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General comments—points of contention

The issuing of general comments has traditionally been the point at which states articulate opposition to treaty bodies as they often view the practice as going beyond the treaty into the realm of developing new law.33 General comments air the problems that surface during the review of periodic reports and, though they are not state-specific, the fact that reports and comments are publicly available enables the easy association of themes and, therefore, may be embarrassing to states with less than commendable rights records. This, in turn, causes offended states parties to argue the lack of legal basis for the comment.[1] [2] [3] [4] [5] Alston appropriately identified general comments as a ‘double-edged sword’ for states parties who launch attacks criticizing their legitimacy as it not only draws attention to their disagreement with the opinion and authority of the commenting committee, but also highlights the committee’s interpretation of the controversial right, thus establishing a benchmark for other states parties.35

Much of the opinion surrounding general comments has turned on the drafting and the process by which the comment is adopted;36 comments specifically derived from treaty documents have met far less criticism than those that are more creative with the execution of a treaty body’s remit. Examples of both can be found in the 2008 General Comment 3337 of the HRC, which deals with states parties’ obligations pursuant to the Optional Protocol8 to the ICCPR (OP-ICCPR). The HRC notes that under Article 2 of the OP-ICCPR that a state party is obliged to provide the author of a complaint with an effective remedy when the Committee determines that there has been a violation of the ICCPR. By grounding their statement in the treaty text, states parties are reminded of the obligations to which they have agreed in becoming a party to the Covenant. Paragraph 19, by contrast, refers to the HRC’s rules of procedure as a basis for implementing interim measures where it is thought that irreparable harm is likely to occur before the Committee is able to develop its final views on the complaint. Though linked back to its purpose under the OP-ICCPR and obviously an important tool, using the rules of procedure as a basis for obliging a state to comply with a Committee decision is far weaker than using the actual obligation to which the state has subscribed.

Summary

A mounting hazard for states, which is equally a windfall for human rights protection, is that treaty body jurisprudence often is viewed as a form of developing law and increasingly is being cited by domestic courts and regional human rights organs, thus incorporating this jurisprudence into the corpus of case law and moving it to a less ‘soft’ form of law, particularly in common law jurisdictions. This use of treaty body jurisprudence may be more appropriately referred to as ‘liquid’ law in the domestic context as it aids in filling the gaps in and among the hard law that governs rights assessment. In these situations, the legal opinion of a treaty body can be validated by the court and can lend legitimacy to existing and future treaty body opinions. It is to this phenomenon that this chapter will now turn.

  • [1] See e.g.: Observations by the Governments of the United States and the United Kingdom onHuman Rights Committee General Comment No. 24 (52) Relating to Reservations, UN Doc. A/50/40 (1995); reprinted in Human Rights Law Journal vol. 16 (1995).
  • [2] Alston (2001): 763 and 874 of reprinted version. 36 Keller and Grover (2012): 119.
  • [3] 37 HRC, General Comment No 33: The Obligations of States Parties under the Optional Protocol
  • [4] to the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/GC/33 (2008).
  • [5] Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 171,16 Dec. 1966. HRC General Comment 34 notes at para. 3: ‘The preamble to the Optional Protocolstates that its purpose is “further to achieve the purposes” of the Covenant by enabling the HumanRights Committee, established in part IV of the Covenant, “to receive and consider, as provided in thepresent Protocol, communications from individuals claiming to be victims of violations of any of therights set forth in the Covenant.” The Optional Protocol sets out a procedure, and imposes obligationson States parties to the Optional Protocol arising out of that procedure, in addition to their obligationsunder the Covenant.’
 
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