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General comments—evolving practice

The practice of issuing general comments began in 1981 with the Human Rights Committee pursuant to ICCPR Article 40.[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] Eight of the nine core UN human rights treaty bodies have issued a combined 153 general comments on various aspects of their respective treaties. 15 These include the CERD Committeew (thirty-five comments), the Human Rights Committee (HRC)17 (thirty-five comments), the ESCR Committee!® (twenty-three comments), the CEDAW Committee!® (thirty- four comments), the CAT Committee2° (three comments), the CRC Committee2i (nineteen comments, including one draft comment published June 2015), the Committee on Migrant Workers22 (two comments), and the newest treaty body to commence operation, the Committee on the Rights of Persons with Disabilities (two comments). Most recently, the ESRC Committee adopted General Comment 23 on the right to justice and favourable conditions of work in March 2016.23 The debate amongst observers of the UN human rights regime assigns disparate levels of importance to these comments as a form of soft law. Some view them as authoritative interpretations of the treaties while others view them as unsystematic and unfounded statements deserving no recognition in the lawTh Though there is far from consensus on the determination of exactly what legal weight general comments carry, it is evident that they have influenced the protection of human rights and enriched the human rights dialogue.

  • [1] For a more complete overview of the history of general comments see: H. Keller and L. Grover,‘General Comments ofthe Human Rights Committee and their Legitimacy’, in UN Human Rights TreatyBodies: Law and Legitimacy, ed. H. Keller and G. Ulfstein (Cambridge: Cambridge University Press,2012): 116—98 at 121—7; P. Alston, ‘The Historical Origins of the Concept of “General Comments”in Human Rights Law’, in The International Legal System in Quest of Equity and Universality: LiberAmicorum Georges Abi-saab, ed. L. Boisson de Chazournes and V. Gowlland-Debbas (2001): 763,reprinted in H. J. Steiner, P. Alston, and R Goodman, International Human Rights in Context: Law,Politics, Morals (3rd edn) (Oxford: Oxford University Press, 2008): 873.
  • [2] As of 3 Jan. 2016.
  • [3] The treaty body established by Art. 8 of the Convention on the Elimination of all forms of RacialDiscrimination (CERD), 669 UNTS 195, 21 Dec. 1965.
  • [4] 17 The treaty body established by Art. 28, ICCPR.
  • [5] 1® The treaty body overseeing the International Covenant on Economic, Social and Cultural Rights(ICESCR), 993 UNTS 3, 26 Dec. 1966, was established by ECOSOC Resolution 1985/17, 28 May1985. Prior to the resolution, reports were submitted directly to the UN Economic and Social Councilpursuant to Art. 16 of the Covenant.
  • [6] 1® The treaty body established by Art. 18 of CEDAW
  • [7] 2° The treaty body established by Art. 17 of the Convention on the Prevention of Torture and OtherCruel, Inhuman or Degrading Treatment or Punishment (CAT), 465 UNTS 85, 10 Dec. 1984.
  • [8] The treaty body established by Art. 43 of the Convention on the Rights of the Child (CRC), 1577 UNTS 3, 20 Nov. 1989.
  • [9] The treaty body established by Art. 72 of the Convention for the Protection of the Rights ofMigrant Workers and Their Families (CRMW), 2220 UNTS 3, 18 Dec. 1990.
  • [10] 23 ESRC Committee, General Comment No. 23 on the Right to Just and Favourable Conditionsof Work (Art. 7), UN Doc. E/C.12/GC/23 (2016). General Comment information updated 28June 2016.
  • [11] Keller and Grover (2012): 118—19.
 
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