I ESTABLISHED HUMAN RIGHTS REGIMES
Interpreting International Human Rights Standards. Treaty Body General Comments as a Chisel or a Hammer
Kasey L. McCall-Smith *
Human rights treaties are standard-setting yet these standards are open-textured and evolutionary; therefore interpretative tools must be engaged in order to flesh out the true extent of states’ obligations, particularly as these obligations evolve to reflect rights in the modern world. The human rights treaty bodies embedded in each of the UN human rights treaties comprise experts in the field specific to each treaty and represent a unique feature of the core treaties in that they are the primary interpreters of the treaties at the international level. Human rights treaty bodies have contributed a great deal to the development of measurable international human rights obligations. Through the functions confirmed by their respective treaties, treaty bodies have a range of options by way of which they can inform states parties about the evolving nature of human rights protection. From issuing general comments, to appraising states’ periodic reports, or reaching final views on individual communications—what will be referred to collectively throughout this chapter as ‘jurisprudence’—there is no lack of soft law to be found. Though many states often ignore treaty body jurisprudence, there is unmistakable evidence that it is creeping into the domestic realm by virtue of increasing reference to this jurisprudence in domestic court opinions and policy debates. The persisting question is whether the use of treaty body jurisprudence at the domestic level refines or distorts the development of universal human rights standards.
Human rights treaty bodies are invested by their respective treaties with the competence to assess the implementation of treaty obligations. As will be examined below, the various methods by which treaty bodies may engage in this assessment are outlined in each treaty and the competences of each supervisory mechanism
* The author is indebted to Professor Alan Boyle and Dr James Harrison for comments on previous versions and Sean Molloy for research assistance.
Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.
varies, albeit only slightly. The jurisprudence produced through the exercise of these competences is a form of soft law that can respond to the legal and social environment more flexibly and guide interpretation and state practice in the international sphere. In other words, the soft law produced by the treaty bodies is norm-filling.  However, it is when these soft instruments are introduced into domestic legal systems that they are truly tested, especially when the instruments are used in a peculiar manner.2 The impact of these references sustains the concept of soft law put forward by this volume—that treaty body instruments contain rules which are in the process of incubation. The judicial practices surveyed herein suggest that these incubating rules—or more accurately, interpretations of the minimalist binding rules found in the treaties themselves—are gaining traction. It also supports the oft-repeated maxims that human rights treaties do not exist in a vacuum  and are ‘living instruments’5 which makes evolutionary interpretation necessary.
This chapter explores the introduction of treaty body jurisprudence into domestic legal systems. Specifically, it considers the use of general comments. The contribution begins with a brief introduction of the treaty bodies as it is the nature of these bodies that warrants consideration of their jurisprudence as a legitimate interpretative tool. It will then deliver an overview of references to treaty body general comments in the case law across a selection of jurisdictions, including the UK and South Africa, as well as Europe as a supranational jurisdiction. Finally, it will analyse the impact that these domestic engagements with treaty body jurisprudence have on the interpretation of international human rights standards. It will consider whether the outcome of a court case that has relied upon general comments contributes to or detracts from the strength of the treaty body outputs. It is posited that in instances where rights are progressively recognized for protection, general comments serve as a chisel to aid in refining rights. In instances where the judiciary disregards or distorts treaty body guidance, it is suggested that the general comments act more as a hammer that weakens a particular right. Thus it is extremely important that treaty bodies take special care when drafting their opinions, comments, and reports; therefore some attention will be given to the issue of treaty body drafting.
As an interpretative tool, treaty body general comments enrich the understanding of human rights obligations, and it is clear that state organs are increasingly willing to entertain these views in order to better define human rights at the domestic level. As an increasingly authoritative form of soft law, general comments are shaping the way in which domestic courts interpret international human rights standards. What is not clear is whether the unwieldy nature of domestic interpretations bolsters or undermines these standards.
-  See the Introduction to this volume.
-  The same observation can be said of domestic court application of treaty interpretation rulesgenerally. See e.g.: H. P. Aust, A. Rodiles, and P. Staubach, ‘Unity or Uniformity? Domestic Courts andTreaty Interpretation’, Leiden Journal of International Law vol. 27 (2014): 75—112 at 84.
-  See the chapter by John Cerone in this volume.
-  See e.g.: Hassan v. United Kingdom, 29750/09  ECHR 1162 (16 Sept. 2014), para. 77;Cyprus v Turkey, 25781/94  ECHR 478 (12 May 2014), para. 23; Margus v. Croatia, 4455/10  ECHR 523 (27 May 2014), para. 129; Neulinger and Shuruk v. Switzerland  ECHR1053 (6 July 2010), para. 131; F. Hampson, Working paper submitted pursuant to Sub-Commissiondecision 1998/113, UN Doc. E/CN.4/Sub.2/1999/28 (1999), para. 13.
-  Jaloud v. The Netherlands, 47708/08  ECHR 1292 (20 Nov. 2014), para. 121; O'Keeffev. Ireland, 35810/09  ECHR 96 (28 Jan. 2014), concurring opinion of Judge Ziemele, para.11; X and others v. Austria, 19010/07  ECHR 148 (19 Feb. 2013), para. 139; Loizidou v. Turkey(Preliminary Objections)  20 EHRR 99, para. 71; A. Boyle and C. Chinkin, The Making ofInternational Law (Oxford: Oxford University Press, 2007): 155; D. Kinley and R. Chambers, ‘TheUN Human Rights Norms for Corporations: The Private Implications of Public International Law’,Human Rights Law Review vol. 6 (2006): 447.
-  Throughout this chapter the term ‘general comments’ will be used collectively in reference toboth general comments and general recommendations as in practice both terms refer to the sameform of treaty body jurisprudential product. See e.g.: International Covenant on Civil and PoliticalRights (ICCPR), 999 UNTS 171, 16 Dec. 1966, Art. 40(4): ‘The Committee shall study the reportssubmitted by the States Parties to the present Covenant. It shall transmit its reports, and such generalcomments as it may consider appropriate, to States Parties’ (emphasis added). The Convention on theElimination ofAll forms of Discrimination against Women (CEDAW) 1249 UNTS 13, 18 Dec. 1979,Art. 21(1): ‘The Committee shall ... report annually to the General Assembly of the United Nationson its activities and may make suggestions and general recommendations based on the examination ofreports and information received from the States Parties’ (emphasis added). Similar statements can befound in each of the core UN human rights treaties discussed in this chapter.