1 Introduction
The subject-matter of this chapter is Article 27 of the 1966 International Covenant on Civil and Political Rights (iccpr or the Covenant) and the evolution of its interpretation and application by the UN Human Rights Committee.1 The Committee was established under Article 28 of the Covenant and empowered by the Covenant’s Optional Protocol to receive and consider individual complaints of human rights violations under the Covenant by states parties. As the select cases will show, Article 27, which is the provision pre-eminently relevant for the protection of minority rights, is often relied on by members of minority groups, or applied by the Committee, in conjunction with other provisions of the Covenant, depending on the range of issues raised by the complaint. However, there seems to be a frequent reliance in these matters on especially Article 2(1), which obliges states parties to ensure to all individuals the rights in the Covenant without discrimination, and Article 26, which guarantees equal protection before the law. The reason is that their relevance is self-evident in matters involving discriminatory treatment in the context of Article 27.
The chapter is structured as follows. It commences with an explanation of the nature and scope of Article 27, matters the Committee clarified in a General Comment of 1994.2 This is followed by select decisions by the Human Rights Committee under the Optional Protocol involving Article 27 and other provisions of the Covenant to substantiate the Committee’s findings. The conclusion covers obstacles faced by individual claimants under the Optional Protocol and issues concerning the obligations of states parties to comply with the findings of the Committee.
2
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
This has the consequence that the bearers of the rights are the individuals belonging to minority groups as opposed to the groups themselves. The communal exercise of the rights under Article 27 is therefore distinct from and additional to all the other rights which all individuals are entitled to under the Covenant. For instance, the right of individuals belonging to a linguistic minority, to use their language among themselves, supplements the general right of all individuals, whether they belong to a minority or not, to freedom of expression which is guaranteed under Article 19 of the Covenant (Human Rights Committee 1994, para. 5.3). The same holds true for the right to freedom of thought, conscience and religion under Article 18(1) of the iccpr, as well as under the general non-discrimination provision in Article 2(1)(a).
The Human Rights Committee has also declared that the Article 27 rights must not be confused with the right to self-determination in Article 1 of the Covenant which applies to peoples as opposed to persons (Ibid., paras. 1, 2, 3.1). As such, the right to self-determination, unlike the Article 27 right, is not subject to the individual complaints procedure provided for in the Optional Protocol to the iccpr. The Committee has made this position clear already in one of its earlier communications in the matter of the Lubicon Lake Band v Canada (para. 32(1)).
(…) 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.
In the view of the Committee, 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 obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content 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.
Human Rights Committee 1989, para. 12
(…) imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political
Ibid., para. 7or 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.
3 Select Decisions of the Human Rights Committee under the First Optional Protocol
The cases that follow are dealt with chronologically. Applying a substantive issue criterion in arranging the cases would have been too problematic in view of the multiple and overlapping grounds the individual complaints invoked under the Covenant in petitioning the Human Rights Committee under the Optional Protocol. Moreover, in several of the cases the matter was decided by the Committee on grounds that differ from the grounds invoked by the complainant. Finally, only cases that were found to be admissible by the Committee feature here, which means, inter alia, that domestic remedies were exhausted by the complainants. In the conclusion the procedural requirements for the admissibility of cases are revisited.
3.1 Lovelace v Canada (1981)
The complainant in this matter, Sandra Lovelace, was born and registered as Maliseet Indian but lost her rights and status as an Indian following her marriage to a non-Indian. This occurred as a result of the operation of Canada’s Indian Act which determined that a woman who has married a person who is not an Indian will not be entitled to register as an Indian. Since the Act did not apply to Indian men, the complainant petitioned the Human Rights Committee, invoking Articles 2(1), 23(1) and (4), 26 and 27.
What caused the case to more specifically fall within the preserve of Article 27, was the question raised by the Committee, namely whether there were persistent effects of the loss of status occurring after the Covenant came into effect for Canada, namely the 19 August 1976. On this point the Human Rights Committee was informed that persons such as the complainant were denied the right to live on an Indian reserve which caused her to be separated from the Indian community and family members, her main cultural attachment following the dissolution of her marriage. On the strength of this evidence, the Committee found a violation by Canada, since the complainant, as a result of the loss of her Indian status by law, had been denied the right under Article
This is one of those rare cases where the state party responded positively to the findings of the Committee, seemingly motivated by a concern with the discriminatory consequences of the applicable law. On 19 November 1982, the UN Secretary-General informed Canada about the findings of the Committee and the latter’s request for information on measures taken by the government in respect of the Committee’s findings. In its response, the Canadian government informed the Committee about amendments to the Indian Act aimed at removing the loss of status provision and at restoring the status and rights of persons in the position of the complainant. Furthermore, in 1982, the Canadian Charter of Rights and Freedoms came into effect which provided for equal treatment of male and female persons on the basis of a general non-discrimination provision against which federal laws could be tested.3
3.2 Kitok v Sweden (1988)
The complainant, Ivan Kitok, belonged to a Sámi family who has been active in reindeer breeding for over a century. This entitled him to reindeer breeding as of right as well as rights to land and water on Sámi land. However, his engagement in another profession for some time caused him to lose his status as a reindeer breeder and his name was removed from the rolls of the Sámi community to which he belonged under the 1971 Reindeer Husbandry Act and according to which a Sámi community operated like a trade union with a closed shop rule. The purpose of this Act, the state party claimed, was to restrict the number of reindeer breeders for economic and ecological reasons and to ensure the well-being of the Sámi Indigenous people. Under Swedish law, refusals by a Sámi family community to re-admit a former member, as in this instance, could only be undone by government authorities on the basis of “special reasons”4 which, according to the state party, were absent in the case of the complainant.
It is not clear from the facts of the matter whether the loss by the complainant of his legal entitlements negatively affected his right to enjoy his culture in community with the other members of his Indigenous people group. Instead of raising this element as part of his claim, his complaint was restricted to the issue that there were special reasons on the basis of which the authorities could grant him the rights claimed despite the Sámi community’s refusal to do so.
3.3 Cadoret and Bihan v France (1991)
The complainants in this matter were denied the right to express themselves in Breton, their mother tongue, in criminal proceedings in a French court and claimed that they were denied a fair trial under the Covenant as a result. The state party argued that they were bilingual and were therefore not disadvantaged by the proceedings in French. If this were the only issue, the case could easily have been ignored for current purposes since it could have been disposed of under Articles 14 and 26 of the Covenant, on which the complainants relied in respect of the fair trial and discriminatory aspects of their treatment. However, they also invoked Article 27 of the Covenant as members of the Breton minority, which, they argue, like other minorities, speak languages other than French and do exist despite the fact that the state party does not recognise the existence of minorities.
This raised interesting questions about the scope and lawfulness in treaty law of the French reservation to Article 27. Unfortunately, this escaped the attention of the Committee who found that the facts of the complaint did not raise issues under Article 27. A similar fate has befallen the complaint in the case of Barzhig v France (1991).
3.4 Diergaardt Et al v Namibia (2000)
This communication was submitted to the Committee by members of the Rehoboth Baster Community who are descendants of the Indigenous Khoi and Afrikaans settlers who settled in Namibia in 1872. In the area they occupied they enjoyed self-government and managed their affairs according to their own culture, language and economy and sustained their own institutions, such as schools and community centers. This form of existence came to an end on 21 March 1990 when Namibia gained independence under a new Constitution which caused their independent existence to seize and their communal land to be expropriated by the Namibian government. This move threatened their traditional existence and brought economic hardship to the community, causing members of the community to become homeless and bankrupt.
(…) in the present case the Committee is unable to find that the authors can rely on article 27 to support their claim for exclusive use of the pastoral lands in question. This conclusion is based on the Committee’s 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 the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinctive culture. Furthermore, although the Rehoboth community bears distinctive properties as to the historical forms of self-government, the authors have failed to demonstrate how those factors would be based on their way of raising cattle.
Diergaardt et al. v Namibia, para. 10.6
The language issue was eventually decided in favour of the complainants, albeit on the basis of Article 26. Of specific relevance in this instance was the evidence submitted by the complainants to the effect that the state party has instructed civil servants not to reply to the author’s written or oral communications in the Afrikaans language, even if they are perfectly capable of doing so, an instruction that applied to written and telephonic communications. Since the state party failed to provide written statements on the merits of the complaint after the case was found admissible by the Committee, the Committee was entitled to rule on the basis of the evidence before it.
State party intransigence in proceedings under the Optional Protocol is not unique and casts doubt on the resoluteness with which a non-complying state party will respond to a request for particulars concerning an effective and enforceable remedy where a violation has been established. In the Diergaardt matter, the state party ignored two reminders by the Committee to submit evidence on the merits of the case and following a finding that a violation has occurred under Article 26, the state party was requested to provide within 90 days information about the measures taken to provide a remedy as required by Article 2(3) of the Covenant.
3.5 Waldman v Canada (1999)
This matter emanated from a private school funding system that had its origins in Canada’s 1867 Constitution which guaranteed denominational school rights in Section 93 and granted each province in Canada exclusive jurisdiction to enact education laws subject to the Constitution. At the time of the
The complainant in this matter, who experienced financial hardship in providing his children with a Jewish education at a private school, argued that the Ontario funding policy for Roman Catholic schools creates a religious distinction or preference which has the effect of impairing the enjoyment or exercise by all persons, on an equal footing, of their religious rights and freedoms. He also claimed that this religion-based discrimination is not based on reasonable and objective grounds any more since the historical rationale for it no longer exists and that it has been abandoned by the other Canadian provinces. As a result, it is the complainant’s case that he is a victim of a violation of Articles 26, 18(1) and (4) and 27, read in conjunction with Article 2(1).
A rather peculiar aspect of this matter was the argument by the state party that since the distinction favouring Roman Catholic schools was still enshrined in the Constitution of Canada, henceforth, the distinction was based on objective and reasonable criteria (Waldman v Canada, para. 10.3). This approach, to justify a discriminatory arrangement on the basis of its source as opposed to its substantive character or consequences, was easily rejected by the Committee as wrong. Of relevance in the instant case was that there was no substantiating evidence showing that members of the Roman Catholic community were still in a disadvantaged position compared with members of the Jewish community who wished to provide a religious education for their children in religious schools (Ibid., para. 10.4). Further countering the state party’s argument that it is not unreasonable to differentiate in the allocation of public funds between private and public schools, the Committee noted that under the funding model only Roman Catholic schools were incorporated into the public school system. This meant, that in the case of the complainant, the public funded school system did not provide for his religious denomination (public schools were not allowed to engage in religious indoctrination), while members of the
It is this unequal treatment aspect which led the Committee to find a violation by the state party under Article 26 of the Covenant. In view of this conclusion the Committee made no finding in respect of the other provisions of the Covenant the complainant relied on, including Article 27, because no additional issues arose that would justify a consideration of these provisions (Ibid., para. 10.7).
3.6 Äärelä and Näkkäläjärvi v Finland (2001)
The complainants, who were reindeer breeders of Sámi origin and, hence, members of an Indigenous people, claimed, under Article 27 of the Covenant, that government logging and road construction activities on herding lands amounted to a denial of their rights to enjoy their culture in community with other Sámi, for which the survival of reindeer herding is essential. The deciding issue before the Committee was whether the interference of the logging and road construction complained of was so substantial that it amounted to a failure by the state party to properly protect the Article 27 rights of the complainants. This substantial interference threshold (see also Länsman et al. v Finland, 2005), which the Committee usually applies in instances of this nature, could only be arrived at on the basis of information relating to the factual importance of the affected area for reindeer husbandry, the long-term impacts on the sustainability of the complainants’ breeding enterprise, and the consequences for them under Article 27 of the Covenant. Apart from the fact that the domestic courts held different views on these aspects, the Committee was not apprised of sufficient information to make a finding as to the substantial interference threshold. It was therefore unable to conclude whether there was a violation of the complainants’ rights under Article 27.
3.7 Howard v Canada (2005)
The complainant in this matter belonged to a First Nations community. As a result of treaties concluded between the Crown and the First Nations in 1923, the First Nations’ fishing rights, they previously held, were extinguished. In 1985, the complainant caught fish from a river just outside his First Nations’ reserve and was convicted in an Ontario court for unlawfully fishing out of season. In an attempt to bring greater legal certainty to the fishing rights of Indigenous peoples the Ontario government committed itself in 1990 to negotiate agreements with Indigenous peoples on the issue of hunting, fishing, gathering and trapping. One such agreement was signed with the First Nations, allowing for the exercise of certain hunting and fishing rights they lost as a result of the
Following these events, the complainant approached the Committee, arguing that the state party failed to take effective positive measures under Article 27 of the Covenant to ensure the exercise of the complainant’s aboriginal fishing rights individually and in community with each other and that this failure threatens the First Nations’ cultural, spiritual and social survival. Before the Committee, the state party contended that the complainant has the right to fish throughout the year on and adjacent to his Nation’s reserve and also outside those areas during the fishing season subject only to a valid fishing license. In response, the complainant argued that there was not enough fish on and adjacent to the reserves to render the right meaningful and that the other areas fell outside his Nation’s traditional fishing grounds. In addition, he argued that a licence constituted a privilege to fish, while he claims to fish as of right.
The licence issue was easily disposed of by the Committee on the basis that states parties are entitled to regulate activities affecting Indigenous peoples provided that the regulatory measures do not amount to a de facto denial of the rights in question, which was not the case here. The remaining issue, namely whether there was enough fish to allow the complainant to exercise this part of his culture meaningfully, caused the success of the complaint, as is often the case in matters of this kind, to depend on questions of fact. In this respect, not only were the questions of fact not placed before the domestic courts, who are, as a matter of course, in the best position to evaluate facts and evidence, but before the Committee the parties were also in disagreement as regards the availability of fish and the extent of the traditional fishing grounds. This caused the Committee not to be in a position to draw independent conclusions on the factual circumstances on which the complainant relied with the result that the Committee was not in a position to make a finding on whether there was a violation under Article 27 (Howard v Canada, paras. 12.8–13).
3.8 Mavlonov and Sa’di v Uzbekistan (2009)
The main complainant was the editor of a newspaper Oina which was published almost exclusively in the Tajik language, a minority language in the Samarkand region of the state party. The newspaper was distributed to numerous schools that use the Tajik language of instruction and published educational and other materials for Tajik-language students and young persons to assist them in their intellectual and cultural development. As a result of the opting out of one of the newspaper’s founders, Oina had to apply for re-registration according to
Before the Committee, the complainant claims to be a victim, inter alia, of a violation of his rights under Article 27 of the Covenant since he was prevented from enjoying his own culture and language in community with other members of the Tajik minority in Uzbekistan. In response, the state party has not provided specific observations to counter the claims by the complainant, but has merely stated that the decisions by the domestic courts were substantiated and in accordance with the law. In considering the complainant’s claims in respect of Article 27, the Committee made specific reference to its “General Comment no. 23”6 on the essence and scope of this provision dealt with earlier in this chapter and reiterated the obligation states parties have under Article 27, namely to take positive measures towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities in question (Mavlonov and Sa’di v Uzbekistan, para. 8.6).
The Committee also reiterated that the test whether a violation has taken place under Article 27 is whether the restriction imposed by the state party has an impact, so substantial that it effectively denies the complainant the enjoyment of his rights under Article 27. In the instant case, the Committee took into account that in the context of Article 27 education in a minority language is a fundamental part of a minority culture and the uncontested role played by Oina in this regard. It was also of the view that the use of a minority language press in raising issues of significance and importance to the Tajik community formed an essential element of the Tajik minority culture. Since the restriction imposed by the state party had the substantial impact referred to above on the enjoyment of the rights in question, the Committee concluded that a violation under Article 27 has taken place (Ibid., para. 8.7).
3.9 Poma Poma v Peru (2009)
The complainant in this matter owned an alpaca farm in the Tacna region of Peru where she and her children raised alpacas, llamas and other animals as
In the 1950s and 1980s water diversion projects authorised by the state party reduced water supply to the pastures and to areas from where water was drawn for human and animal consumption. This caused the gradual drying out of wetlands on which the complainant and other families depended for grazing and underground springs. The situation was exacerbated when in the 1990s the government approved the drilling of wells in the area which accelerated the drainage and degradation of the pastures, causing thousands of animals to perish, depriving the community of their only means of survival.
In her complaint to the Committee, the complainant alleged violations under Article 1 of the Covenant (right to self-determination) which is not susceptible to the procedure under the Optional Protocol, as indicated earlier on, and under Article 17 of the Covenant (right to privacy and a family). Acting ex mero motu, the Committee decided to deal with the complaint under Article 27 since the facts presented by the complainant raised issues germane to that provision. To further illustrate the relevance of Article 27, the Committee invoked its “General Comment no. 23”7 to stress the point that the right to enjoy a particular culture under Article 27 may consist of a way of life that is closely connected with a territory and the use of its resources, which, in particular, may apply in the case of members of an Indigenous community constituting a minority. Where this is the case, the enjoyment of the rights associated with the community’s traditional activities my require positive measures to be taken by the state party to ensure the effective participation of members of the community in decisions affecting them (Poma Poma v Peru, para. 7.2).
It was not in dispute that the complainant was a member of an Indigenous people and that the raising of llamas constituted an essential element of her community’s culture as a form of subsistence. This entitled the complainant to protection under Article 27 (Ibid., para. 7.3). Where a state party takes steps in the interest of economic development, as it is entitled to do, it cannot be done in a way that will undermine the Article 27 rights but must be commensurate with its obligations under Article 27. In making this point the Committee was left with the question whether the state party’s water diversion schemes were such that they had a ”substantive negative impact” on the complainant’s enjoyment of her rights under Article 27. Answering this in the affirmative, the
In the Committee's view, 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. In addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members.
Ibid., para. 7.6
3.10 Sanila-Aikio v Finland (2018)
The importance of this matter relates to the fact that it involves the political rights of the Sámi Indigenous people which became the subject-matter of two other proceedings before international treaty bodies as will become clear below.
In this matter, Tiina Sanila-Aikio, complained before the Committee on her own behalf, on behalf of the Sámi people and in her capacity as president of the Sámi parliament of Finland. The complaint arose from a 2011 decision by the Supreme Administrative Court, departing from a consensual interpretation of Section 3 of the Act on the Sámi Parliament of 1995, which defines a Sámi for purposes of being allowed to vote in the elections for parliament. The decision resulted in the right to vote for 93 persons who had been found ineligible by the Sámi parliament. It is the complainant’s case that this decision has undermined the voice of the Sámi people in the parliament and the
On 28 March 2017, the Committee found the complaint admissible insofar as it raises issues under Article 25, 26 and 27. Interesting though, is the Committee’s explanation with regard to Article 1 (the right to self-determination), which as indicated earlier, and again reiterated in this instance, is inadmissible under the Optional Protocol. However, the Committee considered Article 1 nevertheless relevant in determining whether rights in parts ii and iii of the Covenant (like Articles 25, 26 and 27) have been violated. Since the Committee dealt with this matter only towards the end of its argumentation, it may be sensible to first explain what informed the Committee’s reasoning in finding a violation by the state party of Article 25, read alone and in conjunction with Article 27, and how Article 1 fits into the scheme.
Since Article 25 of the Covenant guarantees the rights of citizens to take part in public affairs, the right to vote and to be elected and the right to have access to public service, the Committee invoked its “General Comment no. 25”8 where it was made clear that state parties are obliged by the Covenant to take legislative and other measures to ensure that citizens have an effective opportunity to enjoy the rights protected by Article 25. The “General Comment no. 25” also requires that any interference with an Article 25 right must be justifiable on reasonable and objective criteria (Human Rights Committee. 1996, para. 4). The Committee further underscored this requirement with reference to its decisions in the Lovelace and Kitok cases (Sanila-Aikio v Finland, para. 6.5).
The “General Comment no. 25” also raised the Article 1 self-determination issue in the context of Article 25 by stating that the rights under Article 25 are related to, but distinct from, the right of peoples to self-determination under
Also important for the Committee’s consideration of the Sanila-Aikio matter was the United Nations Declaration on the Rights of Indigenous Peoples (undrip), a non-binding instrument adopted in 2007 by the UN General Assembly9 and the most widely supported framework on the rights of Indigenous peoples. Of specific relevance in the Sanila-Aikio matter is Article 33 of the undrip which recognises the right of Indigenous peoples to determine their own identity or membership in accordance with their customs and traditions and to select the membership of their institutions in accordance with their own procedures. This self-identification rule was also part of Article 3 of the Act on the Sámi Parliament of 1995 which, in addition, required certain objective criteria to be satisfied in respect of language, family origin, and parental link to a former Sámi delegate. It was not in dispute that these objective criteria were ignored by the Supreme Administrative Court in the majority of cases (Sanila-Aikio para. 6.7).
Ibid., para. 6.9
Moreover, although the rights protected under article 27 are individual rights, they depend in turn on the ability of the group to maintain its culture, language or religion. The Committee further recalls that the preamble of the United Nations Declaration on the Rights of Indigenous Peoples establishes that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples. In view thereof, the Committee considers that in the context of indigenous peoples’ rights, articles 25 and 27 of the Covenant have a collective dimension and some of those rights can only be enjoyed in community with others. The rights to political participation of an indigenous community in the context of internal self-determination under article 27, read in the light of article 1, of the Covenant, and in pursuance of the preservation of the rights of members of the community to enjoy their own culture or to use their own language in community with the other members of their group, are not enjoyed merely individually. Consequently, when considering the individual harm in the context of this communication, the Committee must take into account the collective dimension of such harm. With respect to dilution of the vote of an indigenous community in the context of internal self-determination, harm directly imposed upon the collective may injure each and every individual member of the community. The author is a member of an indigenous community and all of her claims are related to her rights as such.
On the basis of this reading of the relevant Covenant provisions, the Committee turned to the meaning and role of the Sámi parliament for both the Sámi community and the state party. For the Sámi community the Sámi parliament constituted an important instrument for the Sámi, individually as well as collectively, to enjoy and exercise the rights under Articles 25 and 27. For the state party the Sámi parliament and its effective functioning in adequately representing the views of the Sámi were essential for reaching its implementation obligations under the two provisions (Ibid., para. 6.10). Consequently, by infringing on the capacity of the Sámi people to exercise their right to internal self-determination through the Sámi parliament, the Supreme Administrative Court has violated the complainant’s rights under Article 25, read alone and in conjunction with Article 27 (Ibid., para. 6.11).
The Sanila-Aikio matter was decided on 1 November 2018. In virtual contemporaneous proceedings, based on the same set of facts but involving different complainants, the Committee, on the 2 November 2018, reached the same
4 Conclusions
The case law of the Human Rights Committee, coupled with its General Comments in respect of Article 27 and related provisions of the Covenant have produced a body of jurisprudence which provides potential claimants and state parties with a fair amount of clarity as regards the individual entitlements under Article 27 and the obligations state parties assume under that provision. However, for an individual complainant to find a remedy under the Optional Protocol for the violation of any of the Covenant rights is a slow and laborious process.
As a general observation, it must be noted that the individual complaints procedure under the Covenant’s first Optional Protocol is intended as a safety net in cases where the victim of a rights violation was deprived of a suitable remedy in domestic law. Several obstacles, procedural and substantive, must be anticipated when a complainant decides to pursue this avenue in cases where the state party under the Covenant is also a state party to the Optional Protocol and temporal jurisdiction is established. First there is the exhaustion of domestic remedies which is a procedural requirement under Article 2 of the Optional Protocol. This may in itself become a bone of contention, since it is usually the state party’s argument that the complainant has failed to exhaust all available domestic remedies. A complaint may also be rendered inadmissible under Articles 3 and 5 of the Optional Protocol if it is anonymous, constitutes and abuse of the proceedings, fails to substantiate a violation of the complainant’s right/s, is being dealt with under another procedure of international investigation; or if domestic remedies were not exhausted. Depending on which of these procedural requirements the state party decides to concede or dispute, and whether additional information is required from the parties and timeously provided by them, or not, considerable delays may occur even before the merits are considered following a finding of admissibility of the complaint. Preparing a case for consideration on the merits may cause further delays, depending on the factual and legal complexities involved with the result that it may take between two to five years from the initial submission of a complaint to the eventual adoption of views by the Committee on the merits.
Once a violation has been found by the Committee the state party is requested by the Committee to provide an effective remedy. The obligation to provide an effective remedy derives from the state party’s Covenant obligation
The fact that the Committee is not capacitated to force a state party to comply with its findings and that some state parties failed to accept and comply with the Committee’s findings, even though they have participated in the proceedings, should not obscure the fact that a state party against whom a finding has been made are bound to give effect to the finding. As the Committee has pointed out in its “General Comment no. 33”,11 this obligation derives from a number of factors in addition to Article 2(3)(a) of the Covenant mentioned above. Firstly, although the Committee is strictly speaking not a judicial body, its findings under the Optional Protocol exhibit some of the main characteristics of a judicial decision, since they are arrived at in a judicial spirit by individual members acting with impartiality and independence when arriving at a considered interpretation of the Covenant provisions and concluding with decisions that have a determinative character (Human Rights Committee 2008, para. 11). Secondly, the Committee is a creation of a binding multilateral treaty, the Covenant, and under the Optional Protocol, which is also legally binding for its states parties, it is charged with receiving and considering individual communications alleging violations by state parties under the Covenant (Ibid., para. 13). Thirdly, in terms of international treaty law, and more specifically Article 26 of the Vienna Convention on the Law of Treaties (1969), states parties are under an obligation to perform their treaty obligations in good faith. Consequently, they are under an obligation to cooperate with the Committee in good faith (Ibid., para. 15). To these one could add Article 27 of the Vienna Convention on the Law of Treaties. This provision prohibits a state party from invoking provisions of its domestic law as justification for its failure to comply with a treaty obligation. In instances where the domestic law is at variance with the treaty obligation, the former must be amended to facilitate compliance with the treaty obligation.
Sections 15(1) and 28 of the Constitution Act, of 1982.
Section 12(2) of the 1971 Reindeer Husbandry Act.
The undrip Resolution was adopted by the UN General Assembly on 13 September 2017, UN Doc A/Res/61/295.
Human Rights Committee. 1984. “General Comment no. 12: Article 1 (Right to self-determination) The Right to Self-determination of Peoples”, 13 March 1984.
Human Rights Committee. 1989. “General Comment no. 18: Non-discrimination”, 10 November 1989.
Human Rights Committee. 1994. “General Comment no. 23: Article 27 (Rights of Minorities)”, 8 April 1994.
Human Rights Committee. 1996. “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.
Human Rights Committee. 2008. “General Comment no. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights”, 5 November 2008.
Schultz, Jenny, Joseph, Sarah andMelissa Castan. 2013. The International Covenant on Civil and Political Rights: Cases, Materials and Commentary. Oxford: Oxford University Press.
Nowak, Manfred. 2005. UN Covenant on Civil and Political Rights. CCPR Commentary. Kehl am Rhein: Engel Publishers.
Case Law
Please refer to the list on pages viii–xvi.