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Soft Law Delimiting Rights

The Human Rights Committee’s (HRC) decisions on individual cases offer detailed considerations on treaty interpretation. In contrast to other soft law documents such as General Comments, the discussions undertaken when examining individual communications are very concrete and specify the contents of a given right as well as delimiting its extent. The sharp and precise wording found in decisions on individual cases cannot be compared to the much vaguer language used by the HRC in its General Comments.

In considering participation rights, we are dealing with Article 25 of the International Covenant on Civil and Political Rights (ICCPR). This article states that citizens have the right and opportunity to ‘take part in the conduct of public affairs directly or through freely chosen representatives’. The article is seen as the core political participation right relating to the exercise of legislative, executive, and administrative powers. In its General Comment No. 25 (GC 25), the HRC expounded its general interpretation of Article 25.

Article 25 distinguishes between taking part in public affairs ‘directly’ and ‘indirectly’. The two forms are defined in GC 25, so that indirect participation refers to citizens’ free election of representatives. Several meanings are attributed to direct participation: one is the right to run for office and participate directly as an elected representative in political fora; another is casting votes in referendums or popular assemblies where decisions are taken on the spot by a ballot; and a third takes place ‘in bodies established to represent citizens in consultation with the government’^4

The notion of direct participation has given rise to confusion, as evident in decisions of the HRC. In several instances, it has been claimed that direct participation in public affairs under the meaning ofArticle 25 entails a right for citizens or groups of citizens to be heard or consulted in decision-making processes. This, however, has been rejected by the HRC. In Marshall v. Canada, known as the Mikmak case, the Committee explained in categorical terms that:

It must be beyond dispute 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____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).25 [1] [2]

It is remarkable that the HRC in its GC 25 refrained from outlining the limits of the right to direct participation, which it had stated so strongly ten years earlier in the Mikmak case. It might be assumed this was because the HRC had softened its position on the question over the years, but a more recent decision shows this not to be the case. In 2005, the HRC rejected an argument that under Article 25(a) a state party must provide an opportunity for interest or activist groups to be included in government decision processes. The Committee explained that the appropriate way to exert influence for such purposes is to participate in public debate, engage in dialogue with political representatives, and organize meetings and similar engagements.26

These examples relating to ICCPR Article 25 demonstrate that the soft law instruments of the HRC play different roles. As with other General Comments, GC 25 includes positive and broad language, which rarely excludes any specific understanding of the Covenant wording, even when certain interpretations have previously been ruled out through decisions in specific cases, as we saw with the meaning of ‘direct participation’^ This format developed for the General Comments conforms well with the external demand for a broader approach to participation, while the more limited and analytical approach in the case decisions has a stronger legal quality—and, consequently, cannot necessarily deliver the results expected from an NGO perspective.

  • [1] ICCPR GC No. 25, para. 6.
  • [2] Comm. No. 205/1986 Marshall et al. v. Canada, para. 5.5. This decision was contested by B. Graefrath in ‘Mikmaq-Entscheidung des Menchenrechtsausschusses und deutscheVerfassungsdiskussion’, Neue Justitz vol. 4 (1992). Graefrath concludes that the HRC’s position willexclude all forms of democracy other than a narrow representative model. According to my reading,this is not implied in the decision; rather, the HRC understands the modalities of direct participation
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