting/breeding 799 conflicts between groups 812 13 economic viability 815 16 impact of development projects 815 16 sustainability issues 806, 807 8, 812 13 religion/belief associations, formation of 518 corporative aspects 525 7 doctrine/precepts inconsistent with Covenant standards 526 7 freedom from coercion 504 5 and gender inequality 526 nature of belief systems 501 parental/guardianship rights 530 4, 535 provision for in detention 307 8 right not to disclose 509 10 right to change 504 right to maintain 504 5 as State ideology 523 State interference in 526 8 State obligations 526 7, 536 symbols, wearing of 532, 536

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890

Index

religion/belief (cont.) in the workplace 512 13 see also collective aspects of religion; conversion (religious); denominational schools; freedom of religion; Islamic States; manifestation of religion; public schools; religious dress religious discrimination 244, 579 80, 701 2, 768 74 appointment of officials 703 areas covered by 768, 773 4 place in ‘hierarchy’ 751 2 registration of religious orders 769 70 religious practice 770 2 school funding 749, 769 religious dress exceptions granted to 748 9 State enforcement 327, 342, 521 State restrictions/prohibitions 99, 327, 353, 506 7, 521 2, 524 5, 536 7, 740, 770 2 and workplace safety regulations 517 18, 739, 770 religious law, supremacy under domestic law 73 4 remedies 78 86 competent authorities 85 for denial of access to public service 725 6 duty to investigate 82 4 for enforced disappearance 198 enforcement 82, 85 6 judicial 78 9 prosecution of violators 79 protective 79 range of 81 2 and right to life 145 7 and states of emergency 117 18 for torture/ill-treatment 181 rendition 66 reproductive rights 4, 202 3, 649 50 reservations 427, 589, 655 6 (calls for) withdrawal 727 to non-derogable rights 73, 215, 535 to peremptory norms 277 8 on religious grounds 73 4 residence discriminatory laws on 102, 806 freedom to choose 330, 331 3 permits 353, 640, 644, 683, 757 8 requirement for electoral candidates 701, 702 status conferred on one spouse only 483 ‘respect’, obligation of 59, 64, 135 restrictions (on Covenant rights) see limitations retirement benefits 739 40 (compulsory) age of 738 retrospective legislation/prosecution see nulla poena sine praevia lege poenali review of conviction/sentence 418 22 ‘according to law’ 419 grounds of violation 419 21 State obligations 419 see also appeal(s); judicial review rights see human rights

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roads bilingual signs 545 construction on indigenous land 815 16 Rodley, Sir Nigel 509 Rodríguez-Rescia, Víctor Manuel 77 Roma people, forced evictions 489, 641 Roman law, civil rights in 2 Roosevelt, Franklin D. 37 rule of law 3, 110 in states of emergency 123, 128 Russia, sexual orientation/identity laws 763 Salvioli, Fabian Omar 76 7, 509 Sami people see under Sweden secession, declarations of 43 security forces see law enforcement officials; police self-determination 4, 694 5 Committee decisions/actions on 39 40 defined 48 9 definition of ‘peoples’ 46 8 divergent views on 37 8 external vs. internal 42 3 historical development 37 41 and indigenous peoples 38 9, 50 1 interaction with other rights 41 2, 45 6, 61 interpretive influence on other rights 28 legal status/content 44 6, 57 (limited) provisions in domestic law 56 and natural resources 49 50 as permanent right 46 relationship with self-government 44 ‘right’ vs. ‘principle’ 43 6 State obligations 52 3 as substantive right 61 self-executing nature of Covenant provisions challenges to 74 self-government, right of 44 self-incrimination, rights against 414 16 Senegal, marriage laws 101 sentencing see death penalty; imprisonment; lex mitior; life sentences serfdom 227 defined 226 servitude 221 3, 226 31, 319 domestic 228 forms of 226 sexual orientation arrest/imprisonment on grounds of 245 6, 764 ‘conversion therapy’ 766 deportation on grounds of 764 discrimination on grounds of 759 66, 785 domestic laws relating to 19 20, 151, 462 3, 472, 557 education concerning 532 3, 763 hate speech aimed at 765 6 ill-treatment on grounds of 186 7, 765 6 immigration prohibited on grounds of 328 media discussions/expressions of 574 6 public demonstrations 605 6 sexual violence 95 6, 204

Index in detention 309 see also rape Sikhs, religious observance see turban, wearing of Siracusa Principles 108, 110 11, 113, 556 slave trade, suppression of 219 slavery 219 21 continued existence 221, 224 5 history of legislation on 219 20 see also forced labour; serfdom social media 563 4, 578 social security 755 7 (alleged) age discrimination 739 40 gender discrimination 732 3, 741 reluctance to find discrimination relating to 755 society responsibility for children’s rights 688, 691 responsibility to protect the family 634 5, 657 solitary confinement 289 90, 507 distinguished from incommunicado detention 317 inappropriate use of 290 prolonged 290, 313 14 specific circumstances 289 90 South Africa, apartheid regime 40 Soviet Union, drafting proposals 597 8, 621 2, 634 Spain, treaties, social security system 747 special measures 742 4 Committee’s stress on 743 4 place in non-discrimination 743 4 see also affirmative action ‘specialty rule’ 363 4 spouses applications for citizenship 464 discrimination between see gender discrimination; marital status equality of rights/responsibilities 97, 100 1, 653 5, 656 ‘inheritance’ 652 requirement of consent 647 8, 650 2 Sri Lanka commentary on self-determination 46 failure to protect right to life 144 legislation in breach of Covenant rights 76 7 State ideology, domestic provisions 73 statelessness 358 children and 687 8 States Parties (to Covenant) accountability for agents’ actions overseas 65 6 accountability to 124 5 choice of governmental systems 693 4 implementation obligations 22 3 legal systems (see also domestic laws) obligation to investigate 82 4, 178 80, 248 50 obligation to prosecute 83 4, 145 7, 180 1 obligation to protect right to life 144 5 obligations towards detainees/prisoners 184 obligations within/outside own territory 64 6 religious obligations 526 7 statutes of limitation 84, 95 and torture/ill-treatment 183 sterilisation

891

authorisation required for 203 forced 98, 203, 245, 453, 481, 650, 782 street children 670 registration of births 686 strike(s) (perceived) threat to national security 569 (perceived) threat to public order 623 5 right to 618 19, 627 8 students see education; universities Sudan enforced dress codes 327, 342, 521 slavery in 225 suicide 165, 227 assisted 166 ‘suit at law’ 381 3 underlying legal entitlement 382 variations in definition 381 2 surveillance 476 8 insufficient authorisation/supervision 476 7 negative impact on human rights 478 requirements for authorisation 477 8 Sweden, indigenous peoples 41, 50, 51, 807 8 Tajik (language), ban on use of 800 teachers, (grounds of) dismissal 721 2, 726 Teheran, Proclamation of (1968) 5, 41 telephone conversations, interception/recording 461, 465, 478 terrorism courts set up to deal with 395 6 false charges of 714 15 freedom of movement restricted on grounds of 341 ill-treatment of suspects 186 new legislation on 437 promotion of ideology of 571 recruitment of children 672 surveillance on suspects 477 8 unclear definition of offences 434 Thailand, gender discrimination law 99 theft, false accusations of 246 tips, taxation of 738 Tomuschat, Christian 38, 131 torture amnesty/statute of limitations 183 burden of proof 181 2 Committee’s findings of 190 2 confessions obtained by 156, 181, 191, 192 3, 385, 414 16 criminalisation in domestic law 215 16 definition/examples 177, 189 90, 215 in detention 189 93, 247, 268 distinguished from other forms of ill-treatment 189 90 distress to victims’ families 198 ‘necessity’ defence 122 overlapping Covenant provisions on 172 4, 317 physical evidence of 187, 268 of political opponents 263 provisions in other international instruments 171 2

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892

Index

torture (cont.) recognition of symptoms 188 redress 181 relationship of Article 10(1) to 285 6 risk of, on extradition 148 9 (risk of) impunity 183 safeguards against 188 9, 216 standard of proof 192 3 totalitarianism, checks on 132 3 trade unions 616 19 armed forces/police 627 government bans/restrictions 617 perceived threat to national security 569 right not to join 617 18 right to join 616 17 and right to strike 618 19 see also strike(s) trafficking 221 3, 229 31, 239, 449 of children 661, 669 defined 221 2 and gender discrimination 96 high-risk groups 230 identification of victims 230 international legislation 221 2 investigation/redress 231 preventive strategies 229 30 State facilitation 222 3 Trans-Pacific Partnership 617 transgender individuals, legal issues relating to 455, 473 4, 646 7, 762 3 translation see interpretation/translation travel, restrictions on 331, 341 treaty obligations, HRC/OP1 influence on 10 trial of civilians, in military courts 389 90 custody pending see pre-trial detention failure to inform of 379 oral hearing, right to 407 presence of accused 362, 406 11; (circumstances permitting) waiver of 407 promptness, requirement of 267 9; defined 268 9 public accessibility 387 8 publication of findings 388 publication of time/venue 388 reasonable time 269 71, 386 7, 404 6 release pending 271 3 written judgment, obligation to produce 419 21 tribunals see courts/tribunals Trust Territories see Non-Self-Governing/Trust Territories turban, wearing of 517 18, 739, 748 9, 770 Turkey, law on conscientious objection 21 2 unfairness, onus of proof of 385 United Kingdom, use of territory for rendition flights 66 United States challenges to supremacy of Covenant 74

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early civil rights law 2 federal structure 76 non-consensual medical research 214 stance on territorial jurisdiction 64 5 Universal Declaration on Human Rights (UDHR) 5, 132 place in history of human rights legislation 1 2 universities exclusions from, on clothing grounds 506 7, 524 5, 772 harassment of LGBT students 765 staff, (alleged) discriminatory lack of promotion 750 student activism 569 70 unlawfulness, defined 461 Uruguay (attempted) derogations under Article 4 114, 115 Military Penal Code 431 redress for actions of dictatorship 722, 743 suppression of political groups 700, 715 16 use of force, excessive 141, 152 3, 176, 245, 602 Vaishnava community (Belarus) 518 Vandenhole, Wouter 751 victim status 62 discrimination and 748 9 establishment under OP1 9 Vienna Declaration and Programme of Action (1993) 5 6, 223 vilification, laws against 587 8 violations, definitions/examples 25 6 violence see domestic violence; hate crime; rape; women, violence against Volio, Fernando 631 voting 693 automated 711 12 compulsory 712 denial of rights 114, 308 discriminatory criteria 698 9, 717 18 police/armed services 720 processes 706 restrictions on grounds of mental ability 702 secret ballot 697 see also imprisonment war 166 8 excluded from Covenant articles 109, 166 7 propaganda for 167, 581 1 shift away from conventional methods 168 see also armed conflict war crimes 442 weapons of mass destruction 168 Weller, Marc 39 whistleblowers 492 witnesses compulsion 411 12 examination 412 13 limits on right to call 411 12 women conditions of detention 97, 305, 309

Index equality/recognition before the law 97 exclusion from religious leadership 526 property rights 101, 103, 323 residence/nationality rights 102 (under-)representation in public life 103, 703 4, 743

893

violence against 94 6, 147, 173 (see also domestic violence; sexual violence) see also gender discrimination work, (claimed) right to 133 4 workers, freedom of association 611 12 workplace, diversity/equality in 512 13, 525 6 World War Two, war crimes tribunals 442 worship, places of 529

https://doi.org/10.1017/9781108689458.034 Published online by Cambridge University Press

https://doi.org/10.1017/9781108689458.034 Published online by Cambridge University Press