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"THE
AND PROCEDURE
PRACTICE
HUMAN RIGHTS
COMMITTEE
INTERNATIONAL
COVENANT
AND POLITICAL
RIGHTS".
by
DOMINIC
McGOLDRICK,
VOLUME
Thesis
presented
Degree
of
Doctor
OF THE
UNDER THE
ON CIVIL
LL. B.
2.
to
Nottingham
University
Of
Philosophy,
October,
for
the
1988.
G2
/LRS!
TY_}
BEST COPY
AVAILABLE
Poor text in the original
thesis.
Some text bound close to
the spine.
Some imagesdistorted
426
CH. 6
6.
CHAPTER
6.1
1.
to
State
and
in
recognized
the
such
property,
origin,
Where
legislative
not
or
race,
as
or
birth
other
or
already
other
jurisdiction
Covenant,
present
other
provisions
of
the
language,
or
national
social
status.
provided
present
rights
distinction
sex,
colour,
each
Covenant
to take
undertakes
present
in accordance
its
with
constitutional
the
the
without
opinion,
measure^;
undertakes
its
within
individuals
all
its,
to
Covenant
present
to
ensure
subject
political
religion,
2.
to
kind,
any
the
to
party
and
respect
territory
of
2.
ARTICLE
Each
2.1
ARTICLE
by
for
State
the
to
party
to
the
steps,
necessary
processes
Covenant,
existing
and
adopt
with
such
8;
ECHR
UDHR
similar
provisions
see
art.
14;
1,13
AMR arts.
1,2
XVIII;
ADRD art.
and
arts.
and 25;
7
26;
Human
International
AFR
Rights
arts.
and
(1983).
the
Part.
D,
Instruments,
For
of
summary
a
2 see
Ch. V,
drafting
Article
U. N. Docs. A/2929,
and
of
'Guide',
Bossuyt,
On Article
A/5655
prs. 6-36;
pp. 49-73.
in particular
And
2 ICCPR
To Respect
see T. Buergenthal,
State
Obligation
Derogations,
To Ensure:
And Permissible
(ed. ),
in
Of Rights
L. Henkin,
Bill
The
International
(1981);
How Different
ICCPR,
The
B. Graefrath,
pp. 72-78,
Human
On
Standards
Countries
Implement
International
The
(1984-85)
Jhabvala,
F.
3-30;
Rights,
C. H. R. Y. B.
pp.
Committee,
Of
Rights
Practice
The
Covenant's
Hunan
6 HRQ (1984)
1976-82:
Of
Review
State
Party
Reports,
The
And
81-106
95-106;
Rights
F.
On
Human
Jhabvala,
pp.
at
(1984)
31
Socio-Economic
Context,
NILR
pp. 149-182;
Covenant
on
the
Domestic
Implementation
F. Jhabvala,
of
461-486;
(1985)
32
Civil
Political
Rights,
NILR
pp.
and
(ed. ),
Human
in
Civil
Rights,
T.
Meron,
R. B. Lillich,
Issues,
in
Policy
And
Rights
International
Law-Legal
Rights
Human
(1984);
132-136,
115
T.
Meron,
I,
vol.
p.
at
(1986);
119-123,
Law Making
Nations,
In
The
United
pp.
Obligations
T. Opsahl,
Human
Rights
Today:
International
in
Studies
And National
23
Scandinavian
Implementation,
The
International
(1979)
0. Schachter,
Law
pp. 149-176;
Obligation
on
To The Covenant
of
Parties
To Give
Effect
462-465,
(1979)
Civil
73
pp.
Political
Rights,
AJIL
and
The
(1979);
Implement
To
O. Schachter,
Obligation
The
(ed. ),
in
Covenant
above,
In
Domestic
Law,
L. Henkin,
For
(Footnote
Continued)
CH. 6
legislative
give
or
other
to
effect
measures
the
as
be
may
in
recognized
rights
to
necessary
the
present
Covenant.
3.
State
Each
(a)
as
that
any
ensure
herein
recognized
capacity;
(b)
To
shall
judicial,
legal
the
To
remedy,
effective
been
committed
by
to
party
any
other
competent
system
possibilities
of
of
are
the
judicial
the
in
acting
such
claiming
by
legislative
official
a
remedy
competent
or
authorities,
provided
and
to
an
has
violation
an
determined
State,
have
shall
that
authority
undertakes:
or freedoms
rights
violated
person
or
Covenant
whose
thereto
right
administrative
any
person
notwithstanding
by
persons
that
ensure
his
have
present
for
develop
by
the
the
remedy;
(Footnote
Continued)
(1981);
Of
The
pp. 311-331
Nature
E. Schwelb,
The
Obligations
in
Of The
Rene
States
Parties
In The ICCPR,
Cassin
Amicorum
Discipulorumque
Liber,
pp. 311-331,
(1969);
E. Schwelb,
International
Some
Of
The
Aspects
in
Covenants
On Human
1966,
A. Eide
Rights
Of December
(eds. ),
A. Schou,
Of Human
Protection
and
International
Rights,
Ramcharan,
(1968);
B. G.
107-110,
p. 103
at
(ed. ),
Equality
in
And
Henkin,
Non-Discrimination,
And
Equality
(1981);
above,
C. Tomuschat,
pp. 246-269
On
Non-Discrimination
Covenant
Under
International
The
Civil
Munch,
Political
in
Ingo
Rights,
von
and
von
(ed. ),
Europarecht,
Staatsrecht
Volkerrecht
Festschrift
fur
Hans-Jurgen
pp. 691-716
Schlochauer,
(1981);
Of
C. Tomuschat,
Implementation
National
(1984-85)
International
Standards
Rights,
On
Human
C. H. R. Y. B.
Equality
pp. 31-61.
More
and
on
generally
Non-Discrimination
Of
Public
Principles
Brownlie,
see
International
Greenberg,
J.
Law,
(1979);
596-598,
pp.
Sex and
Race,
Religious
International
In
Discrimination
in
law,
(1984);
T. Meron,
(ed. ),
8,
II,
ch.
vol.
above,
Equality
W. McKean,
Under
Non-Discrimination
And
International
Law,
(1983);
Fundamental
J. F. Partsch,
Of
Principles
Human
Determination,
Rights:
Self(Gen. Ed. ),
Equality
in
K. Vasak,
and Non-Discrimination,
(Eng. Ed. ),
P. Alston
The
Dimensions
International
of
(1982);
Human
Rights,
68-86,
I,
61
vol.
p.
pp.
at
P. Sieghart,
The
International
Rights,
Human
of
Law
In
(1983);
Action
Nations
pp. 56-59,67-71,72-84,
United
Of Human
The Field
Rights,
E. W. Vierdag,
(1983);
ch. IV,
Continued)
(Footnote
CH. 6
(c)
To
that
ensure
such
enforce
the
remedies
428
competent
when
authorities
shall
granted.
Introduction.
6.2
2 is
Article
key
in
violation.
with
the
These
general
respect
to
of
ARTICLE
2 UNDER
Article
2 (1)
State
HRC to
the
Covenant
constitutional
the
the
by
rights,
of
a
to
seem
in
recognized
rights
the
and
event
would
Article
REPORTING
HRC.
2
2
been
has
the
PROCEDURE.
from
precise
has
had
3
the
party
as
exactly
recognized".
In
single
how,
its
to
"To
general
the
of
of
to
on
article
its
and
4
order,
effect
comment
here,
Covenant
discretion
give
and
point
socio-political
the
of
legal
fundamental
The
the
ratification
State's
the
by
an attempt
that
effect
on
it
been
every
of
consideration
universality
a
2 leaves
Article
the
40 has
the
of
that
in
Article
order.
non-assumption
in
of
other
and
remedy"
undertakings
point
under
discern
following
the
starting
report
ensure"
those
comment
THE
and
to
1-27).
a general
the
effect"
all
(articles
ICCPR
The
"give
contains
legislative
the
adopt
"effective
subject
6.3
to
to
an
ensure
apply
ICCPR,
necessary
measures
to
the
it
as
"respect
to
undertakings
general
rights
important
critically
State
each
the
is
rights
2 the
HRC
noted,
(Footnote
Continued)
Of
Concept
Discrimination
The
(1973).
G. C. 3(13),
Doc. A/36/40,
In
International
Law,
p. 108.
its
"The
focus
Committee
therefore
should
human
the
attention
rights
primarily
on
of
reality
the
One
the
basic
factors
practices.
which
of
on
the
Covenant
depended
effectiveness
of
position
was its
in
16a
legal
128
the
SR
the
State",
pr.
order
of
(Tomuschat).
See ch. 1,
pr.
1.34
above.
"that
to
the
States
method
Committee
of
any
the
of
review
whether
any
revealed
and
example,
their
understanding
often
request
practices
action
constitutional,
taken
territories
this
accession
carried
out
of
the
the
or
or
legal
article".
of
information
or
with
divergencies
that
their
choose
their
in
out
compatibility
and
regulations
in
set
of ratification
body or organ
circumstances
to
matter
concerning
in terms
systematic
laws
State's
any
Covenant6
and,
-if
inconsistencies
proposed
or
it
leaves
generally
concerned
framework
the
members
whether
Covenant
parties
facilitate
To
the
implementation
of
within
the
2 of
Article
thereon,
so,
were
for
administrative
G. C. 3(13),
Doc. A/36/40,
p. 109;
n. 2 above,
pr. 1;
in
is
Doc.
the
CCPR/C/21.
this
also
The
of
corollary
international
law
customary
that
may not
a State
rule
invoke
law
internal
the
its
as
provisions
of
justification
for
its
failure
to
see
a treaty,
perform
Article
between
27 V. C. L. T.
1969.
the
See also
exchange
Mr.
Movchan
(SR 69 pr. 68)
U. K.
the
representative
and
(SR 70 pr. 12)
Article
the
under
concerning
obligation
2(2).
The
ICCPR
ECHR in
requiring
the
not
parallels
domestic
into
States
it
formally
incorporate
to
parties
law,
A. Drzemczewski,
see
ch. 1,
and
pr. 1.18-1.21
above
European
Human
Law,
Rights
Convention
In Domestic
ch. 1,
(1983).
6A
is
body
the
a
example
of
such
Interministerial
Committee
established
on human rights
by
the
Italian
Committee
in
1977.
The
government
4.
the initial
CCPR/C/6/Add.
Italian
prepared
Doc.
report,
See also
Add-1,
the reports
Doc. CCPR/C/14/
of Australia,
43, vol. 1, pp. 6-7
Doc. CCPR/C/Add.
p. 16 (1981)
and Canada,
(1979).
being
Note
the
After
Suriname.
also
case
of
informed
1980
following
that
February
the coup d'etat
of
be appointed
the
a Committee
would
to study
amendments
be
to
Rights
to
the
Human
Constitution
the
made
Committee
it
thought
that
the best
that
play
could
role
be to highlight
to be taken
would
some of the matters
into
its
to
account
with
ensure
compatibility
the Covenant.
obligations
under
See SR 223,224
and 227.
good
changes.
on
If
ratification
their
or
been
made
the
the
of
been
ask
for
and
the
party
ratification
approach
of
to
why
of
had
they
being
was
withdrawal
HRC's
the
status
on
and
the
or
accession.
how their
respective
clear
and
legal
regime
to
prior
legal
regimes
the
laws
of
upon
subsequent
are
the
has
between
and
For an 'account
of
some such
State
pr. 4 (Austrian
representative);
Zealand
State
representative).
s''of
internal
the
States
within
attention
relationship
and
detailed
Covenant
the
technical
very
Constitution
enacted
of
then
considerations
made
clarification
as
upon
exact
concentrated
State
explain
of
constitutional
9
At times
parties.
covenant
typical
their
insistence
respective
thus
the
explanation
an
theme
A consistent
its
been
State's
to
been
had
exposition
the
been
whether
and
considered.
has
accession
scope,
precise
declarations
or
HRC has
the
of
members
6.4
reservations
requested
would
to
resolve
416
SR
see
changes
SR 481 pr. 4 (New
44
e. g.,
U.
K.
the
concerning
and
to
to
Article
preserve
reservation
as
so
immigration
43.
A
70
SR
number
For
pr.
controls.
see
reply
deposited
States
have
to
or
of
made
reservations
interpretative
Human
declarations
Covenant,
the
see
on
(1987);
Rights
Status
Instruments,
Of
International
'Reservations,
And
Declarations,
Notifications
On
Objections
Covenant
Relating
To
International
The
Civil
Thereto',
Rights
And
Protocol
The
Optional
decision
Doc. CCPR/C/2/Rev.
1,
(11
1987).
No formal
May
been
has
by
taken
the
their
HRC concerning
competence
State
to
D. Shelton,
with
respect
reservations,
see
Treaties,
Practice
On
Reservations
Human
Rights
To
(1983)
Can. HRYB. p. 204 at pp. 230-231.
See
(Prado-Vallejo)
SR
65
69
prs.
(Movchan)
12(4)
13
(Graefrath),
"(T]he
See e. g.,
SR 345 pr. 33 (Opsahl
Rwanda).
on
Covenant
both
its
for
requires
and their
respect
rights
into
incorporation
And
the
Covenant
the
ensurance.
of
law,
domestic
these
of
per
se,
will
neither
achieve
the
it
objectives
of
although
some
away
may
clear
to
their
Jhabvala,
obstacles
n. 1 above,
achievement",
(on
(1985).
See also
Tomuschat,
to n. 86 below
p. 483
text
U. K. ).
the
of
problems
Covenant
those
and
including
the
institutions
between
conflict
of
role
provisions
its
Constitution
and
of
customary
laws,
tribal
and
the
10
traditions.
internal
are
of
Details
are
they
uncertainty
as
the
courts.
6.5
From
general
the
questions
comment
noted
ICCPR to
into
its
formally
number
above13
States
domestic
have
parties
put
HRC
are
not
incorporate
law.
The
the
vast
incorporated
not
theoretical
jurists
members
the
of
the
terms
of
and
its
seem
terms
and
of
ICCPR
the
of
majority
ICCPR
by
and
its
points
by
obliged
the
State
if
applied
by
as
--State's
law becaupe
municipal
interpretation
of
Firstly,
clear.
by
and
in
the
latest
the
give
its
and
academics
often
advanced
principles
12
its
of
definitive
between
and
sought
purpose
give
relationship
obligations
conceptions
the
the
of
exposition
international
to
unable
laws
traditional
for
the
taken
of the Covenant
of the account
legislation
interpreting
of domestic
provisions
for
the
authorities
administrative
standard
11
discretionary
of.
powers.
exercise
representatives
the
of
States
have
not
10
40
(Tomuschat)
and
24
See e. g.,
SR 345
prs.
SR
Iran),
(Hanga
(Graefrath)
39
on
365
SR
pr.
on Rwanda;
(Movchan
20
481
SR
402 pr. 40 (Ermacora
pr.
on Australia),
on New Zealand).
11
Norway).
(Vincent-Evans
on
9
SR
e. g.,
pr.
and
presumption
Interesting
of
rules
of
examples
by
Denmark,
see
interpretation
those
applied
are
40
(Hanga),
11
54
19;
4
SR
Doc. CCPR/C/Add.
prs.
and
is
ECHR
The
(State
(Opsahl)
53
representative).
and
For
a notable
by
U.
K.
increasingly
to
courts.
referred
Newspapers
Guardian
Attorney-General
v.
see
example,
[1987]
3 All
ER 316.
Ltd.,
12
Add. 6,
13
77
See
the
See e. g.,
pp. 9-22.
See text
to
report
n. 5 above.
of
Portugal,
Doc. CCPR/C/6/
attracted
States
parties
include
the
Australia,
include
Colombia,
open
do
so
States
to
is
it
by
precluded
the
2aU.
article
Yugoslavia.
to
incorporate
S.
"[t]he
that
not
themselves
become
national
law",
was
decisively
rejected.
questions
6.6
of
Further
for
requests
governmental
general
development
specific
and
self-execution
of
article
information
executive
they
of
held
to
the
be
is
not
drafting
of
the
of
on
16
the
0
has
these
prompted
of
exercise
human
affecting
powers
it
as
effective
15
Academic
2
on
the
some
agreement
and
law
if
provisions
shall
in
seem
incorporation
have
and
the
Covenant
commentators
that
possibility
during
Moreover,
proposal
be
U. K.,
however,
least
could
such
the
Italy,
ICCPR
the
ICCPR
ICCPR.
Japan,
at
ICCPR
domestic
of
Secondly,
that
Certainly
self-executing.
level
some
and
the
parties
Hungary,
possible
of
provisions
at
the
G. D. R.,
the
States
F. R. G.,
Peru
Netherlands,
is
Poland.
ICCPR
the
not
basis.
that
on
incorporated
Denmark,
and
incorporated
HRC members
have
that
U. S. S. R.,
the
from
criticism
14
to
been
have
as
example,
sought
explanations
human
the jurisdictional
affecting
competence
on matters
in federal
States,
how the necessary
rights
uniformity
in
is
international
to comply
attained
with
obligations
17
be
federal
States,
how
resolved.
would
and
conflicts
the
of
We have
the
that
provisions
already
noted
For
rights.
14
"Subsequent
the interpretation
is not required
by
p. 314 (1981).
15
above,
to
further
lent
has
support
practice
law
domestic
into
incorporation
that
Schachter,
n. l above,
the Covenant",
Doc. E/600,
Doc. A/2929,
pr. 12. See also
Report
Group on Implementation.
of Working
16
See
Graefrath,
e. g.,
ibid.,
(1984-85);
Schachter,
(1985);
Lillich,
ch. 1, n. 231
n. 1 above,
p. 46.
17
See e. g.,
SR 94 pr. 16
n. 1
ibid;
above
ch. 1,
n. 1
Tomuschat,
above;
Jhabvala,
n. 1 above
(1985);
Green,
ch. 1,
(Koulishev
on FRG).
CH. 6
Covenant,
"Extend
limitations
or
expressed
by
original,
"[g]eneral
to
exceptions".
HRC
2 and
paragraphs
all
2,
article
3,
and
was
withdrawn
be given
the
and
effect
in
provisions
Australian
original
the
with
replaced
Declaration,
following
has
"Australia
federal
legislative,
which
and
the
the
treaty
the
Commonwealth,
haviag
powers
exercise".
or
throughout
to
regard
and
20
The
HRC have
the
new Declaration
Article
States.
constituent
not
Australia
will
their
respective
and
50.
its
See ch. 1,
constitutional
to
21
opportunity
pr.
effect.
1.24
by
authorities
their
concerning
legal
of
be effected
Territory
and
an
powers
implementation
state
had
in
Commonwealth
the
The
arrangements
yet
judicial
and
between
distributed
shared
system
constitutional
executive
are
18
The
2,
article
50 shall
subject
19
2".
were
Australia's
that
to
without
doubts
concerning
article
and
States
Considerable
members
paragraph
reservation
federal
of
reservation
with
consistently
parts
18
433
comment
on
above.
19
86.
For
8
p.
Status',
Rights
above,
See Human
n.
and
SR 401,402,403,407
HRC's
the
see
consideration
28
(Prado-Vallejo),
11
402
for
SR
408.
See,
prs.
example,
(Ermacora).
see
For
comment
37
(Movchan)
academic
and
International
Of The
Ratification
Australia's
G. Triggs,
Or
Endorsement
Rights:
Political
And
On Civil
Covenant
H. Burmeister,
(1982)
31 ICLQ,
Repudiation?,
pp. 278-306;
34
ICLQ
Perspective,
An
Australian
Clauses:
Federal
(1985)
pp. 522-537.
20
21
Human Rights
See
Declarations,
D. McRae,
(1978)
Status,
n. 8 above,
Of
The Legal
Effect
49 BYIL pp. 155-173.
p. 29.
Interpretative
V- n.
Similarly
the
of
6.7
searching
territorial
States
dependant
with
application
where
situations
Government
the
Of
Elimination
formal
situations.
6.8
The
has
HRC
has
to
the
realms
attended
has
number
the
of
need
when
national
Committee'On
which
recognized
go beyond
the
the
surrounded
or
and
been
not
Discrimination
have
not
to
respect
be in
control
outside
concerning
respect
22
concerning
territory23
has
questioning
Racial
decision
25
considerations
are
may
national
deployed
in
territories.
questioned
(1)
with
concerning
asked
Covenant
the
been
the
that
controversy
have
been
overseas
Article
of
whole
forces
armed
24
Such
territory.
the
have
of
the
over
its
or
States
of
y}q
of
applicability
A number
the
questions
by
The
adopted
such
of
for
its
constitutional
22
70
SR
See e. g.,
(Graefrath)
SR 69 pr. 12
and
439
SR
K.;
U.
the
pr. 19 (State
representative)
concerning
(Vincent-Evans
territorial
On the
France).
pr. 46
on
application
of the Covenant
see ch. 1, pr. 1.24 above.
23
37
(Vincent-Evans),
See
2
443
SR
e. g.,
prs.
27
(Ermacora),
55 (Tomuschat),
SR 444 prs. 12 (Opsahl),
446
SR
(Aguilar)
(Bouziri)
40
at
Lebanon;
reply
and
on
Salvador);
El
(Prado-Vallejo
SR 468
23
pr. 44;
on
pr.
165
SR
15;
prs
474
468
36-38,
SR
SR
reply
at
pr.
prs.
reply
19-21
on Cyprus);
and SR 166 pr. 52 (Prado-Vallejo
at SR 165 prs 33-45
and SR 166 prs 57-58.
24
70
(reply),
62
(Opsahl),
44
160
See e. g.,
SR
prs.
13
444
SR
pr.
(Opsahl),
See also
73 (Chairman)
on Syria;
the
has
taken
EUCM
(Opsahl
The
Lebanon).
on
as corrected
for
is
State
responsible
ECHR a
that
the
under
view
to
Convention
in
the
freedoms
the
rights
and
securing
"[A]ctual
and
authority
their
under
persons
all
is
exercised
that
authority
whether
responsibility,
Cyprus
v.
territory
the
abroad",
or
national
within
(1975).
2 D. & R. p. 125, Decn. Admiss.,
Turkey,
25
Convention
Nations
on
The United
See N. Lerner,
Pt. IV,
Of Racial
Discrimination,
ch. IV,
Elimination
the
U. N.
Case and the
(2d 1980);
N. Lerner,
The Golan
Heights
(1973)
Yb. HR.
3 Isr.
On Racial
Discrimination,
Committee
On The
Convention
T. Meron,
The International
pp. 118-135;
And
Of
Elimination
All
Forms
Discrimination
Of
Racial
Continued)
(Footnote
In
theory.
recognised,
(of
or
not
does
ICCPR)
the
legislative
commented
"The
not
in
sufficient".
on
constitutional
themselves
Similarly,
it
that
implementation
the
depend
which
26
HRC stated
that
solely
enactments,
se
per
the
comment
a general
"[i]n
particular,
Mr.
often
has
Tomuschat
are
that,
the
of
abstract
rules
about
settlement
between
different
kinds
sources
conflicts
of legal
in judicial
Were
needed to be implemented
practice.
judges
to
to
competent
such"'-rules,
give
effect
invalid
declaring
inconsistent
take
inconsistency
or
Supreme
Court?
freedoms
enshrined
to
Covenant,
Article
6.9
The
has
been
will
territory
recognized
of
any
proclaimed
rights
did
second
27
Constitution
and
freedoms
have
an
Constitutionality
for
it
aspect
to
to
review
and
the
the
to
and
rights
largely
were
in
the
system
effective
27
of laws? ".
for
enshrined
ensure
to
in
It
is
to
now
170
32.
instruments
8
Isr.
Yb. HR.
And
Reach
Of
n. 2 above,
pr.
38
the
of
Covenant
to,
within
its
the
jurisdiction
trite
which
implementation
under
individuals
Covenant,
international
G. C. 3(13),
SR
Doc. CCPR/C/Add.
by
all
its
Article
to
approach
information
of
national
obligations
and
subject
in the present
kind".
kind
the
seek
international
HRC's
the
of
it
(Footnote
Continued)
Heights,
Golan
The
The
Meaning
T. Meron,
(1985)
pp. 283-318.
26
the
Finland
the
the
since
issue
2(2).
allow
state's
"Respect
in
concerning
the
refer
Lastly,
the
controlling
decisions
they
would
they
Could
Covenant?
such
be
would
which
norm
the
with
themselves
similar
legal
without
comment
right
distinction
that
rights
may be worthless
(1978)
pp.
ICERD,
The
222-239;
79 AJIL
pr. 1.
on
Finland's
report,
CH. 6
they
unless
provisions
28
level.
by
is
It
implemented
effectively
and
supreme
and
are
organs
this
2,
national
domestic
the
at
dimension
system
Article
underlies
through
operating
national
the
of
aspect
436
is
which
international
of
paragraph
provided
for
the
control
which
provides
that,
"Where
not
already
legislative
the
or
present
necessary
to
measures
the
is
It
international
mere
that
texts
"respect
and
diversity
ensure"
of
traditions
try
to
the
national
31
this.
to
effect
present
HRC,
the
as
implementation
prepared
ascertain
effect"
in
rights
the
processes,
to
go
intensively
on
beyond
look
at
to
and
30
ICCPR.
the
to
The
socio-legal
techniques
implementation
In
or
give
the
such
"give
to
constitutional
and
necessitates
be
of
legislative
in
must
its
provisions
necessary
body,
the
take
with
such
national
and
taken
measures
be
the
review
legal
adopt
any
obligations
formal
practical
may
to
the
with
recognized
evident
to
attempting
as
to
rights
29
Covenant".
6.10
Covenant,
and
to
party
accordance
processes
present
other
in
steps,
existing
State
other
measures
each
* undertakes
Covenant
constitutional
the
by
pursuing
this
28
1
See
Opsahl,
1
Jhabvala,
n.
above
n.
above;
in
Reality,
(1985);
Legal
K. Vasak,
Human
As
Rights:
a
Sorenson,
3-10;
M.
(eds. ),
Alston,
1
Vasak/
pp.
n.
above,
Party
To
Concerning
A State
Of
A
Report
Obligations
in
A. H. Robertson,
As Regards
Its
Law,
Treaty
Municipal
(ed. ),
in
International
Law,
Human
Rights
National
and
(1968).
pp. 11-46
29
SR
370
My
See
emphasis.
prs. 20-21
(Vincent-Evans).
On the essentially
supplementary
nature
human rights
of international
protection
see the EUCT in
Linguistics
The Belgian
Case,
Series
A,
Vol. 6.
EUCT,
11 YBECHR p. 832.
pr. 10 (1968),
30
31
See e. g.,
Tomuschat,
See Jhabvala,
text
n. 1 above,
to
n. 27 above.
31 NILR
(.1985).
CH. 6
Committee
objective
factual
information
example,
judicial,
for
responsibility
bases,
procedures
court
or
organ
Mediateurs,
Human
National
administrative
35
36
e. g.,
other
rights
or
legal
the
rights;
pr. 29
SR 603
SR 84
See
e. g.,
SR 354
pr.
See
e. g.,
SR
441
pr.
42
SR
(Opsahl
the
of
role
of
on Uruguay).
on
(Graefrath
(Al
the
and
of
principle
(Serrano-Caldera
(Lallah
pr.
effect
41
51-52
prs.
e. g.,
e. g.,
on Japan);
"the
or
or
norms
prohibitive
as
and
define
precisely
legality";
SR 357
37
38
the
See
See
(Vincent-Evans
human
legislative
such
"socialist
See e. g.,
See
Afghanistan).
and
more
and
39
Covenant;
or
33
34
which
principles
legality"40
32
Rights
the
unwritten
administrative,
for
Commissioners37
38
Commissions;
executive
Constitutional
in
rights
of,
Liberties
measures
delineate
substantive
clarification
affecting
human
ensuring
courts;
36
Civil
economic
sought
type
and practices
of
of any special
having
jurisdiction,
for
exceptional
32
tribunals,
or
special
criminal33
34
35
the
Ombudsmen,
role
of
military
example,
and
executive,
jurisdiction
having
bodies
have
members
on
437
Dour:
on
Madagascar).
on
Guyana).
en
France).
(Opsahl),
319
pr. 12
10.
324
SR
pr.
at
reply
35
(Prado-Vallejo
SR 420
on
e. g.,
pr. 26
Assembly
See ch. 1, n. 119 above.
The General
Nicaragua).
for
has repeatedly
the establishment
of national
called
human rights
organisations.
and private
39
See
..
,.,...
.,..
Ecuador).
40
SR 77 pr. 9 (Vincent-Evans
e. g.,
O. Garibaldi,
See
General
Limitations
also
Rights:
The Principle
Of Legality;
17 Harv.
pp. 503-557.
41
See
See e. g.,
SR 108
pr. 29
(Mora-Rojas
Norway).
Human
on
(1976)
ILJ.
on
on USSR).
public
and
the
social
protection
rights;
of
press,
frequent.
directed
in
the
is
illustrated
in
We have
Covenant
the
whether
Political
to
respect
Covenant.
approach
this
thesis.
was
echoed
42
nature.
in
academic
Generally
J. P. Humphrey,
The
(1986).
43
That
writings.
see
World
of
on
little
rights
substantive
drafting
the
Civil
has
of
P. Sieghart
The Rule
or
been
since
J. Ziman,
And
Science
and
immediate
an
discussion
of
concerning
the
of
rights
of
a selection
discussion
freedom
on
specifically
more
the
more
information
during
be
47
statistical
implement
to
would
to
45
extensive
obligation
46
of
that
noted
Covenant
progressive
each
the
on
for
obviously
The
already
there
is
freedom
42
the
restrictions
detailed
of
in
role
research;
becoming
of
political
example,
Requests
This
with
for
scientific
be
to
pursuit
implementation
national
the
43
and
a significant
and
rights.
seem
44
and
limitations
of
enjoyment
information
play
in
unions
effects
civil
Covenant,
the
association
of
existence
6.11
of
the
of
that
trade
as
rights;
enjoyment
freedoms
general
implementation
the
the
on
such
human
of
collectivism
the
organisations
made any
Of
and
Law,
expression.
44
See e. g.,
SR 628 pr. 34 (Movchan
on Luxembourg).
information
For an example
see
the
such
of
of
provision
SR 581 pr. 31 (Dominican
Republic).
45
See ch. 5 above and chs. 7-12 below.
46
See ch. 1, pr. 1.17 above.
47
by Jhabvala,
HRQ
See the
n. l
above
articles
6 HRQ (1984)
1984),
subsequent
at
and
correspondence
(Humphrey)
(1985)
7
HRQ
pp. 539-540
p. 565
and
(Y. Iwasawa);
Schwelb,
Schachter,
n. 1 above;
n. 1 above;
(1981);
Tomuschat,
SR 206 prs. 16-18
n. 1 above,
p. 694
(Tomuschat).
P. Alston
and G. Quinn,
p. 173,
n. 48 below,
"[I]n
it
comment,
that,
practice
argued
can be strongly
in at least
some states
to the Covenant
parties
on civil
(Footnote
Continued)
439
clear
statement
on
General
Comment
members
have
obligation
on
immediacy
of
including,
(Footnote
is
fair
2 of
of
specific
economic
there
the
as
to
immediacy
the
48
ICESCR.
accompanied
are
rights
problems
conditions,
many
in
progressive
However,
by
this
the
clear
the
to
Covenant.
been
have
the
of
obstacles
the
individual
that
note
with
in
Committee
the
the
been
has
that
achievement
number
it
stressed
it
contrasted
acknowledgement
full
question
generally
and
in Article
obligation
stress
but
that
49
discussed
under-development,
Continued)
Rights,
and Political
are by no
rights
certain
of those
Moreover,
immediate
means
susceptible
of
realization.
the
the
is
in
being
that
fact
with
standard
applied,
implicit
the
(but
of
certainly
endorsement
unstated)
173.
HRC, is one of progressive
p.
achievement",
48
(Vincent-Evans
on
See
54
SR
e. g.,
pr. 18
551
SR
(Movchan
Australia),
Denmark),
SR 402
29
on
pr.
the
Cf.
though
(Opsahl
4
Tobago.
Trinidad
pr.
on
and
implementation
"[i]t
could
that,
that
comment
was clear
On
Mongolia).
(Movchan
198
be
35
SR
on
gradual",
pr.
Of
Nature
Legal
The
2
ICESCR
E.
W.
Vierdag,
see
article
On
Covenant
Granted
Rights
International
By
The
The
(1978)
9
NYIL
Rights,
Social
Cultural
Economic,
and
Scope
Of
And
Nature
The
69-105;
P.
Alston
G.
Quinn,
and
pp.
International
The
Obligations
Under
Parties'
States
9 HRQ
Rights,
Social
And Cultural
On Economic,
Covenant
On
Article
Paper
156-229;
(1987)
Working
Y.
Klerk,
pp.
Covenant
3
On
International
2(2)
Article
the
of
and
(1987)
9
HRQ
Social
Cultural
Rights,
Economic,
and
16-34
Principles
Principles
Limburg
the
pp. 250-273;
of
ibid.,
implementation
the
ICESCR,
of
pp. 122-135,
on the
ibid.,
M. K.
commentary,
pp. 136-155;
and
accompanying
Justiciability
And
Addo,
The
Social
Of
Economic,
Rights,
Paper
for
Cultural
Southampton
University
of.
for
International
Centre
1988.
Policy
March,
Studies,
49
473
See e. g.
pr. 29 (Aguilar
(Aguilar
on Mali),
SR
zs0
has
realism
to
approach
that
by
saying
members
in
obligation
they
to
that
in
rights
the
a State
which
to
provide
There
accept
in
obligation
that
sense
justify
State
party
by
an immediate
"The
doubts
the
CCPR.
enjoyed
limits
true
has
No member
a margin
during
of
Rights
understanding
the
of
views
the
merits
the
Optional
has
chosen
which,
are
50
on
made
by
adopted
of
has
Nor
cases
an article
as
See e. g.
(Graefrath
to
2(2)
States
that
the
of
conformity
of
time
their
could
obligations
any
Even
CCPR.
human
the
brought
to
The
format
any
appearing
government
defended
Committee
such an
Protocol.
a
and
contain
article
concerning
full
which
international
their
to
not
not
maintained
discretion
conduct
with
be brought
about.
before
the Human
the
ever
of
the
commented,
had
never
has
meaning
in
policy
2 does
Committee
the
of
has
the
that
chose
a matter
HRC
the
one
that
Article
or
that
effect
Mr. Tomuschat
Rights
about
as
is
implementing
progressive
could
the
justification
the
that
obligation.
Human
is
or
of
proof
of
suggestion
to
right
arguing
burden
specific
no
to
prevent
immediately
some
a particular
this
not
Article
a
implement
is
that
point
can
implementation
the
the
but
one
which
effect
argument
HRC's
viewed
who
parties
In
been
from
immediate
an
of
summarize
individual
generally
difficulties
has
any
have
as
best
emerged
immediate
and
sense
the
perhaps
have
States
and
party
explanation.
would
Covenant.
Covenant
can
they
to
full
the
pr. 37
seems
factors
hinder
the
One
sympathetic
are
specific
on
date.
Article
That
throughout
persisted
considerations
the
illiteracy.
drought,
unemployment,
50
for
by
-
violations
SR 282 pr. 2
on Rwanda).
its
Human
attention
Rights
which
(Tarnopolsky
on
under
Committee
to
according
views
article
are
Committee
Rights
such
-
conclusive
more
basis,
have
findings
occurred.
on
Mali);
If
345
CH. 6
have
been
What
the
"The
of
compliance,
51
made".
HRC have
does
Covenant
States
respect
human
also
activities
by
individuals
to
equal
the
"...
those
of
men
to
as
the
role
has
of
positive
51
52
taken
obligations
n. 1 above
pr.
pr. 66
prevention
among
action
designed
to
rights.
of
laws.
Hence
more
have
purely
been
precise
3
to
view
to
the
This
regarding
a
article
i.
as
of
to
(1984-85),
the
far
so
addition
under
in
grounds,
with
effect
this
forth
protection,
3/13,
n. 2 above,
on USSR), SR 440
of
measures
in
give
enjoyment
required
practice
in
measures,
to
the
only
not
been
of
{on
the
of
enjoyment
by enacting
measures
Tomuschat,
G. C.
(Opsahl
women
26 in
with
affirmative
generally
what
legislative
being
also
obvious
principle
and
number
enable
is
set
2(1)
requires
specific
to
in
rights
positive
done simply
ascertaining
are
one,
but
be
cannot
information
the
on
the
under
for
the
to
deal
States
ensure
This
but
all
articles
to
article
women
primarily
is
protection
ensure
and
confined
that
calls
rights.
the
the
individuals
all
(e. g.
52
sex
the
that
parties
ICCPR}),
relates
articles
which
pr. 13
the
3,
not
to
aspect
their
enjoy
discrimination
of
that
fact
but
States
rights
Article
is
to
This
articles
Covenant".
could
is
the
rights,
the
in
to
rights
of
undertaking
findings
undertaken
number
rights
States
on
clear
make
Covenant
the
enjoyment
of these
jurisdiction.
their
in
such
parties
of
have
parties
no
to
chosen
under
obligation
impose
active
of
attention
to
on States,
obligations
it
to draw
considers
necessary
place
Committee
the
intended
not
duty
strict
6.12
had
CCPR
the
441
and
or
and
to
p. 42.
SR 1.09
See also
(Opsahl
on France).
vu.
ascertain
positive
parties
inevitable
an
other
Covenant.
legislation
on
designed
to
dealt
those
which.
male
and
office".
In
the
special
the
2.54
However,
and
"affirmative
in
54
of
for
the
backward
as
or
had
there
draft
of
action"
prs.
call
seems
2-3;
for
to
go
well
Doc. A/36/40,
not
may
the
public
objection
which
under
and
socially
of
be
not
should
meaning
"specific
degree
hold
no
any
society
the
within
to
of
regulate
in
the
right-'Of
been
article
have
between
or
the
of
non-citizens
sections
HRC's
G. C.
4(13),
Doc. CCPR/C/21.
may
advancement
"distinction"
the
scope
Committee
interpretation
educationally
53
to
marriage
53
Third
citizen
the
affect
measures
construed
female
by
or
with
is the
to
this
undertaken
may itself
One example,
among others,
immigration
laws which
distinguish
woman to
also
than
in
made
article
measures
adversely
to
that
impact
matters
being
obligation
under
administrative
6.13
r,}a}L
is
progress
the
regard...
States
what
article
activities"
beyond
this
pp. 109-110;
that,
Tomuschat,
(1981),
comments
n. 1 above,
"...
[a]rticles
2(1)
affirmative
and 26 do not prohibit
interests
designed
further
the
of
to
action
(citing,
traditionally
disadvantaged
groups
minority
inter
that
Doc. A/C. 3/1259,
33,34)
provided
alia,
prs.
to
does
overt
granting
such
privileges
amount
not
by
field
discrimination
the
the
In
covered
of
majority.
instances
happen,
the CCPR, such
and
civil
rarely
will
being
directed
governmental
political
rights
against
'from'
interference
freedom
in private
the
Such
affairs.
benefit
State
be
for
the
solely
of
cannot
enhanced
to this
In
comment
specific
groups",
pp. 715-6.
a note
be
"[I]t
to
Tomuschat
unwise
adds,
certainly
would
issue
the
to
that
the CCPR provides
contend
a solution
by the
'adverse
discrimination'
U. S.
with
of
as dealt
in the famous case Bakke case,
Supreme Court
see Regents
438 U. S. 265
of The University
of California
v. Bakke,
(1978)".
See also
important
decision
the
of the
recent
in Johnson
U. S. Supreme
Court
Agency
v. Transportation
Clara
Of Santa
County,
California,
55 U. S. Law Week 4379
(25/3/87).
CH. 6
context
to
and
asserts
the
ensure
rights
Unfortunately,
the
"affirmative
the
whether
or
progressive
but
possible
are
faced
question
importance
the
to
it.
that
in
rights
58
and
the
the
parties
respective
Covenant,
immediacy
59
State
have
States
the
inevitably
would
fully
the
of
lesser
assumed
with
sharply
which
have
guarantee
the
parties
example,
Doubts
for
otherwise
or
has
systems
for
rather
States
condemn
analyst
many
for
striven
Corrments. contrast
of
U. S. S. R.
2 is
HRC and
legal
General
attitude
their
the
article
the
The
passive
argued
U. K.
than
the
of
in
obligation
attach
between
as to
immediate
the
ICCPR when thay
56
In
terms
a
of
difficulties.
dialogue
the
implement
and
debate
the
to
55
ICCPR.
activities"
States
40 procedure
genuine
the
HRC has
with
to
obligation
in
article
the
noted
failures
with
positive
resolve
under
as
article
constructive
parties
not
dialogue"
the
the
the
does
obligation
"[c]onstructive
use
general
recognised
"specific
for
call
action"
the
than
a more
443
G. D. R.,
been
57
the
as
expressed
55
jurisprudence
under
The
obligations
on positive
Marcxx
See the
the
ECHR has been
limited
to date.
rather
Case
(1979);
Airey
Belgium,
EUCT,
31,
Series
A,
v.
vol.
Cf.
Article
(1979).
32,
Ireland,
EUCT,
Series
A,
v.
vol.
1(4)
ICERD
4 CEDAW which
state
expressly
and
article
deemed
be
that
or
not
certain
special
shall
measures
discrimination.
considered
56
57
532
(State
58
and
593
59
and
564
above.
Docs. CCPR/C/1/Add.
representatives).
13
17,
22
and
and
and
C/28/Add.
C/32/Add.
C/28/Add.
2;
5;
3;
SR
65,
SR 67
SR
108
t-LL
to
the
and
correctness
With
and
to
HRC
to
as
the
of
principle
individuals
all
jurisdiction
Covenant,
status,
other
the
60
in
See
69,70,593-598
(USSR).
570
61
or
respect
religion,
social
is
of
effect
"To
accordance,
its
to
subject
and
in
the
-"present
origin,
usually
kind,
(1985),
drawn
and
536
other
or
to
of
race,
as
such
birth
property,
and
108,109,112,
Opsahl
give
political
non-correlation
SR 65,67,68,532-534
(U. K. );
SR
See Jhabvala
any
general
detailed
provisions
and
embody
recognized
of
the
legal
territory
rights
Attention
status".
requested
its
(or
request
non-discriminatory
language,
national
Article
of
been
to
It
HRC members60
non-discrimination
which
distinction
without
by
constitutional,
within
sex,
colour,
has
measures
administrative
the
the
aspect
the
of
both
claims
61
to
respect
62
non-distinction)
practice
information
such
commentators.
academic
6.14
of
-t It
.V
and
the
or
comment
terms
of
(GDR);
SR 67,
"564-567
and
Schachter
at
n. l
above.
62
to
have
referred
generally
members
Commentators
discrimination
than
to distinction.
rather
in
is
in
this
no
context
that
there
seem
agreement
in substance
difference
see e. g.,
between
the two terms,
term
the
48
ICESCR
Klerk,
The
uses
n.
above,
Third
the
2.
In
"discrimination"
in
its
article
in the draft
"distinction"
the suggestion
Committee
that
by "discrimination"
accepted
ICCPR be replaced
was not
the
felt
that
term
the
Committee
some
members
of
as
"discrimination"
had acquired
which
of meaning
a shade
in
it
the
the
less
of
context
appropriate
rendered
"distinction"
had
term
the
ICCPR. It was also
that
noted
in
Charter
both
the
U. N.
been
the
and
used
also
declaration,
The
French
Universal
Doc. A/5655
pr. 19.
in
"sans
both
distinction
appears
aucune",
expression
2 ICCPR and article
2 ICESCR. The European
Court
article
faced
in
Of Human Rights
this
of interpretation
problem
Linguistics
the Belgian
Case,
Series
A, 11 YBECHR p. 832,
it
followed
the
where
pr. 10 (1968),
restrictive
more
"discrimination"
in the English
term
text.
HRC
t-n.
laws
State's
distinctions
6.15
particular
importance
of
provisions
Report
guarantees
no
political
importance
ideology
specific
Constitution.
Covenant,
all
socio-political
the
freedoms
6.16
to
concerning
have
the
the
in
Questions
related
of
protection
the
such
other
access
Covenant.
accorded
ownership
realization
the
of
in
property
rights
63
431
65
Doc. CCPR/C/4/Add.
the
remained
the
the
of
for
opt
such
question
fundamental
various
to
and
for
example,
article
under.
which
more
(Ermacora
often
are
concerns
terms
of its
See e. g.,
SR 361 pr. 24
pr. 4 (Tarnopoisky
on Peru).
64
to
service
matter
significance
of
rights,
public
Another
some
in
non-discrimination
substantive
to
free
which
65
a context",
concerning
in
Article
the
of
assumed
country
there
system,
of
of
enshrined
were
the
existence
omission
under
peoples
during
irrespective
was
While
on
Covenant,
the
an
in
the
Tarnopolsky
Mr.
rights
Such
to
example,
the
of
equal
opinion.
considerable
of
2 of
mention
of
drawn
Poland64
of
of
discrimination
For
Article
with
made
been
opinion.
the
that,
commented
"In connection
report
2(1).
has
series
63
prohibiting
political
of
consideration
the
with
attention
of
grounds
440
practices
in Article
forth
set
In
the
and
25
HRC members
issue
the
of
role
both
specifically
on
Jordan),
in
as
SR
2.
108
SR
187
SR
See
pr. 48
also
pr. 44.
(Tomuschat
(Vincent-Evans
42
USSR);
SR 483
on
pr.
on
last
Yugoslavia).
To
the
the
comment
state
"[E]xpert
that,
representative
replied
opinion
on
law
Constitution
that
the
constitutional
considered
discrimination
prohibited
on
of
grounds
political
That
the
the
opinion.
was
also
of
practice
Constitutional
ibid.,
is
It
courts",
understood
pr. 43.
issue
had been widely
that
this
in Yugoslavia
discussed
in the light
over a number of years
of the ICCPR.
Ln.
"other
within
importance
coming
potential
leading
this
view
Mr. Hanga,
of
knew
that
equality
buttressed
by
social
and
then,
the
role
State
property,
property?
In
ownership
contribute
de
and
facto
political
6.17
provided
organ
existed
of
for
(now
monitoring
the
Another
for
matter
the
seemingly
We have
included
in
67
or
eliminating
the
Racial
privileged
de
of
jure
economic,
concerned
other
whether
and
the
with
Race
than
any
the
of
the
Board
69
U. K.
attention
has
Relations
in
some
position
any
existence
Equality)
of
the
"working
to property
that
no right
see ch. 1, n. 200 above.
37.
Ch. l,
pr. 1.35
above.
"Position
the
on
of
Doc. A/41/40
pp. 117-119.
See
G. C. 15(27)
Covenant",
in
charged
attracted
already
noted
the Covenant,
SR 109 pr.
68
69
which
fb)ms
citizens
Covenant68
specifically
has
personal
the
have
and
was
For
was
"67
aliens
the
In
there
various
citizens
raised
example,
Commission
66
was
in
which
discrimination,
of
life?
between
those
be
to
equality,
and
guaranteeing
commonly
made
those
to
social
matters
distinctions
did
way
HRC's
property?
USSR
the
Its
What,
such
property,
equality
and
Other
task
what
of
in
group
needed
ensure
that
the
structures.
ownership
rights
by
rights
economic
of
been
indicated
clearly
66
2(l).
Article
was
"Everyone
was
440
in
status"
of
proponent
(Tomuschat
See also
aliens
on Mauritius).
the
under
HRC's
the
Lri. b
class"70
the
and
Socialist
Notwithstanding
that
the
one
form
have
on
very
nature
the
least
terms
70
71
Covenant
of
legal
occasions
of
certain
of
the
See e. g.,
in
Party"71
Rumania.
example,
its
jurisprudence
to
the
the
part
assumes
or
some
no
primacy
political
raised
order,
doubts
some
a constitutional
aspects
Covenant.
of
the
72
for
countries,
6.18
at
"Communist
447
or
it
of
are
A few
SR 131 pr. 37
on
Committee
to
as
any
members
the
or
regime
with
compliance
examples
(Bouziri
of
whether
political
in
effect
will
suffice
on Bulgaria).
See e. g.,
SR 108 pr. 46 (Vincent-Evans
on USSR)
SR 109 pr. 57
1
(Tomuschat
Jhabvala,
and
USSR).
n.
on
(1985),
that
"[lit
above,
that,
comments
would "appear
discrimination
in
favour
the
political
respective
of
those
communist
parties,
against
and
correspondingly
holding
is
different
a
given
views,
political
(referring
foundation
in these
constitutional
countries
these
to
the
Soviet-bloc
States).
In
as
much
as
the
constitutional
socio-political
provisions
reflect
be
to
it
clear
these
States,
seem
philosophies
of
would
'formally'
to
for
that
these
to
even
parties
conform,
,
have to radically
the norms of the Covenant,
they
would
their
and their
philosophy
revise
social
and political
",
Cf. The
comment
of
constitutions..
pp. 473-474.
[a]t
"...
times
Graefrath,
are made
attempts
n. l above,
to suggest
that
the covenant
made the
which
was a treaty
binding
freedoms
on its
capitalist
model
of fundamental
denies
interpretation
the
Such
states
parties.
an
on the
and borders
universal
character
of the Covenant
that
to a
the
agreed
absurd
states
assumption
socialist
to
treaty
the
the
socialist
of
amounting
abandonment
Of Human
Comparative
Protection
system",
p. 6. Cf. R. Falk,
Capitalist
Rights
In
Socialist
Third
World
and
1 Univ. HR (1979)
Countries,
pp. 3-29.
72
See the consideration
in SR 133,
report
of its
136,137
and 140.
to
indicate
their
how
known.
views
During
Graefrath
far
73
consideration
an
authority
attitude
fit
seen
report
the
to
make
Chile74
of
had
Committee
Mr.
from
come
existence
was based on the
democratic
rights
of the Chilean
very
was
generally
HRC, including
the
of
members
the
75
people".
That
whose
of
elimination
the
of
now before
report
have
that,
commented
"The
HRC members
by
echoed
Mr. Opsahl,
the
other
suggested
who
that,
"The
Committee
should
dictatorships
examining
declared
that
fundamental
needed
was
not
Governments
6.19
HRC's
the
Islamic
reality
and
conscious
violations
in
the
as,
the
situation
in
political
rights"
attempt
to
cover
fundamental
or
rights...
conforming
to
1979
to
the
reflect
the
Iran
regarding
and,
"[C]onstituted
rights
of
to
Iranian
the
to
gross
40 but
Subsequent
submitted
the
was
example
Iran.
"[F]ailing
human
What
pertinent
February
up
restricted
Article
76
25".
Article
of
pretexts
various
political
reports77
regime
of
accept
case
Shah's
of
civil
the
revolution
denounced
the
not
and
when
conciliatory
on
interesting
is
too
which
to
conforming
approach
authorities
by
and
reports
A particularly
the
did
they
civil
be
not
and
and
status
an
HRC
the
of
(sic)
widespread
individual
73
See e. g.,
SR 283 pr. 25 Sadi on Mali)
and SR 345
States.
pr. 19 (Tomuschat
one party
on Rwanda) concerning
74
Docs. CCPR/C/1/Add.
25 and 40.
75
76
SR 128
pr. 2.
"[T]he
SR 129
burden
States
pr. 51.
was
on
to show that
the form of government
they
parties
adopted
to
the
was
not
an
obstacle
those
enforcement
of
important
(of
provisions
the
SR 283 pr. 25
covenant]",
(Opsahl
on Mali).
77
See Docs. CCPR/C/Add. 16 and 26 and Corr. l.
78
freedoms".
The
Constitution
new
constituent
in
the
the
articles
with
the
doubt
that
two
this
at
was
any
that
the
Covenant
81
to
rule
82
obligations.
importance
for
thirty
78
79
80
81
ensuring
and
SR 149 prs.
See
(Tomuschat).
some
concern
if
that
of
the.
the
effect
of
event
raised
members
encountered
with
conformity
its
modern
with
either
of
are
of
the
totally
international
the
greatest
Covenant
or
as
up
partially
26-28.
pr. 4.
See SR 366
See
are
number
and
to
in
the
Koran
SR 368.
SR 364
82
questions
implementation
countries
be
view
inherent
suggested
was
prevail
These
the
it
was
should
difficulties
law
of
and
the
no
the
of
there
it
generally
in
a theocracy
Covenant,
should
the
was
no
prevail
80
conflict".
expressed
there
be
would
in
were
of
conformity
could
Islam
teachings
presumption
More
as
the
statement
there
question
that
the
of
law
of
many
in
there
HRC members
of
between
principles
conflict.
sets
the
to
although
were
of
the
of
One representative
Islam,
tenets
believed
contradiction
Covenant
a
be
made
extensively
that
emphacize
of
In
principles
79
would
introducing
representatives
referring
the
the
number
they
expressed
to
of
the
40.
general
and
once
for
elections
report
Article
new Constitution.
that
While
new
Iranian
teachings
whenever
and
the
that,
stated
bound
"He felt
then
drafted
with
the
that
promised
held
State
of.
provisions
to
been
conformity
Islamic
Iranian
the
had
report
indicating
new
statements
by
authorities
assembly
submitted
that
new
pr.
SR 364
For reply
10.
(Opsahl),
pr. 55
see SR 368.
SR
366
pr. 10
CH. 6
Islamic83
the
first
the
it
has
country
to
and
in
situation
issues
of
Iran
interpreted
the
status
may
of
women,
Kingdom
the
substance
by
protected
Kingdom.
It
confer
He agreed
had
considered
that
Kingdom,
Covenant
before
tribunals
agencies.
In
absence
provisions
designed
83
in
under
to
C. Humana,
curtail
World
of
the
highly
probable
which
such
Human
of
would
force
discharge
their
2,
States
to
respect
even
the
the
constitutional
Parliament
of
Act
could
Rights
in
administrative
any
rights
he
of
provisions
and
an
as
Covenant,
possible,
of
of
States
the
the
to
that
Article
be
United
the
legal
principle
in
entirely
advisable
However,
in
should
invoke
to
the
character
was not
the
recognized
it
not
been
have
the
and
has
rules
how they
undertaken,
rights
United
legal
obligations.
the
all
as
system
was
Covenant
the
Covenant
decide
to
it
that
therefore
the
international
parties
Islam",
tolerance
fragmentary
domestic
would
law.
free
were
of
the
upon
statutory
rights
a number
are
of
constitutional
criticism,
escaped
"In view of the rather
he concluded
case law,
that
there
religious
85
criminals.
United
The
that
of
84
(1948).
human
the
"teachings
the
basis
Rights
over
suggest
which
of
punishment
Human
become
by Iran,
of
applied
and the provisions
be in conflict,
for
example,
as regards
and
ICCPR
Of
has
Iran
philosophical
concern
might
to
as
the
the
question
international
that
reported
Declaration
Universal
Moreover,
6.20
been
450
Guide,
be
opposed,
p. 5
(2d,
1986).
84
See
International
(1982).
Islam
85
Ibid.;
ch. 1,
pr. 1.34
above.
Commission
Jurists,
of
Humana,
n. 83 above,
Generally
Human Rights
p. 131.
see
In
CH. b
it
would
to
prevent
their
doubts
to
as
the
membership
2 (1)
Articles
of
it
87
that
birth.
6.21
the
with
rights
true
and
that
of
there
freedoms.
to
freedoms
recognised
an
"effective
has
been
of
considerations
outline
the
specific
Covenant
and
86
D. J. Harris
Materials,
SR 93 pr.
on
the
on
or
89
the
terms
the
basis
grounds
of
of
.
the
SR
in
of
difference
on
securing
his
have
to
See
pr. 83.
B. Jones,
Civil
and
(2d.,
1985).
ch. 1,
66 (Lallah
on FRG).
to
ina
dealt
generally,
Liberties
See also
schematic
there
was
with:
the
their
of
rights
in
action
and
special
actin
S. H. Bailey,
Cases
and
the
comments
at
(Lallah);
See
SR
69
reply
e. g.,
pr. 3
35,
Doc. CCPR/C/l/Add.
SR 147 prs. 6 (Lallah),
pr. 2;
(Tomuschat),
23 (Graefrath)
replies
and 25 (Sadi);
prs. 15 and 35.
88
See e. g.,
SR 84 pr. 6 (Lallah
on Madagascar).
France).
See
e. g.,
SR
349
pr.
39
the
a civil
kind
any
87
89
have
attention
there
was
between
ordinary
69
and
rights
breadth
of
initiate
the
members
illustrated
remedies
their
who claims
anyone
of
The
violation
a person
88
damages;
Covenant
painstaking
be
for
the
for
of
existence
importance
2.
vividly
nature
theoretical
this
and
did
the
the
violation
with
aspects
remedy
claim
popularis;
severe
element
with
Covenant
depends
article
can
of
Lords
remedy"
considerable
paragraph
the
ultimately
Commensurate
devoted
Of
whatever
respect
enjoyment
existence
terms
practical
situation
periodic
heredity
the
of the
distinction
the
expressed
of
25
and
introduced
(3).
In
members
House
the
of
constituted
Article
of
of
compatibility
the
of
a number
be
should
86
consideration
U. K.
the
of
machinery
curtailment".
during
Similarly,
reports
that
appear
451
(Vincent-Evans
in
22
at
on
Lri.
remedies
individual
and the
initiate
directly
before
the
Covenant,
an
could
the
covenant
tribunal
administrative
court,
for
90
of
appeal;
invoking
proceedings
a
the
to
counter
45L
possibilities
call
and
authority
a law
annulment
of
and
the
or
ran
which
of
one
matter
having
a detrimental
make
debate,
such a claim
without
91
in
him;
there
or
courts
which
any
cases
were
on
effect
in
had
pronouncements
made specific
authorities
other
involving
interpretation
the
based
of
or
on
proceedings
92
,
the
details
legal
bases
the
Covenant;
of
of
human
in
deal
State
to
with
a
competent
authorities
public
violations
rights
between
them;
preventative
as
any
legal
apply
and
what
exercise
appeal
be
could
an
decision
the
one
as
by
would
decision
See e. g.,
91
See
Czechoslovakia),
different
96
was
challenged;
(Dieye
pr. 3
an
administrative
be
body
was being
64
SR
e. g.,
SR 67 pr. 59
an
against
appellate
SR 356
conditioned
in
could
cases
what
95
in what circumstances
statute;
appeal
the
restrictions
and
94
remedies;
out
individual
whose
whereby
limitations
ruled
in
invoked
93
were
proceedings;
did
not
the
remedies
be
Covenant
enforcement
doctrines
of
and
90
well
conflict
of
possibility
the
could
there
the
the
and
from
there
on Uruguay).
(Prado-Vallejo
pr. 57
(Tomuschat
on G. D. R. ).
on
92
(Tomuschat
63
on
64
SR
See
pr.
e. g.,
often
State
In
Czechoslovakia).
representatives
reply
but
to
invoked
is
being
unable
are
ICCPR
the
that
claim
cite
any examples.
93
94
pr. 125
" See
e. g.,
SR
See
Czechoslovakia).
e. g.,
SR
98
(Iraq).
pr.
26
(Mora-Rojas
on
(Koulishev
on
Yugoslavia).
Qc
96
See e. g.,
99
SR 187 pr. 17
pr.
33
(Tomuschat
on Poland).
.,.
free
system
of
legal
profession
legal
were
services
98
detention;
how
authorities
99
taken;
were
loss
of
in
various
the
of
case
More
of
specific
prompted
Ombudsmen,
evidence,
examination
general
raising
103
of
claim
and
other
called
for
in
concerned.
97
98
99
or
State
to
Uruguay).
especially
part.
the
of
nature
of
Optional
the
or
on Bulgaria).
See e. g.,
SR 187 pr. 25
(Lallah
on Poland).
See e. g.,
SR 109 pr. 30
(Hanga
See e. g.,
SR 353 pr. 28
See e. g.,
SR 69 pr. 30
See
e. g.,
SR
355
(Hanga
parties
on USSR).
on
(Hanga
on
See
also
"Act
the
USSR);
SR 430
SR 69
Canada);
441
SR
pr. 23
Government"
of
(Tomuschat
on Guyana).
(Tarnopolsky
on U. K. ).
pr. 29
the
remedies
whether
party,
the
the
violation,
(Opsahl
pr. 30
of
role
obtained
under
the
101
have
SR 132 pr. 30
See e. g.,
SR 205 pr. 47
(Tarnopolsky
U. K. ).
pr. 30
on
(Tomuschat
on France
concerning
theory).
104
and
cases
101
103
effectiveness
accountability
organs,
were
example,
See e. g.,
See e. g.,
SR 109
(Tomuschat
on Peru).
102
and
illegally
rights
the
granted
100
pr. 47
of
for
as
substantive
individual
been
such
human
of
length
official's
of
concerning
police
had
104
matters
formal
principles
Protocol
of
the
considerations
exclusion
the
average
official
the
particular
by
available
a public
on
the
was
with
available,
100
the
moral;
against
insolvency
the
the
remedies
earnings,
and
the
102
dealt
were
was
Ja
what
qualifications
its
services
and were
in prison
in
or held
damages
of
remedy
a civil
persons
cases
97
assistance;
used
and what
types
indirect,
and
people
many
It
everyone,
to
different
different
to
open
available
such
time
aid
how many
required,
M-
(Prado-Vallejo
on
CH. 6
6.22
importance
Considerable
determination
of
administrative,
by the
for
legislative
legal
terms
tenure
of
or
to
the
attached
"coi-petent
judicial,
other
authorities
State".
the
of
the
In
provided
matters
for
the
the
assessing
have
raised
election
of
and
judiciary
the
when
particularly
is
for
there
an element
of popular
example,
election,
105
in
Courts
Comrades
the
U. S. S. R.,
Self-Management
106
in
Yugoslavia.
is
how
Courts
frequently
It
asked
independence
judicial
and
and impartiality
ensured
are
107
influence
Similar-questions
administrative
resisted.
have been raised
in the consideration
of the provisions
108
14 ICCPR.
of Article
6.23
A consistent
been
that
be
for
aware
been
to
105
CCPR/C/l/Add.
106
Doc.
See
CCPR/C/l/
107
SR 84 pr.
on USSR).
108
109
their
Thus
terms
national
and
70
(Lallah).
pr.
99
23.
See e. g.,
3 (Lallah
pr.
15
States
SR 67 pr. 13
on Madagascar),
their
Covenant109
the
translate
For
languages,
details
For
(Tarnopolsky
SR 109
see
details
must
have
parties
concerning
minority
(Hanga).
they
rights
information,
rights
SR 109
22.
of
has
deliberations
information
the
the
SR
Add.
exercise
provide
human
See
HRC's
existence.
publicize
into
the
of
to
people
to
disseminate
Covenant
theme
their
of
requested
efforts
of
been
by,
of
such
authorities
inter
alia,
provisions
existence
included,
the
has
remedies
system
454
to
the
110
Doc.
see
on G. D. R. ),
(Lallah
pr. 70
e. g.
See
e. g.,
SR
355
pr.
18
(Prado-Vallejo
on
(Vincent-Evans
on
Uruguay).
110
Yugoslavia).
SR
98
pr. 46
CH. b
improve
of
literacy
rates
implementation
the
rights
their
that
all
be
should
has
party
taken
its
to
345
the
available
as
to
co-operation
has
party
to
its
such
See e. g.,
pr. 37 (Graefrath
this
end,
in
all
the
publicity
with
the
its
the
example,
SR 421 pr. 6
on Rwanda).
(Hanga
by
State
report
HRC has
be
with
is
It
the
112
to
Committee"
publicized
should
training.
give
for
To
concerned
their
also
and
State
steps
and
authorities
of
citizens
a practice,
113
G. D. R.
State
the
the
publicized
the
part
know
authorities
Covenant.
the
be
are
which
obligations
under
that,
should
(and
Covenant
may be)
judicial
and
the
also
State
112
case
familiarize
contents
party's
111
of
assumed
desirable
the
the
should
languages
of
official
commend
the
administrative
aware
human
national
HRC stated
the
under
as
by
monitoring
individuals
that
Covenant
the
Where
Comment
rights
the
encourage
Covenant
the
of
Protocol,
Optional
and
and
In a General
groups.
important
is very
"It
what
it
ill
455
been
Canada,
and
quick
the
on Nicaragua),
made
to
FRG
SR
SR 345
G. C. 3(13),
pr. 2. See also
n. 2 above,
has
The
HRCion
(Vincent-Evans
27
Rwanda).
on
pr.
the texts
to publish
of
called
on governments
repeatedly
O. P. in as many languages
the two Covenants
as
and the
in
distribute
to
them
possible
as
possible
and
as widely
See e. g.,
their
territories.
HRCion Resn. 1986/17,
pr. 17,
Supp. 2,
Report
HRCion,
ECOSOC, O. R.,
on 42nd session,
(1986).
p. 61,
113
See Tomuschat,
n. 1 above,
p. 60 (1984-85).
_L
2 Under
Article
6.24
of
The
views
Protocol114
of
2 (1)
Article
6.25
could
"In
this
2 of
The
the
with
author
found
Penal
Covenant",
person
guilty
Code
that
claimed
investigation
115
116
117
118
119
which
Optional
of
the
with
115
O. P.
the
A
of
violation
for
briefly
various
as
noted
2. ''
article
of
in
Santullo
been
"it
that
stating
after
not
in
view
of
a violation
continued,
Committee
notes
it
that
positive
had
that
obligation
118
In S. S.
by
on
v.
State
the
to
ensured
required
protection
117
protection.
the
article
State
119
Norway,
the
him
afforded
not
interference
and
against
attacks
been
had
his
The
author
property.
that
and
of
defending
repeated
had
Norway
violations
had
HRC's
had
show
the
protection
114
in
to
argued
his
the
view
failed
"ensure"
sufficient
noted
the
suggests
to
party
HRC's
concerned
the
view
scope
there
respect
has
person
the
under
only
potential
that
the
party
decisions
dealing
rights
Uruguay116
find
7",
article
those
on
chapters
therefore
already
v.
not
of
number
.%
We have
(Valcada)
Many
allegations
of
inadmissible
declared
been
the
substantial
the
are
of
chapter
the
of
and
reasons
indicators
O. P.
particular
proportion
2 have
in
raised
the
in
or
application
article
in
noted
Protocol.
the
under
communications
high
been
2 has
Article
and
Optional
Y)V
.v
various
himself
for
requests
gone
unheeded
of
provisions
against
attacks.
protection
by
the
and
police.
the
He
proper
The
chs. 7-12
below.
above.
pr. 12.
and
p. 30.
above
and
ch. 8 below
on article
6.
Ln.
communication
domestic
exhaust
prescribe
generally
been
will
the
with
rights
protected.
obligation
The
of
be
The
was
State
positively
family
life
facts.
on the
In
the
the
Covenant.
and
126
"the
legal
State
can
country
120
121
122
123
124
Ibid.,
S. D.
Ibid.,
under
HRC expressed
protection
to
afford
and
"family"
State
depend
Doc. A/40/40
See
16(32)
Comment
March 1988).
125
which
the
The
Women Case125
the
or
by
that
family
on
different
p. 217.
to
the
ensure"
an
v.
17,
article
as
dnd
negative
by
obligation
the
of
conditions
not
applicable
HRC considered
from
was entitled
the
23
of
article
the
that,
opinion
measures
the
the
obligations
Canada in A. S.
17 was
article
It
positive
re-establish
123
impaired".
that
that
mean
to
view
to
to
121
".
and
alia,
refer
not
protection
primarily
not
Mauritian
protection
society
inter
already
the
124
raised
also
argued,
interpreted
could
HRC took
question
HRC
"does
does
this
to
the
protection...
preventative
"respect
to
the Covenant
122
Canada
Canada.
therefore
v.
failure
Covenant,
that
require
under
"should
Canada120
the
above
never
comply
C. F.
preventative
submitted
Covenant
for
that
view
45/
inadmissible
In
remedies.
the
expressed
has
declared
was
vary
See ch. 4,
or a
a society
from country
to
social,
pr. 4.103
economic,
above.
pr. 6.2.
p. 27.
See ch. 4,
pr. 4.59
above.
pr. 5.1.
See
also
ch. 4,
above.
pr. 4.59
17,
Doc. CCPR/C/21/Add.
on article
Aumeeruddy-Cziffra
And
Others
v.
Doc. A/36/40
p. 134. See ch. 4, pr. 4.75
above.
126
For the text
23 see Apx. I
of article
General
6 (31
Mauritius,
below.
CH. 6
and
127
political
traditions".
The
view
than
rather
Covenant.
6.26
For
State
"to
to,
applies
subject
to
confined
to
its
Covenant
nationals
also
was
being
in
Office
H. v. d. P.
of
procedures
within
the
brought
Netherlands.
consider
to
the
Netherlands
127
128
the
of
Covenant
Covenant.
129
130
131
132
He
the
issue
and
in
Sweden)
p. 134,
pr. 9.2
(b)
pr. 4.67
See ch. 4,
prs.
4.82-4.85
See ch. 4,
prs.
4.66,4.82-4.86
the
of
the
to
competent
States
parties
the
to
parties
also
the
an
Luxembourg,
Italy,
He
appeals
against
five
that
See ch. 4,
p. 185.
European
national
the
O. P.
1.
(ii)
Doc. A/42/40
author
constitute
HRC was
the
were
was
the
that
not
a
basis
the
of
in
communication
that
the
Germany.
West
and
did
author,
not
We have
fhe
of
discrimination
E. P. O.
(France,
Doc. A/36/40
is
the
with
Munich,
E. P. O.
the
the
on
E. P. O.
it
129
jurisdiction
132
The
of
servant
of
claimed
case
and
jurisdiction",
Netherlands.
v.
The
remedy.
[the]
article
territory
concerned.
to
victim
practices
Netherlands,
State
(E. P. O. ) based
promotion
effective
its
Therefore,
civil
be
to
claimed
23
article
under
within
"subject
131
The
international
an
and
territorial
applicability
130
O. P.
Similarly
we examined
concerned.
raised
Patent
the
of
State
to
specific
obligation
the
of
the
and
requirement
the
the
party
individuals
all
jurisdiction".
considered
also
be
to
conditions
general
statement
concerning
permissible
by the
level
demanded
the
of protection
in
128
variations
cultural
appear
would
458
immedicacy
2
the
of
the
of
above.
and
ch. 6,
pr. 6.7
above.
above.
CH. 6
and
that
the,
"E. P. O.,
the
Contracting
States,
Dutch
author
had
"The
author's
no
claim
took
exercising
the
O. P.
to
common
body
the
under
body
public
constitutes
133
The
HRC
authority".
public
the
through
459
that
view
basis
the
on
that,
of
policies
cannot,
-in any
the jurisdiction
way,
State
the
to
party
Political
134
thereto"
.
approach
of the
application
6.27
Communities.
the
Many
the
already
that
in
law
noted
133
134
135
the
equal
2 but
of
not
constitutes
Ibid.,
pr. 2.3.
Ibid.,
pr. 3.2.
an
an
the
raised
article
and
of
question
(equality
26
of
the
law).
raise
of
merely
of
aspect
protection
of
have
communications
articles
Civil
EUCM in
Council
the
other
Protocol
the
the
of
within
any
on
Optional
the
that
jurisprudence
26 does
article
article
and
of
Covenant
communications
between
relationship
before
and
of
which
coming
or
(distinction)
those
of
as
Netherlands
a decision
135
non-discrimination
2(1).
construed
International
number
recruitment
organization,
HRC parallels
A considerable
the
the
Rights
concerning
European
be
of
and
The
international
an
the
concern
grievances...
the
HRC to
duplicate
independent
the
We have
the
effect
guarantees
principle
of
/ Their
Member
Communities
C. F. D. T v.
European
A. 235/56,2
See also
231.
D. & R.
A. 8030/77,13
States,
the
the
responsibility
YBECHR 256 at 288-304,
concerning
(an
Court
Restitution
for
Germany
Supreme
West
the
of
in
Germany.
The
international
West
tribunal)
international
jurisdiction
State
an
over
of
a national
in
has
the
U. K.
been
considered
recently
organization
Tin
Council.
following
International
the
of the
collapse
decisions
Watson
& Co.
For
the
most
recent
see Maclaine
Law
Ltd
Department
Times
Trade
Industry,
v.
of
and
28th
April
1988
(C. A. );
Tin
Report,
International
In re
(C. A. );
Times
1988
Council,
Law
29th
Report,
April
Watson
Council,
Maclaine
Tin
& Co.
International
v.
Times
Law Report,
4th May 1988
(C. A. ).
CH. 6
protection.
equal
an
136
important
prohibits
and freedoms
The
in
on
of
both
apply
of
"Where
enjoyment
to
the
securing
on
rights.
In
requires
in
23,
it
follows
not
sex".
rights
and
equal
and in
Mauritian
that,
article
such
the
the
Covenant
that
only
rights
of
the
provisions
is
to
say
which
of
HRC stated
as
of
ECHR
the
protection
basis
14
represents
non-discrimination
restrictions
Women Case138
therefore
article
in the
137
ECHR.
principles
protection
respect
the
Covenant
The
advance
discrimination
460
protection
must
discriminatory,
139
for
substantial
from
those
be equal,
that
the
on
example
Similarly,
"Where
restrictions
by
guaranteed
without
discrimination
Whether
the
breach
decisive
in
rights
right
this
discrimination.
to
note
in
distinction
victims
rights.
No
difference
136
137
139
be
that
See ch. 4,
See Van
is
sex
their
4.55-4.58
and
Van
the
therefore,
2 (ii)
adverse
an
the
affecting
made,
enjoyment
justification
of
without
position
is
not
enjoyment
sufficient,
of
one
of
their
for
this
must
then
2(1)
and
above.
Hoof,
above.
pr. 9.2(b)
is
secured
present
on
prs.
Dijk
See n. 125
Ibid.,
the
in
is
it
would
sufficient
has been given.
The Committee
is a violation
there
of articles
pp. 294-306.
138
must
based
alleged
find
It
sex.
in
be
of
isolation,
in
done
be
to
ground
itself
in
regarded
Here
that
the
respect.
which
has
this
on
restriction
that
of
Covenant,
the
right
on
placed
are
2.
pp. 386-398;
Fawcett,
CH. 6
17(1).
6.28
in
rights
finding
2,3
in
read
when
of
26 of
and
to
examine
in
articles
the
and
(4)
the
basis
were
women.
6.29
a violation
of
general
the
26 of
and
that
view
Covenant
of
discriminatory
143
The
differentiation
"A
that
the
indicated
will
differentiation
constitute
objective
within
In
12,17
light
of
Covenant
the
23
and
it
HRC found
non-Indian
the
articles
and
unnecessary
discrimination
against
opinion
an individual
In
(1)
articles
2(1),
3,23
had
been
breached
also
between
as
men
distinction
when
on
Act
Indian
the
of
provisions
and
or
discrimination,
does
discrimination
144
26.
alleged
loss
of
married
married
27 of
based
criteria
also
L's
article
particularly
have
HRC
article
she
status.
the
26.142
the
some
who
provisions
and
took
of
Covenant
2,3
Mr. Bouziri
when
Indian
the
was
Indian
man
context
sex
concerning
his
the
of
with
Canada
an
Indian
lose
not
v.
as
status
141
An
and
non-Indian.
women did
its
Lovelace
of
case
conjunction
basis
on the
Discrimination
the
in
Covenant,
the
140
of
461
not
the
on
and
reasonable
amount
meaning
to
prohibited
article
of
140
HRC
the
8.
(i)
Similarly
(b)
2
9.2
Ibid.,
pr.
family
the
found
in
the
the
of
variation
protection
be
to
basis
23
sex
the
of
under
article
on
discriminatory
and
Mauritian
women
to
with
respect
ibid.,
justified
be
by
requirements.,
cannot
security
by
Mauritius
(b)
(ii)
taken
2
3.
9.2
For
the
pr.
action
see pr. 4.132
above.
141
142
143
144
pr.
it
p. 166.
Doc. A/36/40
13.2-19.
Ibid.,
prs.
Ibid.,
p. 175.
Broeks
Netherlands,
v.
13. Under the ECHR a distinction
has no objective
and reasonable
Doc. A/42/40
is discriminatory
justification,
(Footnote
p. 139,
if
that
Continued)
CH. 6
As
we
social
be
basis
in
noted
law
security
sex146
based
criteria".
reasonable
the
6.30
it
147
because
Covenant
in
same criteria
the
Communications
discrimination
149
status,
to
of
political
that
the
did
not
26 of
on
article
"objective
the
HRC will
apply
of
article
been
basis
found
sense
Presumable
the
on
status
base
was
context
the
it
marital
the
Dutch
on
differentiation
the
third
have
on
cases
discriminatory
the
on
in
discrimination
constitute
the
in
the
of
therefore
while
differentiation
two
HRC found
the
and
unreasonable
of
in
ch. 4145
462
2(1).
alleging
submitted
of
opinion,
sex,
150
and
148
marital
151
race,
(Footnote
Continued)
is,
if
it
does not pursue
there
aim or if
a legitimate
is
not
a reasonable
of
proportionality
relationship
between
See Van
the means employed
aim sought.
and the
Dijk
decision
For a recent
on
and Van Hoof,
n. 24 above.
14 see Rasmussen
7 E. H. R, R. p. 371.
article
v. Denmark,
145
See
ch. 4,
prs.
4.55-4.58
above.
146
139,
A/42/40
Broeks
Doc.
p.
Netherlands,
v.
Doc. A/42/40
Zwaan-de
Netherlands,
Vries
prs. 14-15;
v.
See ch. 4, prs. 4.56-4.58
above.
p. 160, prs. 14-15.
147
151,
42/40
A.
Doc.
p.
Danning
Netherlands,
v.
pr. 14. See ch. 4, prs. 4.56-4.58
above.
148
Broeks
Mauritian
v.
Women Case,
n. 125 above;
Netherlands,
Vries
146
Netherlands,
Zwaan-de
v.
n.
above;
n. 146 above.
149
150
Danning
v.
Netherlands,
n. 147
above.
Doc. A/36/40
Wienberger
Weisz v. Uruguay,
p. 114.
"In
however,
The HRC stated
that,
may a person
no case,
be subjected
because
to sanctions
of his
or her
solely
(arts.
ibid.,
2(1)
opinion
political
pr. 15.
and 26),
151
Pinkey
Doc. A/37/40
v. Canada,
p. 101, pr. 26. The
found
it
HRC
that
did
have
verifiable
any
not
information
before
it
to substantiate
P's allegations
of
treatment.
wrongful
CH. 6
152
nationality,
minority154
and
2(2).
been
membership
because
the
of
background
national
authors
for
and
the
of
Romany
ethnic,
religious
155
reasons.
political
2(2).
Article
6.31
and
age153
463
have
No communications
When
the
a violation
occasions
legislation
HRC expresses
of
stated
as
specifically
that
well
the
the
view
Covenant
it
State
party
the
as
grating
raised
has
article
that
there
has
on
a number
of
should
remedies
adjust
to
its
the
152
See Wight
Doc. A/39/40
p. 171. The
v. Madagascar,
HRC observed
it
information
to
that
the
was
available
insufficient
to
W was arrested
and charged
show that
because
and
primarily
South
African
nationality
of his
ibid.,
South
the
African
his
aircraft,
nationality
of
Doc. A/42/40
p. 180
F. G. G. v. Netherlands,
pr. 16. See also
foreign
(alleged
discrimination
in
dismissal
of
domestic
Inadmissible
for
failure
to exhaust
sailors):
185
A/42/40
H.
d.
DOC.
p.
P.
Netherlands,
remedies;
v.
v.
(alleged
discrimination
see
in
policies),
promotion
pr. 6.26 above.
153
240,
A/39/40
Doc.
p.
L. T. K.
Finland,
V.
limit
to
the
age
an
concerning
of
application
from
T.
K.
L.
alternative
service
prevented
which
service.
alternative
substituting
military
with
service
inadmissible
declared
as
not
The
communication
was
No
issue
Covenant.
specific
the
raising
an
under
discrimination.
reference
was made to the alleged
154
168.
E. H.
A/41/40
Doc.
E. H.
Finland,
p.
v.
imposed
her
been
had
that
on
claimed
a heavier
sentence
in
for
Finnish
that
woman
offence
a criminal
another
on
inadmissible
the communication
a similar
case.
was held
in
facts
did
as
examination
an
reveal
any
not
substantiation
of the authors
claim.
155
K. L.
Declared
Denmark,
S. D.
V.
p. 24.
inadmissible
the
on
of
ground
of
non-substantiation
allegations.
CH. 6
individual
victims
the
to
note
in
which
for
the
although
being
State
the
HRC, "believes
and
Finland157
v.
compulsory
ethics
violated
HRC
the
interesting
also
that
classes
18(4)
the
took
the
of
that
view
difficulties
that
party
admitted
in
to
regard
experienced
is
It
Hartikainen
alleged
on religion
158
There
Covenant.
the
HRC in
the
of
authors
children
156
concerned.
view
464
were
teaching
existing
the
plan
that
the
resolve
compatibly
the
laws"
Here
the
.
HRC displays
in
the
application
of
the
difficulties
effect
to
Article
6.32
the
faced
160
by
to
no
reason
to
accomplished,
18(4)
article
degree
of
existing
flexibility
of
understanding
in
giving
parties
an
and
States
2(3).
In
its
consistently
remedy
Covenant,
of
Covenant
the
taken
framework
the
sensible
a
of
be
requirements
within
being
sees
cannot
the
Covenant,
159
it
and
this
with
is
action
difficulties
that
conclude
of
appropriate
in
views
under
the
stressed
terms
of
the
See e. g. Fals
pr. 15; Mauritian
p. 193,
pr. 11.
157
158
159
Doc. A/36/40
For
the
text
necessary
an
to
HRC
effective
remedy
S. D.
the
article
p. 74.
18(4)
see
Apx. I
below.
decision
10.5.
Cf.
the
Ibid.,
of
recent
pr.
Angelini
in A. 10491/83,
EUCM on religious
education
10 E. H. R. R. (1988)
Sweden,
p. 123-129.
160
have
Doc. A/37/40
Colombia,
Borda
v.
Doc. A/36/40
p. 134,
Women case,
p. 147;
of
of
requirement
measures
156
the,
O. P.
the
the
v.
The reports
to the HRC under
article
submitted
in
inter
40 should
"progress
the
the
cover,
made
alia,
(article
40(1))
of the
rights
enjoyment"
and "indicate
factors
difficulties,
if
the
the
and
affecting
any,
implementation
40(2).
See
(article
the
Covenant",
of
ch. 3 above.
CH. 6
violations
and
violations
do
of
the
the
take
not
HRC to
kind
have
to
the
in
domestic
of
in
the
under
in
required
been
that
ensure
161
future.
The
the
exhaustion
remedies
of
to
steps
occur
465
similar
approach
remedies
event
of
and
violation
chapter
4.162
The
to have followed
the jurisprudence
HRC appears
"claim"
ECHR in only
to
requiring
a person
been
have
then
that
violated
rather
rights
have
been
before
violated
actually
article
under
the
already
apply.
6.33
An
important
Canada163,
Canada
"Articles
to
The
Ex-Philibert
nine
have
not
2(3).
months
3 of
and
of
whether
to
this
Zaire165
and
found
been
had
they
2
article
must
(3)
can
2(3)
is
S. H. B.
In
V.
their
161
However,
effective
violation
detained
remedy
the
capable
164
own right".
separate
and
of
not
are
submission.
a
relevant
are
articles
they
arrested
no
Covenant
other
in
violation
P had
the
violated,
reply
v.
their
that
that,
been
independent
HRC did
article
2(1-3)
whether
violation.
argued
a determination
Covenant
of
is
question
independent
of
capable
examined
in
of
for
over
under
the
Zaire,
See
V.
Mpandanjila
al.
et
e. g.,
Doc. A/41/40
p. 121, pr. 11.
162
In Boyle
See ch. 4, prs. 4.100-4.116
and
above.
(1986),
the EUCM
A. 9659/82
Rice v. U. K.,
and A. 9658/82,
13 ECHR (the
that
of article
equivalent
article
stated
2(3)
ICCPR) provides
the counterpart
of the requirement
domestic
26
to
article
exhaust
remedies
under
and
Convention
the
the
subsidiary
of
reflects
character
human
the
to
national
system
safeguarding
systems
rights.
163
164
165
Doc. A/42/40
Tbid.,
p. 174.
pr. 5.3.
Doc. A/38/40
p. 197.
Lri.
domestic
law
the
6.34
of
law
2(3)
the
which
covenant
Baritussio
v.
three
the
with
the
if
court
the
HRC expressed
the
in conjunction
violated
The
to
proceedings
detention).
ignored
of
rights
violated
including
view
that
with
article
In
but
article
expressed
2(3)
of
the
enforcement
Covenant
and
the
authorities
of
the
Madagascar170
9(4)
no
of
view
Covenant.
are
the
to
part
v.
take
of
orders
court
the
the
to
lawfulness
threat
Hamel
that
view
article
on
was
not
(right
9(4)
of
he
comply
168
do no more.
had been
2(3)
could
which
2(3)
made
concerned
the
serious
action
her
granting
for
another
did
article
in
article
State.
the
judges
situation
immediate
expressed
been
under
the
the
In
lawyer
authorities
challenge
represents
demand
of
169
judges
articles
remedies.
defence
military
prison
other
detention
her
order,
to
specific
in
of
violations
a decision
B remained
to
representations
informed
that,
for
despite
Although
years.
the
of
related
provide
Uruguay167
release
provisional
4bb
respect
of.
is obviously
complained
Article
in
166
Zaire
of
the
on
171
covenant
other
must
HRC
had
claims
6.35
A more helpful
view
of the HRC on the relationship
for
between
2(3)
providing
article
articles
and other
172
had
is that
in Fanali
Italy
made a
Italy.
remedies
v.
166
articles
167
168
Ibid.,
pr. 8. The HRC also
9 (1)-(4)
and 10 (1) .
Doc. A/37/40
Ibid.,
pr.
found
violations
p. 187.
12.
169
there
that
Ibid.,
pr. 13. The HRC stated
have
to which
B could
court
appealed
competent
her arbitrary
detention.
170
171
172
Doc. A/42/40
Ibid.,
prs.
Doc. A/38/40
of
p. 130.
1,20.
p. 160.
was no
during
CH. 6
to
reservation
review
of
conviction
The
author
argued,
was
nonetheless
had
made no
"unable
the
and
to
provides
and
freedoms,
this
purported
been
not
case
so,
article
besides
which
it
would
general
right
in
article
Presumably
the
providing
same
specific
for
example,
article
the
expulsion
of
of
great
by
tribunal
established
at
173
174
175
176
law"
174
law
of
(article
14).
pr. 13.
See the
the
cases
text
On article
of the EUCT in the
p. 18 (1979).
13
in
for
"rights
176
cited
article
in
to
articles
a fair
and
and
pr.
public
impartial
of
HRC's
a
not
below.
prs. 6.33-6.34
13 see
does
view
10.52
any
in
obligations
and
The
for
175
(procedure
determination
the
the
apply
territory),
the
to
right
of
to
guarantees,
independent
by
specialis
taken
article
the
or
lex
procedural
lawfully
competent,
Ibid.,
For
or
the
a remedy
of
of
the
in
as
itself
an
excluded
Even had
right,
be
the
when
case.
no meaning
173
2(3)t.
remedies
in
is
have
could
persons
effective
is
remedy
a
present
from
true
an
linked
consists
9(4),
charge"
is
is
It
invoked
be
approach
aliens
to
right
is
importance,
hearing
"criminal
it
Thus
Italy
overlook
recognized
purported
14(5),
of
(appeal).
to
that
have
cannot
the
appeal
which
seems
as
which
as in the
a reservation,
of
to
generally
it
to
right
right
2(3)
"shall
and
tribunal).
concerned.
general
one,
his
which
view
violated
But
a higher
to
HRC was
2(3)
are
accessory
suit
this
(right
Covenant
that
alia,
by article
provisions
rights
remedy".
and,
by
he
of
Covenant,
this
sentence
The
share
article
by
the
inter
reservation.
whose
of
confirmed
nature
that
14(5)
article
467
above.
Apx. I.
Cf.
the decision
A, vol. 32,
Series
%-n.
the
answer
of
independent
6.36
In
of
question
whether
li U8
is
2(3)
article
capable
violation.
Costa
Stalla
Uruguay177
V.
the
state
that
party
be no remedy because
S. C. had no right
under
S. C.
be appointed
law
to
domestic
to
post.
a public
because
discriminatory
Act
that
the
was
relevant
argued
being
former
its
that
were
only
was
employees
effect
there
could
to
admitted
the
restore
ideological,
the
public
rights
of
political
arbitrary
regime,
to
be
reinstated
careers
in
the
public
of
HRC took
violations
were
2(3)
"The
The
have
to
the
of
Act
Covenant.
Act
be
a pension.
a measure
of
victims
such
as
and
article
under
can
an invidious
paragraph
Covenant".
communication
remedy
limitation
on
the
one
rights
comprehensible
Doc. A/42/40
below.
Ibid.,
11.
pr.
of
other
in
that
p. 170.
See Apx. I
set
(c)
the
of
under
prohibited
26
article
of
an
providing
the
involved
individuals.
While
the
of
exceptional
victims
light
of
as
or
of
of
25
distinction
terms
aim
to
reference
article
concerned
legitimate
for
the
implementation
1,
the
within
179
remedy.
be
cannot
such
therefore,
with
in
the
2,
effective
179
their
were
as
upon
equality"
as
where
178
resume
was
remedy
Act,
the
regarded
the
177
of
Neither
discrimination
is
facto
Covenant178
the
for
or
de
receive
who
looked
of
terms
article
view
to
enactment
incompatible
as
the
situation
to
and
effective
be
should
implementation
"general
Clearly
an
on
Covenant.
regarded
the
25 of
dismissed
grounds
jobs,
their
the
to
previous
officials
article
entitled
(a)
that
public
of
the
service
view
for
redress
in
been
union
by
reasons
the
had
who
trade
or
purely
The
those
sought
Act
The
service.
HRC
only
a
the
could
Lri.
have
usefully
proportionality
sought
of
the
to
Act
be
should
as necessary
to
the
original
So,
to
not
be
afford
4by
the
stressed
between
the
realised.
means
for
the
but
only
an adequate
the
and
sought
example,
indefinite
of
requirement
opportunity
aim
application
for
so
to
long
remedy
violations.
'
CH. 6
470
APPRAISAL.
6.37
The
it
reports
to
be
to
going
have
approach
In
crucial.
has
been
the
have
they
in
difficulties
comment
general
consideration
importance.
central
discretion
the
States
generally
stressed
on
article
comments
the
HRC have
clearly
parties
"respect
are
obliged
to
take
ensure"
the
rights
and
Close
and
critical
relevant
terms
of
national
organs
as
the
basis.
non-discriminatory
interpretations
the
in
giving
of
the
impressive.
As
the
range
185
regards
fundamental
2
article
180
181
182
183
184
185
to
effect
but
the
possible
the
HRC's
the
and
its
jurisprudence
has
relationship
above.
above.
See prs.
6.12-6.13
See prs.
6.9-6.10,6.14-6.17.
See prs.
6.3,6.6
See prs.
6.21-6.22.
above.
above.
on
and
upon
commented
"effective
remedies
determination
ascertain
Covenant
and
of
Covenant
of
to
determination
184
The HRC
them.
of
function
vital
of
of
formal
no
respect
the
to
Reservations
considered
made
in
competence
acknowledged
been
HRC has
the
although
their
have
to
182
practices
sought
183
States
given
the
the
of
In
the
general
Covenant.
been
have
HRC members
of
genuine
that
the
and
as
180
measures
in
law
national
to
181
other
positive
implementation
practical
immediacy
in
has
have
the
established
attention
Members
Covenant.
Covenant.
and
State
the
sympathetic
the
always
of
parties
in
rights
being
while
implementing
obligation
2 was
article
the
accorded
the
acknowledged
implement
how to
However,
HRC to
the
of
remedies"
consideration
been
has
most
under
concerned
between
has
not
article
O. P.
the
so
much
2
and
CH. 6
26.
The
article
independent
equal
to
the
scope
and
471
interpretation
protection
importance
of
guarantee
of
the
article
adds
Covenant.
26
as
an
considerably
186
a,
186
See prs.
6.27,
and
ch. 4,
prs.
4.56-4.58
above.
CH. 7
1
4 ICCPR.
Article
7.1
4.
ARTICLE
(1)
In
life
time
of
the
of
officially
Covenant
proclaimed,
the
take
may
under
required
provided
that
other
involve
colour,
(2) No
and
2),
emergency
and
strictly
not
public
nation
obligations
their
472
by
such
11
15,16
States
parties
derogating
to
Covenant
to
the
from
of
the
the
present
from
their
the
extent
the
situation,
inconsistent
not
international
laVand
solely
religion
or
social
6,7,8
articles
18
the
on
may
be
is
which
are
under
and
of
exigencies
measures
language,
derogation
existence
present
obligations
discrimination
sex,
the
measures
the
threatens
which
ground
of
with
do
race,
origin.
(paragraphs
made
under
1
this
provision.
For
15 ECHR,
derogation
other
art.
see
provisions
27
AMR,
30
art.
ESC.
there
Note
that
no
art.
are
derogation
in
On the
AFR.
provisions
the
ICESCR
and the
drafting
35-47;
4
V,
of
A/2929,
article
prs.
ch.
see
A/5655,
On
'Guide',
Bossuyt,
prs. 37-56;
pp. 81-102.
derogation
To
and
public
emergencies
see T. Buergenthal,
Respect
And
And
Obligations
To
Ensure
State
(ed. ),
The
Permissible
Derogations,
in
L. Henkin
Civil
And
International
On
Bill
Covenant
Of Rights
The
Buzan,
(1981);
B.
Political
Rights,
78-86
p. 72
pp.
at
Problem
People,
Security
States
And Fear
National
The
Human
In
International
(1983);
A. Carty,
Relations,
And
Rights
In A State
The I. L. A. Approach
Of Exception:
),
(eds.
Human
The
in
Third
World,
T. Campbell
al
et
(1986);
60-79,
Rights
From
Rhetoric
Reality,
To
pp.
And
E. I. Daes,
The
To The Community
Individual's
Duties
Freedoms
The Limitations
On Human Rights
And Fundamental
3,
Part.
U. D. H. R.,
Under
Article
29
Of
The
L. C. Green,
(1983);
2/432.
Doc. E/CN. 4. /Sub.
Rev. 2,
Situations,
16
Derogations
Of Human Rights
In Emergency
(1978)
Derogations
From
Can. YIL
J. Hartman,
pp. 92-115;
22 Harv. ILJ
Human Rights
Treaties
In Public
Emergencies,
(1981)
For
J. Hartman,
Paper
Working
The
pp. 1-52;
Committee
(1985)
Of
Experts
4,7
On
HRQ
Article
R. Higgins,
Derogations
Human
Under
Rights
pp. 89-131;
48
Treaties,
(1978)
BYIL
' International
pp. 281-320;
Commission
Of
Jurists,
States
Their
Of
Emergency
Impact
On
Human
Rights,
(1983);
Law
International
Association,
Human
Rights
Of
Emergency:
In
A
State
(Footnote
Continued)
CH. 7
(3)
State
Any
itself
inform
Party
of
the
the
other
through
United
right
of
of
and
the
Parties
intermediary,
on
of
the
to
the
provisions
by which
reasons
date
be
on
immediately
shall
the
availing
Covenant,
present
Secretary-General
the
shall
communication
Covenant
present
derogation
of
States
Nations,
further
the
intermediary
the
derogated
to
473
from
it
which
was
it
the
has
A
actuated.
the
through
made,
which
of
it
same
terminates
such
derogation.
Introduction.
7.2
Article
ICCPR.
parties
public
Its
in
is
self-evidently
terms
the
most
emergencies.
a key
regulate
the
critical
Experience
of
measures
human
of
provision
cpen
rights
demonstrates
to
the
states
situations,
that
such
(Footnote
Continued)
Siege,
of
States
Proclamation
Law,
Of Emergency,
Martial
Regional
Of
Report
Study
Sub-Committee
On
The
of
A.
L.
I.
Rights,
Human
Problems
Of
In
The
Implementation
Ibid,
151-167;
Report,
59th
89-100
Conference,
and pp.
pp.
of Human Rights:
Regional
Problems
In The Implementation
60th
A.,
L.
I.
Minimum
Standards
In A State
Of Exception,
A.,
L.
I.
113-135;
Conference,
pp.
pp. 88-100
and
Minimum
Committee,
Law
Of
Human
Rights
Enforcement
61st
Report,
A.
L.
I.
Of Exception,
In
A State
Standards
the
below
to
as
(Paris),
56-96,
Conference
referred
pp.
Rights,
Human
of
"Paris
I.
L.
A.,
Enforcement
Standards";
(Seoul,
Conference,
108-197,62nd
Report,
I. L. A.
pp.
United
The
In
Law Making
Human
Rights
1986);
T. Meron,
In
Rights
Human
(1986);
86-100,
T.
Meron,
Nations,
pp.
International
Their
Of
Internal
Strife;
Times
Of
Suspension
The
(1987);
R.
Norris,
Protection,
D. O'Donnell,
(1980)
30 Am. U. L. R.
pp. 189-223;
Guarantees,
(1978)
52-60;
C.
J.
21
I.
pp.
Exception,
Rev.
Of
States
Effects
On
And Their
Of Siege
Or Emergency
States
Ibid.,
Of
The
Recommendations
And
Observations
Rights:
Human
(August
1983);
93
2/NGO
4/Sub.
E/CN.
Doc.
N.
U.
ICJ,
Rights
Human
For
Of The Implications
Study
N. Questiaux,
As
Known
Situations
Concerning
Developments
Of
Recent
2/1982/15
Or
Emergency,
Doc. E/CN. 4/Sub.
Siege
of
States
Law Of Human
P. Sieghart,
The International
1982);
(July
Of
State
(1983);
The
110-118
Singhvi,
A.
M.
Rights,
pp.
(1985)
25
Ind. JIL
Law
The
Of
Nations,
And
Emergency
Laid
P.
Stein,
Derogations
Guarantees
From
554-575;
pp.
(ed. ),
in
Rights
Instruments,
I. Maier,
Human
In
Down
And
Limits
Of
Human
Rights
In
Europe
Protection
of
"Security
(1982)
Effects,
Symposium
pp. 123-133;
on
(Footnote
Continued)
CH. 7
situations
are
commonly
2
The
474
be
characterised
human
severe
the
HRC is
violations.
then
practice
of
in
it
is an
Firstly,
a number of respects.
significant
indicator
important
its
HRC envisages
of how the
role
because
the
reporting
procedure
under
a
provision
rights
derogation
concerning
international
of
scope
acutely
implementation
their
relationship
3
Secondly,
sovereignty.
effective
the
problems
Nations.
analysis
terms
years
particularly
exists
some
which
in
(Footnote
of
recent
now
analyses
used
states
have
have
of
state
given
4.5
article
much
This
and
State
of
a
State
to
its
human
rights
There
law,
case
of
of
of
human
in
attention
by
engendered
on
effects
test
an acid
implementation
the
concept
response
is
emergency
public
the
the
of
procedures
the
with
issues
the
raises
to
commitment
4
Thirdly,
rights.
their
and
emergency
increasingly
attracted
the
within
United
important
international
practice
and
academic
content
greater
jurisprudence
can
to
the
supply
Continued)
The Person
And
And
Security
Rights
Human
Of The
State:
Claims
Of National
I;
Security",
9 Yale
JWPO (1982)
part
Symposium,
"Limitation
In
The
Provisions
And Derogation
ICCPR",
7 HRQ
(1985)
I,
the
principles
of
set
part
by
"The
Siracusa
the
Conference
adopted
are
entitled
Principles
Provisions
On The
Limitation
Derogation
And
"Siracusa
In
The
ICCPR"
the
below
to
as
are
referred
in
Principles".
been
They
have
published
also
The
U. N. Doc. E/CN. 4/1985/4
C. Warbrick,
(Sept.
1984);
in
Emergencies,
Protection
Of Human
National
Rights
In
Problems,
(ed. ),
F. E. Dowrick
Rights
Human
(1979).
Perspectives,
Texts,
pp. 89-106,
Responding
n. 1 above
and R. Falk,
in
Violations,
Jorge. I. Dominguez
al.,
et
(1979).
Human Rights,
Global
pp. 207-257,
3
(1981),
4
5
Prevention
Minorities
See
See
ch. 1,
pp. 1-4.
See Hartman,
See
prs.
ibid.,
1.18-1.21;
Hartman,
To Severe
Enhancing
n. 1
above,
p. 11.
The
On
Sub-Commission
The
n. 1
above.
Of
Discrimination
Of
Protection
And
The
now-prepares
an annual
respect
on the
report
Continued)
(Footnote
Lri.
useful
article
follows
There
of
to
guidance
4.
the
adoption
Covenant.
HRC under
of
6
the
HRC
brief
comment
a general
The
considerations
an instructive
provide
reports
7
more particularly.
with
4/5
in
its
considerations
distillation
4.
article
That
of
practice
under
of
example
the
practice
includes
the
40(4)
article
the
of
United
and
so
of
the
Kingdom
are
dealt
(Footnote
Continued)
declaration
for
states
the
of
of
rules
governing
definition
follow
is
the
The
to
and
report
exception.
1
in
by
Questiaux,
the
above
n.
and
study
guidelines
to evaluate
the effects
of emergency
of states
attempt
The first
observance
of human rights.
on the practical
by Despouy
has recently
been presented
covering
report
twenty
eight
countries,
p. 29.
see 39 Rev. ICJ (1987)
6
by the
G. C. 5/13,
HRC
Doc. A/36/40
p. 110,
adopted
311th
(July
1981).
meeting
at its
7
See prs.
7.23
et
seq.
CH. 7
Article
4 Under
7.3
When
The
Reporting
the
HRC
was
of
reports
submission
members
of
should
particular,
to
the
weakening
General
be
of
Guidelines.
members
(article
confused
40
been
more
article
questions,
additional
emphasis
and
to
and
from
in
the-objecting
to
(3)).
indicate
report
It
would
States
to
clearly
HRC
the
concerning
required
procedure.
the
comments
of
HRC
the
of
members
information
have given
on
reports
adequate
4 and in
have
asked
almost
all
members
cases
further
made
comments
requested
and
9
information.
the
Indeed,
primary
at times,
has
HRC
the
of much of the
of
considerations
be
to
the
relevant
4
Article
4 is
considerations
collection
to
of
detailed
further
4.
article
(1).
An interesting
feature
that
to
they
events
pr. 2,
not
after
discussion
the
See
l-9;
Doc. A/32/44
prs.
pr. 138.
impliedly
derogations,
cover
pr. 3.3
above.
See G. C. 5/13,
the
of
have
decided,
was
obligations
(article
the
therefore
reasons
that
submitted
notify
Secretary-
the
derogations
to
as
Covenant
the
it
refer
to
of
in
few
appeared
information
article
the
of
separate
sensible
appears
very
7.5
two
practice
It
that
the
information
the
derogation
7.4
(1))
and
expressly
8
is
It
a number
subject
of
to
notification
Unfortunately,
to
General
4(3)
article
derogation
not
parties
in
the
the
because,
mentioned
be
misinterpreted
might
provision
any
therefore,
be
so
that
that
view
not
for
guidelines
40 (1) (a)
article
the
immediately.
made
have
under
do
requires
which
Procedure.
preparing
expressed
derogations
476
of
approach
strictly
the
entry
in
pr. 7.15
into
to
their
confined
in
SR 43 prs.
The guidelines
II,
see
part.
cited
members
force
of
54-57;
SR 44
do,
however,
b,
at
ch. 3,
below.
the
for
ICCPR
have
representatives
information
at
years.
to determine
regimes
7.6
article
have
proclamation,
on
official
what
to
the
measures
taken
has
been
the
proclamation
directed
political,
temporis"
any
who
grounds
proclamation
pre-condition
the
to
of
social,
is
entitled
of
4.49-4.52
any,
terms
emergency
As
to
the
13
make
procedures?
what
of
a state
emergency
legality
or
Particular
of
attention
permit
which
circumstances
economic
See
ch. 4,
prs.
the O. P.
under
by
if
emergency
12'
termination.
and
public
of
public
twenty
the
with
elements
procedures
national
Constitutionality
14
thereunder?
the
examples,
compliance
ensure
proclaimed,
officially
10
appropriate
whether
last
the
those
used
for
occurring
or in
State
the
State
asked
emergency
of
their
subsisted
after
have
how
asked
a
Members
Was the
and
of
example,
then
to
exist
and mechanisms
state
for
the
whether
been
existence
period,
recent
11
have
Members
more
of
any
the
since
concerned.
frequently
concerning
time
any
State
the
10
emergency,
for
example,
factors,
or
natural
on
"ratione
above
of
11
See e. g.,
on Iraq),
SR 199 pr. 13 (Vincent-Evans
(Koulishev
49
on
SR 200 pr. 2 (Lallah
222
SR
Iraq),
pr.
on
Colombia),
SR 387 pr. 11 (Tomuschat
on Mexico).
12
SR 118 pr. 13 (Lallah
on Ecuador).
13
Siracusa
See
Tunisia).
SR 29 pr. 6 (Lallah
on
42-43,
Principles
and 62 , n. 1 above.
14
The
Finland).
(Hanga
170
on
pr. 58
in
4
article
of
requirement
an
official
proclamation
15
important
ICCPR
article
on
advance
represents
an
A, Vol. 3 (1961),
Series
Lawless
Case,
ECHR. In the
EUCT,
does
"the
that,
Convention
the
EUCT noted
not
contain
Contracting
the
to the
that
any special
provision
effect
in
its
State
the
territory
must
concerned
promulgate
derogation
Secretary-General
to
the
of
notice
addressed
Council
Europe",
The absence
such
a
of the
of
of
pr. 47.
has
been
by
Fawcett,
requirement
criticized,
e. g.,
See
Resolution
56(16)
Council
the
p. 313.
of
of
ECHR - Collected
Ministers,
(1987).
Texts,
p. 200
SR
'"I
15
disasters.
comparative
terms
legislative
of
acts.
a "public
role
with
the
They
have
or
the
hands
the
or
the
expense
concern
of
Prime
at
Constitution
no
and
by
attempt
of
minister,
a parliamentary
the
the
or
of
concentration
individual,
a single
of
armed
15
been
for
government,
forces,
particularly
organ
single
has
There
the
of
State
of
Covenant
to
President
the
terms
respective
expressed
in
powers
the
kind
for
provide
a definition
of or criteria
17
have sought
determine
Members
to
emergency"
.
charged
of
national
authorities
and function
18
implementation
the
of
state
of
emergency.
HRC, however,
the
the
16
involved
generally
between
analysis
the
and
has
This
.2/V
in
for
where
19
body.
hands
the
the
example,
this
example,
oft
executive
has
been
See
at
(Uribe-Vargas
84
on
SR
e. g.,
pr. 11
State
Madagascar),
SR
87
(Madagascan
pr. 11
SR
SR 258 pr. 48 (Tarnopolsky
representative);
on Italy),
222 pr. 3 (Sadi
in the event
of
Derogations
on Colombia).
disasters
drafting,
during
the
natural
were
envisaged
1
41,
Doc.
A/2929,
V,
39.
n.
Siracusa
Principle
ch.
see
pr.
"Economic
that,
difficulties
states
above,
per se cannot
derogation
justify
measures".
16
For an academic
analysis
of the AMR on similar
lines
see Norris,
n. 1 above.
17
in
the
EUCT
Cf.
by
The
the
criteria
adopted
Siracusa
See
Case,
23-30.
Lawless
n. 14
above,
prs.
to note
interesting
39-41,
is
It
Principles
n. 1 above.
in the second
report
the following
periodic
explanation
in
Australia
emergency
of
concerning
whether
a state
of
by electricity
supply
Queensland
as a result
of a strike
have
in
State
the
that
should
south-east
of
workers
in
derogation
article
under
aa
notification
of
resulted
"as the
was
Queensland
4(3)
situation
of the Covenant,
it
to
that
State,
emergency
an
was
not
confined
"the
life
the terms
of
threatening
of the nation"
within
Covenant",
4,
3
the
paragraph
of
article
2, p. 36.
Doc. CCPR/C/42/Add.
18
19
See e. g.,
See
e. g.,
SR 213 pr.
SR 248
11
pr. 30
(Tarnopoisky
(Bouziri
on
(Footnote
on
Senegal).
Venezuela)
Continued)
7.7
The
concentrated
legal
on
state
of
siege,
22
emergency,
necessity.
or
concern
based
on
order,
at
domestic
and
comment
measures
exceptional
and
the
necessity,
under
temporary
it
as
25
nature
and
may
to
the
In
its
"the
held,
4
article
perverse
and
concepts.
that
public
as
explanations
HRC stated
taken
limitations
such
subversion
of
partially
indicated
security,
these
whether
have
and
public
understandings
general
They
only
22
23
reply
24
Douri
view
of
an
last
as
are
(Footnote
Continued)
(Ermacora
SR 265
SR 327
Barbados),
pr. 35
on
(Tarnopolsky
SR 128 pr. 66 (Vincent-Evans
on Morocco),
SR 442 pr. 19 (Bouziri
Chile),
on Lebanon).
20
(on France).
See pr. 7.12 below
21
of
national
were
concepts
requested
state
know
to
of
example,
of
restrictions
latent
security,
degrees
economic
wanted
undefined
precise
for
HRC,
state
altogether.
safety,
delinquency,
that
and
the
21
has
the
and
provisions
general
public
national
have
abrogated
vague
alarm,
23
war,
legislative
or
their
of
Members
constitutional
suspended
by
of
state
state
24
forms
encountered
20
determine
to
different
the
emergency
information
additional
attempting
of
effects
public
for
search
pr. 40
on
on Spain).
on Nicaragua).
(Prado-Vallejo
on
Finland),
SR
See SR 82 or 83 pr. 27 (Hanga on Madagascar),
84 pr. 11 (Uribe-Vargas
SR 222 pr. 3 (Sadi
on Madagascar),
See Singhvi,
n. 1 above,
at n. 2.
on Colombia).
25
SR 355 pr. 28 (Prado-Vallejo
See e. g.,
on Chile),
(Ermacora
SR 356 prs. 31-32
SR 127 prs. 23-44
on Uruguay),
(Prado-Vallejo)
See
and 128 pr. 17 (Tomuschat)
on Chile.
22-34,
Principles
Siracusa
n. l above.
CH. 7
long
threatened".
7.8
State
the
controls
particular,
was
legislative
the
the
did
be
the
ICCPR
between
It
situations
Covenant
the
of
is
of
course
potentially
had
the
concerned
27
In
emergency?
of
of
been.
alleged
violated?
constitutional
public
28
the
emergency
in
or
court
available
review
who
or
termination?
or
a Constitutional
those
there
organs
legality
Was judicial
for
exist
under
conflicts
7.9
courts?
remedies
terms
29
Were
supervision
extension
in
to
emergency
proclamation
or
challenged
ordinary
rights
the
constitutionality
measures
the
Parliamentary
any
control
over
its
continuance,
emergency,
Could
there
public
of
state
invited
Covenant.
upon
the
been
a
the
of
is
concerned
often
under
restrictions
implementing
with
regime
requirements
or
nation
have
legal
the
to
conforms
any
the
of
representatives
how
explain
life
the
26
as
480
their
that
30
How
and
powers
and
would
the
be
resolved?
important
affect
all
to
of
note
that
the
other
emergency
in
rights
26
G. C. 5/13,
Siracusa
See
n. 6
above,
pr. 3.
48,
in
Principle
De
the
The
EUCM stated
n. l
above.
Case
that
derogation
Becker
continued
not
will
of rights
be justifiable
the
Convention
the
under
emergency
after
The
has
A. 214/56,2
YBECHR
ceased,
p. 214.
into
institutionalization
ordinary
of emergency
measures
by
is
favoured
increasingly
laws
technique
a
below
(Graefrath
Governments,
on Chile).
see pr. 7.20
27
also
See e. g.,
the Siracusa
SR 29 pr. 6 (Lallah
on
Principles,
n. l above.
28
Tunisia).
See
See
SR 52 pr. 49 (Lallah
See e. g.,
on Sweden).
49-50,55,
In the Lawless
Principles
Siracusa
n. l above.
the
the
EUCT
Case,
of
number
above,
n. 14
noted
designed
in the
to prevent
operation
abuses
safeguards
detention,
of administrative
pr. 37.
of the system
29
Principles
56 and 60,
See Siracusa
n. l above.
Alexander,
The
Illusory
Of Human
Protection
See also
Courts
Public
By National
During
Of
Periods
Rights
5 HRLJ (1984)
Emergency,
pp. 1-65.
30
See e. g.,
SR 331 pr.
39.
the
the
HRC's
The
ICCPR.
in
rights
context
information
enjoyment
the
article
to.
derogation
had
9 and
No. 8/1984
counsel.
the
about
under
must
the
has
is
been
covered
9,14
be
about
the
law"
inconsistent.
the
on
effect,
Law
permissible
to
access
on
the
report
doubts
expressed
Terrorism
Of
Covenant,
the
of
Organic
of
Prevention
and
Spain32
of
15.35
indication
no real
by the expression
international
not
of
members
provisions
during
report
of
from
which
example,
consideration
the
and
from
limitations
of
measures
ICCPR,
the
operation
and
of
the
exercise
For
extension
number
articles
There
what
with
particularly
to
the
the
articles
concern
of
compatibility
1979
7.10
ICCPR
required
of
in
other
specific
effect
on
periodic
expressed
14
Lanka34
the
including
31
made.
second
concerning
Sri
frequently
remedies
detention
of
police
33
Similarly,
during
period
Act
the
members
articles
of
been
of
of
number
27,
article
consideration
have
of
and
rights
the
within
in
seen
of
even
emergencies
public
of
members
explanations
and
under
consideration
However,
4
article
be
then
must
detailed
ICCPR.
the
of
taken
its
of
context
considerations
with
which
36
The only
from
members
"other
as
obligations
derogation
measures
indications
of
what
31
SR
See e. g. SR 224 pr. 77 (Lallah
on Suriname)
,
(Al
Douri
15
442
Tanzania),
SR
282 pr. 21 (Lallah
pr.
on
SR
Chile),
128
66
(Vincent-Evans
SR
on
Nicaragua),
pr.
on
Vallejo
221 pr. 23 (Pradoon Colombia).
32
33
34
3.
Doc. CCPR/C/32/Add.
See SR 586
prs.
34-44,
Doc. CCPR/C/14/Add.
35
SR 587
4 and
prs.
(19
See SR 471,472,473
and 477.
on the
summary of the HRC's discussion
in Doc. A/39/40
Constitution
the Indian
36
Case,
See
n. 14
Doc. A/2929,
the
above,
1-33.
).
see the
in
powers
Similarly
special
pr. 251.
In
ch. V,
pr. 43.
EUCT
considered
(Footnote
Lawless
the
same
Continued)
the
be
might
from
HRC member
Conventions
have
United
Nations
7.11
which
appear
discrimination
sex,
23(3)
article
objected
to
on
the
concerned.
law
the
on
or
the
basis
ground
social
in
it
provisions
allowed
"involve
not,
colour,
race,
of
For
of
(1)
article
origin".
Constitution
that
treaties,
customary
national
must
under
parties
and
provision
would
expression
States
to
39
Salvador.
El
humanitarian
measures
religion
(d)
of
the
for
the
solely
language,
that
directed
violate
derogation
that
in
and
Geneva
Protocols
situation
conventions
been
1949
1977
the
and
suggestion
the
of
the
to
obligations
has
to
War
rights
40
law.
Criticism
Of
Charter,
human
international
Law
occasional
terms
indicated
example,
regional
the
Afghanistan38
for
cover,
the
relevance
in
example,
Commentators
the
of
are
been
that
the
on
thereto37
for
have
covered
example,
Barbados
distinctions
was
to
(Footnote
Continued)
The EUCT stated
had come to
expression.
that
no facts
its
knowledge
had not
to
that
this
suggest
condition
been satisfied,
in U. K.
Ireland,
Similarly
prs. 39-41.
-"v.
EUCT, Series
A. Vol. 25, pr. 222,
(1978).
37
For
the
text
A. Roberts
these
and
of
see
(1949)
169-337
R. Guelff,
Documents
On The Law Of War,
pp.
(1977).
See H. Montealegre,
The Compatibility
and 387-463
Rights
Human
Of
State
Party's
Derogations
Under
II
And
Protocol
With
Its
Instruments
Obligations
Under
(1983)
3,33
Common
Article
Am. U. L. R.
pp. 41-51;
To
Relation
C. Lysaght,
The Scope
II
And Its
Of Protocol
1949
And
Of
3 Of The
Common Article
Geneva
conventions
Siracusa
ibid.,
Human Rights
Other
Instruments,
pp. 9-27;
67,
Principle
n. 1 above.
38
See SR 469
pr. 33
(Tomuschat),
reply
war in Afghanistan")
at
SR 608
and SR
(Graefrath).
Siracusa
SR 444 pr. 12 (Opsahl).
See also
66-69,
Principles
Glasser,
n. 1 above;
ch. 5, n. 68 above.
"Other
the
See also
IACT
the
on
advisory
opinion
of
Subject
Of The
Treaties
To The Advisory
Jurisdiction
3 HRLJ (1982)
Court",
p. 146.
See
TVf.
might
from
be
HRC member
Conventions
have
7.11
United
Nations
discrimination
sex,
language,
objected
(Footnote
to
of
the
concerned.
El
States
to
law
or
the
it
"involve
For
of
allowed
colour,
race,
origin".
(1)
article
of
Constitution
that
provisions
not,
ground
social
customary
national
must
under
treaties,
and
provision
would
parties
in
39
Salvador.
expression
humanitarian
the
on
basis
the
for
the
religion
on
that
measures
23(3)(d)
article
in
Geneva
Protocols
situation
and
directed
violate
solely
1977
the
and
1949
the
of
the
suggestion
conventions
been
derogation
that
to
obligations
has
to
War
rights
40
law.
appear
Of
Charter,
human
Criticism
which
Law
occasional
terms
indicated
example,
regional
international
the
Afghanistan38
for
cover,
the
relevance
in
example,
Commentators
the
of
are
been
that
the
on
thereto37
for
have
covered
example,
Barbados
distinctions
was
to
Continued)
had come to
The EUCT stated
expression.
that
no facts
its
knowledge
had not
to
this
that
suggest
condition
been satisfied,
in U. K.
Ireland,
Similarly
prs. 39-41.
--v.
EUCT, Series
(1978).
A, Vol. 25, pr. 222,
37
For
A. Roberts
the
text
these
and
see
of
(1949)
R. Guelff,
Documents
On The Law Of War, pp. 169-337
(1977).
The Compatibility
See H. Montealegre,
and 387-463
Rights
Human
Of
State
Party's
Under
Derogations
II
And
Protocol
Instruments
With
Under
Its
Obligations
(1983)
Common
3,33
Article
pp. 41-51;
Am. U. L. R.
To
Relation
C. Lysaght,
II
And Its
The Scope Of Protocol
Of 1949 And
3 Of The Geneva conventions
Common Article
Siracusa
ibid.,
Other
Human Rights
Instruments,
pp. 9-27;
67, n. 1 above.
Principle
38
SR 444
(Opsahl).
pr. 12
66-69,
Principles
Glasser,
n. l above;
the
See
also
advisory
opinion
of
Subject
To
Treaties
The
Advisory
3 HRLJ
(1982)
Court",
p. 146.
See
at
SR 608
and SR
Siracusa
See also
ch. 5, n. 68 above.
"Other
IACT
the
on
The
Of
Jurisdiction
-1.
be made
grounds.
7.12
in
41
The
terms
of
approach
interesting
by
the
1978
the
Act
No. 55-385
declaration
be
understood
of
the
and
the
of
strictly
situation'
by
required
the
in
conformity
Covenant,
of
with
as
were
French
the
for
the
of
respect
article
or a
respect
the
by
purposes
limit
to
of
of
the
terms
'to
16
the
the
article
of
article
required
French
3 April
of
in
purpose
Republic,
Republic
its
of
in
siege,
1955 in
secondly,
of
exigencies
the
power
take
'the
of
the
measures
"42
commented
the
1849
16
article
which
and
emergency
be implemented,
are to
the
circumstances'
Mr. Herdocia-Ortega
16
to
cannot
of
was
Act
the
implementing
and
President
of
meeting
Covenant;
extent
article
3 April
of
as
Constitution
of
of
a state
a state
instruments
interpreting
the
1 of
of
these
enable
some
ratification
9 August
of
of
prohibited
in
enumerated
in
respect
article
Act
Declaration
-,
reservation,
Constitution
in
some
4 attracted
article
circumstances
in
and
on
France's
following
the
of
implementation,
the
to
France
of
the
of
emergency
comments.
accompanied
"First,
the
public
-,
that,
constitution
requirements
arrangements
of
with
"the
provisions
to be
appeared
4 of the
article
regard
to
states
41
International
Of
Human
Rights
Status
(1987).
Report
Instruments,
French
For
the
pp. 34-35
is provided
22/Add.
information
2. Further
Doc. CCPR/C/
France's
Doc. CCPR/C/46/Add.
second
periodic
report,
(1987).
See also
McRae,
pp. 17-19
ch. 6, n. 21 above.
see
in
2
of
siege
emergency".
and
clarification
it
that
it
could
normally
by
commented
that,
entered
like
to
over
by
"with
in
France
know
the
who
acts
Mr. Graefrath
for
responsible
of
the
the
to
44
the
extent
in
Douri
reservations
he
that
would
control
exercising
President
the
Mr. Al
article,
for
extent
that
or
the
that
of
respect
was
to
only
Covenant?
regard
Did
reservation.
applied
the
due
requested
Constitution
be
4 of
article
the
apply
the
under
permitted
Tarnopolsky
of
would
possible
Constitution
Mr.
part
Covenant
the
was
first
the
of
mean that
43
45
-"case".
commented,
"France
had
article
4,
made
thereby
concerning
of
that
confirming
4 were
article
entering
reservation
the
of
scope
to
reservations
by the
that,
and
possible
reservation,
regard
with
emergency
It
be broadened
seemed
could
considerably.
16
from
of
the
text
clear
that
article
submitted
the
French
Constitution
the
relevant
and
legislation
had a far
application
of
range
wider
measures
than
article
French
reservation
responsibility
decide
was
not
a State
party
French
for
the
4,
applied
to
45
46
were
foreign
pr. 55.
SR 441
pr. 47.
SR 441
pr. 35
(as
not
the
1,
which
corrected).
the
the
was
Republic
to
necessary.
interpretation
That
subject
France's
that
of
control".
replied,
the
extent
of
he repeated
paragraph
"it
a correct
did
which
to
that
strictly
but
the
Furthermore,
President
representative
article
44
measures
Covenant,
of
43
the
a reservation,
the
"As
Covenant.
stated
of
what
of
The
the
of
such
powers
46
reservation
to
only
reservation
legitimate
was quite
CH.
the
under
Treaty.
whether
reservations
Committee
is
It
this.
broadening
and
is
difficult
of
the
purpose
the
the
the
within
question
HRC should
to
reconcile
of
emergency
ICCPR.
of
reservations
context
of
the
than
considerable
been
that
argued
invalid
s
.
of
the
purposes
the
made
40
article
the
with
ECHR is
that
validity
the
a stricter
powers
and
other
provision
a
the
of
for
one
take
has
It
the
of
to
made
was
French
a similar
to
reservation
incompatible
the
with
objects
48
ECHR.
This
implies
submission
consider
the
a derogation
to
scope
of
article
the
reservations
It
object
that
Law
be
47
decide".
submitted
to
approach
to
that
could
that
of
the
on
him
to
seemed
paragraphs
7.13
Convention
Vienna
It
485
HRC
should
by
States
reporting
procedure.
7.14
In
have
been
the
criteria
no
by
emergency
jurisprudence
specific
as
HRC's
clear
members
regime
under
47
its
the
the
individual
continuation;
under
the
of
4 there
article
of
application
declaration
is
there
justification
the
or
to
although
cases
to
considerations
indications
of
any
public
comparative
49
In
ECHR in
this
respect.
doubts
have expressed
members
for
50
useful
emergency
particular
suggested
that
article
the
of
48
(1987);
Van
ECHR See
Collected
Texts,
p. 77
Dijk
Hoof,
Higgins,
p. 317
n. 1 above,
and Van
pp. 452-4;
than
64
Article
ECHR permits
other
n. 5.
reservations
P. H. Imbert,
See
those
a
of
general
character.
Rights
On Human
To The European
Reservations
Convention
Case,
Strasbourg
Temeltasch
Before
The
The
Commission:
(1984)
33 ICLQ
pp. 558-595.
49
See Lawless
Case,
U. K. V. Ireland,
n. 14 above;
The'Greek
Case,
12 YBECHR (1969)
n. 36 above;
pp. 41-42.
50
See SR 127-130,527-31
See
on Chile.
and 546-8
Continued)
(Footnote
777
States
allowed
when
the
parties
a public
decision
sovereign
statement
under
to
that
developed
under
7.15
HRC
reporting
justified
or
derogation;
summed
have
in
provided
declaration
of
applicable
provisions
derogations.
had
rights,
it
emergency
whether
further
informed
in
been
in
derogations
the
",
which
fact
other
derogations
54
(Footnote
Continued)
The United
M. J. Bossuyt,
27 ICLQ
In Chile,
Rights
case
only
officially
the
whether
of
not
Nations
(1978)
the
been
States
Covenant
of
declared
but
Covenant
allows
no
derogated
from
and
had
been
parties
of
the
also
reasons
And
And Civil
pp. 462-471.
See e. g.,
SR 284 pr. 34 (Aguilar
(Graefrath
See also
on Nicaragua).
on Suriname).
53
the
a state
See e. g.,
SR 128 pr. 40 (Tarnopolsky
See the judgements
of the EUCT in the cases
and Ireland
n. 36 above.
v. U. K.,
n. 14 above,
pr.
(Lallah
and
whether
51
52
the
few
from
States
and
for
governing
a
of
derogated
had
from
law
the
the
the
systems
emergency
of
of
unclear
had
the
under
indicated
legal
state
was
derogation
appreciation"
generally
apparently
rights
of
experience
their
However,
which
its
up
doctrine
any
follows,
as
parties
mechanism
"margin
the
53
ECHR.
the
of
existence
of
has
"States
the
on
procedure
the
in deciding
51
and that
the
concerning
emergency
situation
was a
52
has not,
however,
been any clear
There
act.
jurisdiction
its
by the
HRC on the
scope
of
4
The
latitude
considerable
emergency
article
similar
486
Political
on Chile).
of Lawless,
on Mali),
SR 224 prs.
doctrine
Reference
to this
was made
in
discussions
Committee
the
Third
of
the
Doc. A/5655
doctrine
On the
of
pr. 49.
appreciation
see ch. 4, n. 383 above.
54
G. C. 5/13,
n. 6 above,
pr. 2.
for
during
1963,
margin
SR
47
the
see
of
4(2).
Article
7.16
HRC has
The
times
of
the
all
from
rights
representatives
domestic
56
emergency.
Iran,,
7.17
are
On
a
for
violated,
59
El
and
Only
one
to
reservation
explain
that
the
Salvador.
State,
55
made".
how the
times
occasions
non-derogable
example,
60
in
Trinidad
and
4(2).
That
the
Republic
article
those
be
in
that
rights
State
relevant
rights
non-derogable
protected
view
human
particularly
can
of
"in
that,
view
of
to
number
their
stated
clearly
ensure
4(2)
the
protection
important,
asked
provisions
holds
derogation
no
are
article
being
the
more
which
it
that
stated
emergency,
becomes
in
__ "zvi
Chile,
public
of
members
have
rights
were
58
57
Uruguay,
has
Tobago,
made
stated
reservation
that,
"The
Government
Tobago
of
the
reserves
provision
of
Covenant
since
section
55
Principles
56
Venezuela),
57
58
59
60
61
Constitution".
to
SR
e. g.,
SR 271 pr. 28
apply
article
its
of
legislation
sections
G. C. 5/13,
n. 6
above,
59-60,
n. l above.
See
of
7(3)
enact
with
61
to
not
paragraph
Parliament
enables
is inconsistent
it
said
right
(4)
pr. 3.
248
pr. 4
(Tarnopolsky
Trinidad
of
and
full
in
4
the
of
the
Constitution
even
and (5)
See
(Prado-Vallejo
on Kenya).
though
of
the
Siracusa
on
See n. 51 above.
See SR 355,356,357,359
and
See SR 364,365,366
and
368.
See SR 468,469,474
and
485.
373.
44-45.
42
See Human Rights
Status,
pp.
above,
n.
the
Constitution
For
the
of
relevant
provisions
of
Trinidad
and Tobago
n. 41 above,
see Blaustein
and Flanz,
Vol. XVI (1977,1983).
YOO
During
Tobago
consideration
this
reservation
Mr. Tomuschat
commented
"The
matter
the
of
the
be
was
their
to
law,
Tobago
to
consider
The
objection
opinion,
"it
the
The
the
with
State
of
relevant
HRC in
and
a much
that
context
of
Again
preferred.
expressed
62
63
See
reservations
64
of
it
The
active
article
would
in
be
had
also
view
be much
validity
to
lodged
in
a
its
history
of
the
be
put
to
approach
noted
the
in
4 as
sucI
asked
that
the
and
of
incompatible
63
The
Covenant".
the
view
of
is
have
would
Mr. Graefrath
a view
SR 551
that
it
more
should
reservation
replied
make
stating
of
serious
purposes
to
and
even
Trinidad
of
text
purpose
question
64
Ministry.
the
the
and
of
should
rights
was
Germany
said
the
represents
body
from
wording
their
expedient
reservation
the
object
it
of
the
representative
nature
that
Republic
that
It
Government
62
it".
follows
Covenant
drafters
specific
Government
found
to
the
their
objectives
the
withdrawing
formal
on
the
for
Federal
example,
that
crisis.
with
reservation.
in
stressed
of
have
and
For
since
understanding
in
treaty
one,
restrictions
situations
inconsistency
Trinidad
of
criticized.
serious
had
Covenant
limits
report
that,
was
article
the
of
the
of
the
role
of
the
reservations
is
to
and
regards
above
better
to
Mr. Tomuschat
of
of
serious
if
the
the
HRC as
be
a
reservation
pr. 1.
Status,
19-23 of
n. 42 above,
the V. C. L. T.
p. 51. On
(1969).
555
how a
is
difficult
It
to
pr. 2.
see
to
be other
reservation
a derogation
could
provision
than
to
the
contrary
object
and
of
a human
purpose
treaty.
When
the
rights
presenting
second
periodic
the
report
of Trinidad
and Tobago
representative
state
indicated
her
that
Government
had
deemed
it
not
to withdraw
the reservation
4(2),
necessary
to article
SR 765 pr. 15. The reservation
again
criticism,
attracted
ibid.,
(Higgins),
20 (Cooray),
22 (Lallah).
prs. 16-18
SR
. n.
in
Similarly,
question.
to
mechanism
Although
articles
indicated
derogations
for
Covenant,
political
the
are
the
of
of
not
Comment
on
protection
report.
of
the
HRC
have
which
the
of
difficult
the
of
justify
to
articles
other
suspension
concerning
of
the
of
the
25.66
human
in
parties,
States
derogations
40 of
extent
of
65
fulfil
to
each
the
"it
made
their
Covenant
right
of
the
of
that
stated
times
have
they
ICCPR and
67
formality".
In
it
and
nature
of
the
reporting
by indicating
derogated
from
that
stressed
its
General
the
with
along
that
important
was
public
to
referred
consistently
4(3)
rights,
parties
further,
article
HRC have
article
"mere
article
of
States
and
would
some
requirements
other
be
until
65
4(3).
Members
they
waiting
members
example,
in article
rights
Article
7.19
it
from
than
next
periodic
indicates
4(2)
non-derogable
that
reply
States
article
are
be an established
is received
from
to
needs
rather
that
of
4y
a prompt
concerned
consideration
7.18
that
ensure
State
the
there
inform
emergency,
and
reasons
the
of
extent
therefore,
under
obligation
the
nature
and
together
with
the
See n. 64 above.
66
on Syria),
SR 160 pr. 51 (Vincent-Evans
See e. g.,
ii
528
SR
Peru),
(Prado-Vallejo
pr.
32
430
SR
on
pr.
have
suggested
(Vincent-Evans
Chile).
Some
studies
on
4(2)
in
list
article
that
the
rights
of
non-derogable
463,
1
p.
be
ICJ
above,
n.
study,
extended,
see
should
27
Article
l
70,
38,
Siracusa
Principle
above.
n.
pr.
and
list
longer
AMR
non-derogable
the
of
contains
a
of
AMR
to
the
4(2).
States
For
than
parties
article
rights
"other
be
by
under
these
obligations
covered
would
The third
in article
law"
4(2)
international
ICCPR. Cf.
Opinion
Advisory
of the IACT, n. 40 above.
67
See
also
relevant
documentation".
indicate
whether
derogations
or
are
as we
disagreement
between
4
has
derogations
by
made
7.20
Although
notification
been
4(3).
with
71
68
Principles
69
70
of
that
invalid
comply
five
The
year
have
the
furthest
G. C. 5/13,
44-47.
See ch. 3,
except
the
indicated
there
of
notification
that
been
some
in
obligation
is patently
it
to
consider
in
accordance
70
perioa.
importance
of
of
not
has
been
article
to
the
satisfied
comply
no
4(1)
or
real
have
fully
in
article
requirements
individual
have
gone
members
above,
pr. 3.8-3.8.1
failure
HRC
the
on a number
made under
basis
to
made
relationship
unable
have
4(3)
n. 6
that
stressed
derogations
the
the
not
have
has
periodicity
and
article
on
be
parties
notifications
requirements
suggestion
submitted
derogations
that
occasions
reporting
States
members
of
the
to
them
there
to
does
who
on
as
HRC
established
report
HRC
been
the
Comment
parties
noted,
and
40.69
It
article
inadequate
for
the
to
the
within
General
States
already
article
with
The
when
required
have
and,
68
pr. 3.
See
also
Siracusa
above.
Ibid.
initial
For example
the
of Poland
report
(Doc. CCPR/C/3/Add.
in
by
HRC
2 (1979)
the
was considered
(SR 186,187
1979
A state
was
of emergency
and 190).
in
declared
1981.
The state
Poland
of
on 13 December
1983.
The
terminated
emergency
was finally
on 22 July
the
Poland,
reviews
second
periodic
report
which
of
to the HRC in October
state
of emergency,
was submitted
It
(Doc. CCPR/C/32/
1985
Add. 13).
Add. 9
was
and
(SR 708-711).
by
1987
the
HRC in
March
considered
into
to enter
Therefore
the
HRC had no opportunity
a
had
dialogue
Poland
the
with
state
of emergency
until
been
terminated.
For
U. N.
state
of
on the
reports
in
(Gobbi)
Poland
Doc. E/CN. 4/1983/18
emergency
see
(Gobbi
E/CN. 4/1984/26
Ruedas),
criticized
and Patricio
(1984).
by Franck,
78 Am. JIL
See
pp. 829-830
p. 811 at
73 of the Siracusa
Principles,
principle
n. 1 above.
71
See
(Prado-Vallejo
SR 355
e. g.,
on
pr. 24
Cf.
Uruguay).
the view
by the
expressed
matter
on this
HRC under
the O. P. in pr. 7.
below.
. 7 J.
has
been
have
not
for
to,
to
example,
second
of
periodic
For
during
of
and
of
under
Mr. Graefrath
as
official
the
of
number
taken
measures
example,
4(1)
article
consideration
Chile72
of
made
members
the
state
inter
commented,
that,
"In
to
order
permit
unconstitutional
institutionalized
during
been
in
subsequently
the
Junta
measures
to
necessary
was
the
Covenant.
being
for
which
class
or
under
article
emergency
members of
or de facto,
political
72
73
intended
its
context
Doc. CCPR/C/32/Add.
used
regime.
of
whenever
What
was
emergency
any
to
Constitution,
of
whether
proclaimed
the HRC have had to
an
doctrines
or
character
inter-State
by
action
propagate
4,
was
measures
1980
the
consideration
of
of
to do with
nothing
4 of
in Article
term
discriminatory
73
in
a result,
levels
be
state
character
warfare".
and
various
same
8 of
illegal
as
group
period
had
Chile
the
article
totalitarian
Inevitably
wider
in
by
condemned
individual
a
in
had
As
existing
so-called
justify
the
to
interim
could
The
used
provided
of
the
protect
intended
an
of
which
an emergency
what
of
emergency
new Constitution.
disposed
now
emergency
called
the
state
human
of
violations
continuing
the
rights,
7.21
of
necessity
instance,
critical
emergency.
alia,
requirements
report
derogations
the
proportionality,
For
severely
that
view
the
satisfied
proclamation.
were
their
state
based
States
on
of
officially
consider
disputes
the
and
1 (1981).
his
SR 528 pr. 28. See also
on Chile
at
comments
SR 128 prs. 8-9 and on Iran
at SR 366 pr. 27. In the Greek
EUCM rejected
that
Case
the
the
view
a
applicants
is barred
from derogating
under
government
revolutionary
15 ECHR because
it
Greek
the
crisis,
article
created
12 YBECHR (1969)
Case,
Only Mr. Ermacora,
now a
pp. 31-32.
ibid.,
the
HRC, dissented
from
this
of
member
view,
pp. 102-103.
CH. 7
civil
wars
States,
for
Afghanistan74
78
Salvador,
82
Lanka.
It
these
is
relevance
have
factual
74
See
international
75
76
77
78
79
80
81
Concerning
Against
America),
XXV ILM
XXV ILM
See
75
actions
simply
during
have
commenting
of
the
of
other
See SR 499,500
and
and
SR 103,331
See SR 442,443,444
and
81
the
El
Sri
of
though
not
and
aspects
83
Normally
States.
to
asking
implementation
For
ch. 5,
how
of
the
recent
n. 74 above.
226.
166.
505.
See SR 468,469,474,485,716,717
See
Egypt,
consideration
SR 603,604
608.
and
agreement
on Afghanistan
See SR 27,28,165
in
77
Nicaragua,
themselves
and
outside
situations
political
affected
SR 221,222,223
of
generally,
on
confined
situations
80
Lebanon,
members
the
76
Cyprus,
that
notable
to
regard
with
Colombia,
79
Jordan,
the
involvement
the
without
example,
avoided
members
these
or
situations
always,
the
with
492
and
719.
332.
and
446.
Case
See also
SR 420,421,422,428
and 429.
In
And
Activities
Military
And
Paramilitary
States
Of
(Nicaragua
United
Nicaragua,
v.
1986,
Reports
Merits,
Judgement,
I. C. J.
p. 14;
(1986)
the
See also
material
at
pp. 1023-1289.
(1986)
pp. 1290-1325,1337-1365.
See
82
Human
Lanka,
SR 471,472,473
477.
See
P. Hyndman,
See
and
The
In
Sri
Rule
Of Law And The
Situation
Rights,
(1985)
8 U. N. S. W. L. J.
pp. 337-361.
83
judicious
but
the
good
example
of
critical
is
HRC members
the
the
of
of
approach
consideration
Afghanistan,
A less
of
n. 74 above.
report
successful
A
(Footnote
Continued)
I:k 1J
the
in
rights
is
an approach
membership
7.22
to
The
be
to
and
United
other
ICCPR
the
Nations
put
bearing
fruit.
increasingly
complying
in
4(3)
article
appeared
(Footnote
before
the
States
be commended
status
stress
in
the
and
human
in
the
particularly
86
the HRC.
by
that
nature
85
States
Such
HRC's
of
HRC members
most
seems
parties
notification
after
the
of
bodies.
4(3)
appears
with
light
politicized
on article
It
concerned.
the
rights
84
are
obligations
State
the
has
Continued)
took
consideration
place
of the report
in Iran,
regime
see SR 364,365,366
SR 430 pr. 46 (Tomuschat
on Peru).
of
and
the
368.
post-1979
See also
84
For
HRC's
the
to
general
some
exceptions
(Al
Douri),
9-19
442
SR
approach
see the
comments
prs.
at
(Bouziri)
(Movchan),
SR 443
and
prs. 29-34
prs. 15-36,40
in
(Errera)
Israeli
the
presence
prs. 40-42
concerning
U. S.
Lebanon;
SR 468 pr. 25 (Prado-Vallejo
the
concerning
36;
468
SR
interference
in
SR
El
Salvador),
pr.
at
reply
44
604
(Graefrath
SR
64
604
Afghanistan);
pr.
pr.
on
(Higgins
Soviet
of Afghanistan).
on the
occupation
85
see
Particularly
H. Tolley,
ch. 1,
86
the
U. N.
n. 1 above.
Human
Rights
Commission,
CH. 7
The
United
7.23
an
is
It
example
The
it
Kingdom
The
United
17
campaigns
Northern
Irish
intention
of
measures
which
provisions
of
derogate
from
the
of
of
21
derogated
7.25
40
from
The
(1)
concerning
Covenant
the
U. K. 's
those
the
(a)
Covenant
its
-submitted
on 21 September
article
In
10(3),
the
initial
1977.89
the
the
and
continue
with
certain
that
so
extent,
far
any
as
the
with
14,17,
12(1),
Covenant
the
U. K.
88
provisions.
U. K.
to
inconsistent
9,10(2),
articles
take
would,
were
to
related
inconsistent
and
arising
indicated
obligations.
taken
of
to
the
a, public
of
nation
notice
Government
be
the
under
of
U. K.
the
By
notice
terrorism
The
the
1976.87
gave
of
organised
might
22
or
in
life
affairs.
measures
provisions
19(2),
of
the
U. K.
HRC.
the
of
20 May
on
existence
at
4.
article
because
Kingdom
Secretary-General
the
the
closely
under
workings
ICCPR
the
to
the
of
more
United
the
1976
May
threatening
emergency
the
of
the
ICCPR
Nations
from
that
ratified
4(3)
article
is
a little
considerations
illustrates
U. K.
dated
note
HRC's
chosen
usefully
most
look
to
the
of
4.
Article
instructive
example
7.24
And
494
report
report
In
under
a single
recapitulated
article
paragraph
the
87
Sept.
The U. K. had signed
Covenant
the
on 16th
Signs
The
1968.
See
E. Schwelb,
Kingdom
The
United
On Human Rights,
18 ICLQ (1969)
Covenants
pp. 457-468.
88
84.
Hartman
42
Human Rights
Status,
p.
above,
n.
(1981),
Covenants
the
above,
n. l
pp. 19-20,
criticizes
be
that
the
of
given
requirements
notice
need
only
from
been
have
derogations
there
rather
which
provisions
derogation
the
than
taken
of
article
measures
as under
(3)
15
ECHR.
"U. K. 's
Hartman
the,
to
also
refers
'shotgun'
approach
of
even
articles
suspending
all
implicated
by
the
remotely
p. 20,
measures",
emergency
n. 102.
89
Doc. CCPR/C/l/Add.
17
(1977).
Y7j
.I
for
reasons
derogations.
consideration
that
the
emergency
measures.
not
life
the
appreciate
information
had
the
of
State
U. K.
Human
He also
7.27
of
In
a Supplementary
derogations
would
to
90
91
92
93
94
95
perfectly
pr. 205.
96
97
be withdrawn
came
to
Ibid.,
p. 3.
an
See ch. 3,
end.
pr.
and
until
97
3.20
U. K.
as
the
Court
95
point.
to
they
U. K.
be
relevant
stated
and
a whole
consideration
certain
might
the
emergencies
During
the
that
that
giving
of
the
they
rise
that
above.
(Graefrath).
SR 69 pr. 26
Ibid.,
the
the
of
this
respect
with
Report
to
applied
not
them
incompatible
96
ICCPR.
the
on
how
and
life
European
the
with
the
that
replied
the
agreed
measures
make
U. K.
to
be
to
to
that
information
emergency
considered
a
indicated
unanimously
further
considerations
the
threat
he would
that
decision
from
the
that
commented
in
question
juridical
the
had
questions
of
said
and
the
on
and
substantial
from
the
raised
events
nation
that
exist
gave
provisions
no
derogated
Mr. Movchan
the
4 it
article
applicability
representative
Rights
the
of
the
of
considered
did
nation
regards
provided
that
influenced
94
derogations.
The
"first-round"91
the
as
report
convinced
threatened
7.26
report
territorial
93
Finally,
the
concerning
that
During
which
measures
on the
92
in the ICCPR.
Two members
obligations
was
U. K.
the
of
was
noted
information
he
90
SR 69 pr. 31
(Tarnopolsky).
SR 67 pr. 27.
[T]he
"...
clear...
SR 70 prs.
existence
",
Ireland
of
v.
such
U. K.,
was
an emergency
EUCT, n. 36 above,
29-32.
Doc. CCPR/C/l/Add.
35, pr.
10
(1978).
...,.
Supplementary
concerning
the
procedures
and
use
the
consult
with
corpus.
Reference
Bennett
Committee
Northern
Ireland.
the
At
this
conclude
to
State
the
the
Bennett
its
than
that
Committee.
it
work
the
of
Procedures
In
replied
to
the
on
difficult
was
HRC's
the
habeas
report
details
100
some
to
right
of
representative
gave
put
interrogation
Interrogation
of
point
were
availability
made
and
the
otherwise
the
also
The
questions
98
confessions,
Police
put
of
of
and
On
99
recommendations
internment,
use
was
470
1979
of
counsel
questions
7.28
in
report
to
of
consideration,
the
in
Northern
Ireland
situation
manifestly
was
inadequate.
is
From any perspective
there
the situation
had
HRC
clearly
the
open to much greater
than
scrutiny
to it.
The International
accorded
Commission
of Jurists
States
the
study
on
that
of
emergency
suggested
inadequacy
having
in
of
the
HRC's
a greater
Northern
U. K.
litigation
7.29
On
awareness
Ireland
and
4 December
periodic
report
regards
article
1984
to
the
4
98
100
Cmnd. 7497
See
the
of
details
101
ECHR.
U. K.
of
HRC under
article
report
referred
the
the
submitted
its
not
situation
prevailing
of
the
to
Ireland
its
40(1)(b).
briefly
v.
second
102
As
to
in
December
internment
of
was ended
been
has
raised
of its
reintroduction
in November
bombings
in Enniskillen
The practice
1975. The question
the
recently
after
1987.
99
the
under
was due
consideration
(1979).
SR 148.
101
ICJ
For
material
and
study,
n. 1
above.
literature
in
Ireland
Northern
the
see
on
situation
Civil
Liberties
D. J. Harris
S. H. Bailey,
And B. L. Jones,
(2d,
Cases
Materials,
1985);
And
K. Boyle
and
ch. 4,
T. Hadden,
ICJ
n. 117 below;
pp. 217-246;
study,
n. 1 above,
Human
K. Boyle,
Rights
In
Resolution
Politicial
and
in YJPO,
Ireland,
Northern
n. 1 above,
pp. 156-177.
102
Doc. CCPR/C/32/Add.
(1984).
%-Li.
letter
of
United
the
the
date
stated,
inter
United
Kingdom
(of
notice...
deal
is
longer
no
Kingdom
to
itself
continue,
the
of
to
of
derogation.
taking
The
to
order
the
for
its
with
the'-United
to
time,
present
it
that
comply
derogation
of
account
conclusion
Covenant,
at
right
the
in
the
from
the
since
situation
to
taken
and in measures
the
come
under
withdrawn,
Government,
necessary,
obligations
had
that,
derogation)...
have
Secretary-General
notice
alia,
in
it,
with
U. K.
its
developments
of
the
the
notification,
the
'F7
notifying
that
Nations
of
notification
"...
1984
22 August
of
avail
article
under
4I103
7.30
the
For
the
"state
upon
of
of
104
7.31
Prior
questions
explanation.
Before
the
one
the
of
the
HRC the
periodic
report
specific
issues
it
that
HRC wanted
State
a number
alia,
the
concerning
the
HRC
the
inter
forward,
focus
would
before
appearing
were
issues
which
105
second
decided
to
and
upon
was
HRC
representatives
emergency
and
the
the
of
emergency"
which
attention.
State
consideration
State
of
information
further
stated
representative
that
the,
"Government
it
because
were
fully
That
did
emergency
103
derogations
same time.
104
105
had
withdrawn
believed
that
Ibid.
ch. 3,
mean
there
simply
that
there
prs.
was
had
derogation
the
United
the
8,
Ax. II,
15 ECHR were
3.25-3.27.
in
rights
that
Doc. CCPR/C/2/Add.
under
article
See
the
of
notice
throughout
observed
not
but
the
no
been
Covenant
Kingdom.
longer
changes
an
in
U. K.
The
p. 2.
the
at
withdrawn
the
taken
measures
deal
with
it",
Ireland
106
on
Northern
system
in
officers
for
7.32
the
the
After
investigating
Northern
number
of
members
range
of
views
than
critical
Diplock
106
SR 594
the
comments
made
issues
and
hitherto.
Courts;
of
was
Questions
110
convictions
Sir
George
108
and
against
complaints
109
Ireland.
statement
of
State
and
police
representative
put
raised
based
The
questions.
wider
much
were
the
giving
legislation,
Emergency
Ireland
in
and
Parliament
was
special
the
to
Northern
of
made to the two Acts
107
the
recommendations
powers,
Reference
Baker
in
situation
on
and
more
concerning
confessions
pr. 3.
107
(Emergency
Ibid.,
Ireland
The Northern
pr. 4.
Provisions)
Act
1978
Of Terrorism
Prevention
and the
(Temporary
has
Provisions)
Government
1984.
Act
The
indicated
A
that
latter
is
be made permanent.
the
to
number of applications
the 1978 and 1984 Acts
concerning
Coyle,
before
Brogan,
the
EUCM,
are
currently
see
11234/84,
A.
McFadden
Tracey,
EUCM,
Report
the
and
of
Campbell
Fox,
A. 11266/84
(14 May 1987);
and A. 11386/85
A. 12245/86
Hartley
and
U. K.,
A. 12244/86,
and
v.
C(88)45.
A. 12383/86,
Council
Release
Press
of Europe
108
Of The Northern
Ibid.
Review
Of The
Operation
(1984).
(Emergency
Cmnd. 9222,
1978,
Ireland
Powers)
Act
Of
Prevention
Of The
Review
See also
Of The
Operation
by
Viscount
1984
(Temporary
Act
Provisions)
Terrorism
See
(1987).
generally
Culross,
Cmnd. 264
Colville
of
Legislation
Of Emergeny
The
Use And Abuse
D. P. J. Walsh,
In British
(1983);
Of Terrorism
C. Walker,
The Prevention
Peacetime
In
Powers
(1986);
D. Bonner,
Law
Emergency
(1985).
109
110
Ibid.,
pr. 5.
(Graefrath).
See
(Lallah),
8
SR 594
pr. 6
Courts
S. C.. Greer
Abolishing
the Diplock
and A. White,
Offences
Jury
To Scheduled
The Case For Restoring
Trial
that
(1986).
Northern
Ireland,
In
Recent
suggestions
Continued)
(Footnote
-..
or
the
on
resolution
the
force
by
control
the
into
civilian
work
within
derogating
recommendations
Parliamentary
control
the
116
executive;
derogation;
by
the
Government;
Ireland
and
(Footnote
Diplock
rejected
111
the
to
the
of
of
legitimacy
being
solve
current
taken
the
of
of
powers
the
problems
the
115
the
of
period
to
recourse
of
in
to
than
rather
Committee;
emergency
possibility
action
fields
political
the
of
possible
implementation
consequences
the
thought
Bennett
over
determine
to
the
and the
use
112
forces;
inquiries
Covenant
the
of
Complaints
of
security
why it
was
the
of
Police
actions
provisions
114
them;
form
Covenant
and
113
deaths;
the
the
towards
progress
Question";
of
police
ill
accomplices;
"Irish
the
of
Boards;
of
evidence
i 22
.-1
taken
measures
the
social
of
the
and
Northern
violence
in
have
apparently
21/7/87.
The Times,
been
situation
of
Continued)
courts
by the
be reformed
would
Home Office,
see
Use
Of
the
T. Gifford,
Supergrasses
(1984);
Accomplice
Evidence
Ireland,
In
Northern
In Britain
Supergrasses
System
S. C. Greer,
And The Legal
(1986)
And
Ireland,
102
Northern
LQR
pp. 198-249;
Ireland
Northern
The
Rise
The
S. C. Greer,
And
Of
Fall
1987 Crim. L. R. pp. 663-670.
System,
Supergrass
See
112
9 (Movchan),
SR 594 pr. 7 (Lallah),
Sampson
See RUC Stalker
Investigations,
(25/1/88)
(House of Commons)
col. 21-23.
113
114
115
116
Ibid.
11
(Opsahl).
SR 594
pr. 13
(Cooray).
SR 594
pr. 14
(Pocar).
SR 594 pr.
12 (Opsahl).
1435 Hansard
CH. 7
Northern
Ireland;
determination
7.33
in
The
State
questions
its
the
use
again
(article
is,
6)
the
of
Mr. Movchan
clearly
the
views
"The
they
felt.
he
of
practice
to
The
right
the
non-derogable
was
life
comments
concluding
persuaded
not
a
had
representative
were
supervised
court
proceedings
life,
including
the
122
occurred".
not
their
under
relation
lives
of
far
so
active
control
There
to
as
that
admitted
own acts.
in
departure
clear
4 in
Article
of
in
situation
emergency
demonstrated
forces
security
of
that
the
provisions
Kingdom
of
representative,
of
Ireland
the
United
no
State
120
his
In
the
of
one
indicated
handling
from
law.
the
range
concerns
matter
course,
121
ICCPR.
the
of
Northern
that
under
their
make
the
the
felt
U. K.
to
able
119
ICCPR.
Two members
the
of
provisions
by
to
raised
firearms
of
to
self-
the
why
under
of
118
replied
indicated
and
matter
Ireland.
continued
Mr. Graefrath
the
Northern
derogations
HRC
the
and
representative
put
withdraw
of
117
500
the
children,
had
loss
which
the
the
and
been
of
had
117
The
594
(Prado-Vallejo).
SR
most
pr. 15
important
of the
the consideration
political
step
since
the
has been
U. K. 's second
conclusion
periodic
report
implementation
Agreement,
see
the
Anglo-Irish
and
of
Ireland
See also
K. Boyle
ch. 5, n. 73 above.
and T. Hadden,
(1985).
Positive
Proposal
-A
118
SR 594 pr. 42 (Wako).
See ch. 5, n. 73 above.
119
SR 594
prs.
16-33.
120
to the
Northern
O. P.
4(2)
Covenant,
Article
above.
of the
see pr. 7.1
Of Non The Right
To Life
And The Rule
See W. P. Gormley,
in
Peremptory
Cogens,
Norms
Of
Jus
Derogability:
(ed. ),
(1985).
The Right
To Life,
Ramcharan,
pp. 120-159
122
SR 598
pr.
30.
CH. 7
7.34
On
Ireland
was
of
the
of
consideration
bodes
for
well
terms
practical
the
HRC in
light
it
appears
that
and
subsequent
HRC's
future
work
See ch. 3,
periodic
under
prs.
the
and
second
U. K. 's
the
second
123
U. K. 's
article
3.25-3.28
it
review
U. K.
the
reports
40.123
above.
and
Northern
during
critical
periodic
initial
of
is
implementation
the
of
to
respect
impressive
more
much
consideration
foregoing
the
consideration
4 ICCPR with
article
during
of
the
that
submitted
of
basis
the
501
the
report
This
report.
fact
that
consideration
will
than
dominate
in
of
the
4 under
Article
7.35
Article
the
HRC's
the
those
in
where
Uruguay
have
been
the
has
often
made
in
emergency
its
approach
Ramirez
"The
Human
Rights
4)
not
submissions
issues
raise
does
Covenant
circumstances".
7.36
This
view
consider
ex
4 even
when
the
officio
the
under
State
possible
does
See also
the
consideration
in SR 355,356,357,359
reports
ICJ Study,
n. l above.
126
Doc. A/35/40
Ibid.,
pr.
p. 121.
17.
any
in
the
to
Prompt
(article
from
defined
'not
such
referred
to
which
the
from
derogation
that
any
made
justify
facts
provisions
any
under
HRC
the
application
of
will
article
rely
not
specifically
and
Uruguayan
the
of
the
373 See also
124
125
for
the
to
the
indicates
party
not
referred
has
law
allow
clearly
facie
measures
in
strictly
some of
not
126
whether
Covenant
Government
in
,
view
derogating
or
Moreover,
established
including
the
of
state
could
has
law,
fact
of
the
Covenant
the
124
Uruguay.
prima
are
Government
the
and
security
considered
Covenant,
except
circumstances,
have
its
by
has
national
provisions
above
now
However,
allow
derogation.
The
under
Measures.
does
its
the
Uruguayan
of
Security
to
which
The
circumstances.
provisions
reference
Committee
with
justified
be
in
exemplified
treatment,
any acts
and
in
conformity
reason
is
HRC
125
Uruguay,
v.
general
the
under
"prompt
emergency
submissions.
the
of
of
situation
rights
of
of
high
communications
application
state
number
the
of
The
alleged.
O. P.
concerned
violations
the
under
measures"
5(4)
have
multiple
in
considered
article
views
concerned
generally
been
under
views
of
Uruguay
has
4 ICCPR
proportion
ICCPR
O. P.
Lx.
it.
upon
The
proof
The
no
more
than
of
fact
or
Such
an
to
below
Uruguay128
justify
its
(2)
derogations
ICCPR
notification
it
HRC's
if
of
4(3)
defence
-Silva
party
could
article
4(1)
the
with
complied
article
raising
evidence
in
State
not
do
concerned.
body of
rights,
have
would
view
terms
had
under
from
the
it
that
requirements
preclude
derogations
under
fact
the
a human
that
suggests
alleged
burden
of
submit
derogations
The
possible
HRC could
the
to
be
would
the
places
of
part
127
it.
for
party
for
commend
Covenant
the
the
on
justifications
little
not
justifying
what
were
presumably
State
the
approach
inviting
and
invite
law
so
party
is
there
clearly
view
above
State
the
on
the
under
violations.
if
HRC
the
of
approach
justifications
503
raised
question
obvious
the
ICCPR would
based
on its
derogations.
7.37
In
Silva
expressly
victims
relied
affairs,
service).
No. 4 of
to
130
of
Uruguay
of
had
to
citizens
have
article
1(a)
the
alleged
victims
engage
because
they
had
the
been
certain
in
candidates
political
take
of
in
the
to
alleged
25
public
public
Act
Institutional
deprived
been
had
vote
party
article
part
for
fifteen
for
elective
in
the
groups
of
political
of
activity
to
The
violated
access
any
right
4.
article
Under
to
of
terms
and
including
lists
the
State
the
Uruguay129
vote
nature,
the
v.
that
1/9/76
right
Others
on
claimed
(the
right
ICCPR
the
and
years
office
1966
127
on
and
that
the EUCM stated
In McVeigh
et al.
v. U. K.,
in
the
is
country
there
a
critical
situation
where
into
15
it
take
article
will
not
concerned,
by
the
if
it
been
has
upon
relied
not
consideration
15.
R.
Government,
8022/77,25
D.
&
A.
p.
respondent
128
129
130
Doc. A/36/40
p. 130.
Doc. A/36/40
p. 130.
For
the
text
of
article
25 see
below.
Apx. I
below.
131
1971
elections.
been
declared
illegal
7.38
Uruguay
submitted
from
the
ICCPR
United
the
4(3)
The
by
Nations
of
132
Moreover,
ICCPR.
"Article
25,
of
Government
to
7.39
political
Government
The
the
HRC.
to
accept
The
that
4(1)
had
been
4(1)
and
the
article
After
the
terms
of
article
However,
time.
The
existence
derogations
noting
by
submitted
in
Uruguay
under
note
emergency
knowledge";
nature
actually
by
were
the
Government
of
would
Doc. A/36/40
See
Human
Doc. A/36/40
to
resorted
the
Covenant,
strictly
be provided
p. 130 at
Rights
p. 130,
pr.
in
p. 131,
6.
to
necessary.
declared
Uruguay
was made
of
show
Status,
the
the
that
Instead,
that
connexion
note
to
regard
or
"a
was
scope
with
that
stating
no attempt
the
at
given
were
situation
and
an
was
which
"Institutional
to
the
derogations
information
country
itself
confined
of
guaranteed
the
a number
of
factual
details
no
to
made reference
in
such
pp. 84-85.
133
unable
in
of universal
matter
indicate
the
to
132
felt
forth
acknowledged
Acts".
131
it
that
to
set
situation
legally
rights
relating
information
further
view
has
to*do,
the
emergency
the
the
some provisions
HRC stated
that,
Government
has
of Uruguay
"The
that
a right
has
in
mentioned
not
it
the
notification
4(3)
article
is
the
of
requirements
the
met.
article
Accordingly,
no
HRC expressed
of
with
4(2).
from
133
submitted
derogated
authors
case,
as
parties".
had
Secretary-General
the
article
derogated
it
accordance
their
Uruguay,
of
temporarily
in
subsequently
Government.
that
the
which
argue
text
HRC
this
on
communication
the
the
informed
had
and
Uruguayan
the
to
had
concerned
groups
more
with
the
(a).
n. 42
above,
Ln.
the
of
submissions
be
This
account
the
approach
the
HRC
information
7.40
The
HRC
has
article
this
report
it
was
which
HRC
the
take
will
in
4 submitted
under
with
take
by
article
accord
to
known
that
parties
to
seem
under
neither
information
concerning
States
of
would
allows
the
134
information
reports
reports
To date
supplemented".
indicates
approach
of
505
country's
40 of the Covenant.
been received,
nor
to
40. This
article
common
of
account
it
as
sense
relevant
all
it.
to
continued
following
the
with
critically
important
passage,
"Although
the
declare
state
in
yet,
sovereign
of
the
that
existence
to
detailed
the
under
Rights
Protocol,
Committee,
to
their
to
assess
whether
in
article
4(1)
134
Ibid.,
it
to
commitments
If
pr.
the
the
it
the
8.2.
the
of
parties
the
Covenant
needs
respondent
full
and
party
it
proceedings
Covenant.
of
to
when
the
States
that
a situation
of
in
function
on
sufficiently
facts
under
under
concerned,
information.
is
State
Covenant
acting
see
to
country
It
depend
pursuant
the
give
by
substantive
may'not
relevant
the
of
Protocol.
the
undertaken
made
to
the
cannot
the
Covenant,
the
4(1)
of
invoking
has
being
duty-bound
article
it
measures
of
is
Committee
Although
derogating
account
present
circumstances,
Covenant.
is
concerned
the
of
merely
which
notification
4(3)
the
of
article
invokes
by
obligations
take
formal
State,
to
party
questioned,
not
context
exceptional
the
ratifying
is
Human Rights
of
the
evade
right
the
a State
of
emergency
specific
communication,
opinion
right
Human
the
Optional
live
In
up
order
kind
described
exists
in
the
comprehensive
Government
does
not
%. ai.
furnish
the
Protocol
and
Human
normal
This
HRC's
legal
that
State
to
provide
HRC,
and
justification,
not
be
function
Covenant.
acknowledging
a state
burden
the
"full
a
of
More
the
of
is
proof
on
respondent
State's
legitimate
under
the
in
the
clear
respondent
to
default
derogations
the
the
generally,
asserts
of
the
135
informat-ion"
that,
warning
Covenant".
O. P.,
the
valid
from
assertion
comprehensive
sovereign
emergency,
the
strong
under
and
definite
as
by
prescribed
the
that
departure
Optional
Covenant,
conclude
is
it
as
the
of
the
of
cannot
represents
the
accepted
136
4(3)
regime
assessment
4(2)
legitimize
to
exist
itself,
article
Committee
passage
statement
under
article
Rights
reasons
the
do
to
Z) p--
justification
required
required
terms
of
will
of
HRC,
the
while
to declare
a State
of international
a measure
right
of
135
in
De Montejo
v.
Similarly
Ibid.,
pr. 8.3.
bound,
is
duty
"[T]he
State
Colombia,
party
concerned
in
invokes
(1)
Covenant
it
4
the
article
of
when
to
the
Optional
Protocol,
give
a
under
proceedings
facts
to
detailed
the
relevant
account
of
sufficiently
in article
kind
described
of the
show that
a situation
in the
4(1)
concerned",
exists
of the Covenant
country
Doc. A/37/40
p. 168, pr. 10.3.
136
O. P.,
See generally
on the burden
ch. 4, prs. 4.27-4.35
above.
of
proof
under
the
V11"
supervision
that
over
approach
closely
7.41
HRC then
the
The
Uruguay.
assumption
It
it
could
ground
it
order,
not
who as members
candidates
in
political
EUCT.
the
of
138
situation
did
emergency
that
view
This
on
in
exist
even
on
that
see,
be
could
was
the
consider
the
in
that,
contention
of
to
State
expressed
"what
any
137
determination.
that
proceeded
that
our-
national
parallels
assumption
to
order
to
of
political
the
rights
of
elections
for
peace
all
1966
and
as
and
citizens,
groups
period
the
support
restore
deprive
necessary
certain
to
adduced
been
-had
1971,
of
long
as
15
137
"It
falls
in
to
first
the
each
place
'life
State,
its
for
the
contracting
with
responsibility
[its]
is
life
determine
to
that
of
nation',
whether
far
by a 'public
how
if
threatened
so,
emergency'
and,
it
is
the
to
to
necessary
overcome
go in
attempting
By reason
direct
their
continuous
and
emergency.
of
the
the
the
with
moment,
contact
pressing
needs
of
better
in
in
a
authorities
national
are
principle
both
decide
international
judge
than
the
to
on
position
the presence
and
of such an emergency
and on the nature
it.
In
derogations
this
to
of
necessary
avert
scope
15(1)
leaves
Article
those
a wide
authorities
matter,
do not
the States
Nevertheless,
of appreciation.
margin
in
The Court,
this
an unlimited
power
enjoy
respect.
for
is responsible
the Commission,
with
ensuring
which,
is
(Art. 19),
the States'
the observance
of
engagements
to rule
the States
on the question
empowered
of whether
beyond
'extent
have
by the
the
gone
required
strictly
the
domestic
The
of
of
exigencies'
crisis.
margin
is
thus
European
by
appreciation
accompanied
a
.
K. v. Ireland,
supervision",
pr. 207.
n. 36 above,
CH. 7
This
years.
measure
distinction
to
as
political
to,
by
or
emergency
Here
in
party
terms
of
its
foregoing
the
prohibition
on
under
rights
to
view
In
action
police
investigated
of
139
140
141
in
unjustified
by
the
the
ch. 8,
142
pp. 148-149.
an
existing
Ibid.,
prs.
Doc. A/37/40
prs. 8.17-8.20
For
the
p. 130,
the
party
in
(G's
had
been
inadequately
by
siege
recourse
actions
certain
of
course
of
the
that
justified
been
been
had
Criminal
defeated
had
the
husband)
raid,
with
steps
persons
the
the
again
which
pr.
of
their
authorities.
No. 0070
state
to
State
the
author
were
Law
party
that
take
in
police
in
the
restricted
other
and
Decree
Doc. A/36/40
the
cases
of
basis
view
to
Colombian
police
context
to
State
the
State-
participate
140
the
was
by
operations.
back
of
that
and
seven
by
The
alleged
way
On the
the
ICCPR
to
and
Decree
the
142
the
the
on
unreasonably
nation.
Legislative
taken
show
dissent
proportionality
terms.
Colombia141
into
investigations
a
the
killed
arbitrarily
those
them
to
political
the
an obligation
v.
violent
failed
actions
is
onus
25
of
that
and
authors
under
Guerrero
the
expressed
article
life
alleged
to
the
enabling
political
7.42
in
HRC
therefore,
was,
the
and
measures
of,
with
by
or
139
necessity
applied
measures
justify
of
pave
.
assessing
HRC is
the
has
his
promote
use
deal
to
and
freedom"
political
the
kind
without
means
Uruguay
any
situation
to
peaceful
of
order
everyone,
sought
advocating
in
required
he
whether
The Government
means.
interdiction
the
of
is
to
applies
opinions
resorting
508
in
introduced
in
Colombia
the
and
8.4.
9-10.
The
p. 137.
below.
text
of
case
the
is
also
Decree
considered
see
ibid.,
%-n.
had
been
143
Court.
in
its
as
upheld
State
The
HRC decided
the
at
all,
the
those
involved
Decree
Law
criminal
either
it
was
instituted
The
filing
of
7.43
The
took
an
of
to
and
declared
in
the
the
19
articles
21
article
observed
143
144
145
146
in
such
"temporary
that
effect
of
2
paragraph
of
the
case
Ibid.,
pr. 3.2.
Ibid.,
pr.
p. 137,
could
the
views
the
took
have
(freedom
of
note
4(3)
of
existence
since
extraordinary
The
the
it
of
territory
measures
limiting
notification
been
adopted
application
of
expression)
146
The
assembly)".
and
either
of
concerned
4.
pr.
party,
article
adopting
5.
Doc. CCPR/C/2/Add.
Doc. A/37/40
to
a situation.
not
and
under
of
was
any
situation
national
peaceful
on
its
No. 0070
referred
with
(right
to
Decree
necessity
or
precluded
formulating
the
on
suit.
Colombia
all
effect
proceedings.
accused
reference
notification
that,
have
in
of
deal
to
all
that
order
siege
the
It
no
action
civil
administrative
the
of
That
measures
that
of
notification
state
1976
military
stated
public
145
ICCPR.
with
or
account
the
conjunction
a civil
disturbed
of
no
was
case.
injured
the
that
acquittal
HRC
by
acknowledged
in
ultimate
had
the
this
the
proceedings
brought
action
although
be
civil
if
and
act
siege
if
only
invoked
trying
of
state
replied
case
operation
Tribunal
or
administrative
affect
Colombia
party
the
if
"[H]ow,
in
State
The
of
the
Decision'
to,
as
the
decision
that
'Interim
an
police
Military
that
submitted
was
the
Supreme
the
proclaimed
would
justification
the
In
information
siege
in
by
accepted
HRC.
siege
144
case".
of
in
to
referred
of
present
state
had
request
state
the
affected
that
to
the
by
the
to
: U7
constitutional
party
submissions
12.2.
with
HRC
CH. 7
that
510
4(2)
those
articles
Covenant
were
non-derogable
several
invoked
had
been
7
6
which
and
147
the facts
The HRC then examined
and
articles
author.
the
view
and
article
rights
that
violated
had
subsumed
two
[the
6(l)
article
in
been
under
and
respects
the
within
to
right
that
more
any
life]
further
serious
of
the
including
by
the
expressed
had been
violations
violations
of
6.148
article
147
Ibid.
See
chs. 8
(article
6)
below.
148
See ch. 8,
prs.
8.17-8.20
below.
and
(article
7)
CH. 7
149
APPRAISAL.
7.44
Of
87
the
1988)
April
of
States
other
is
4 then
parties.
General
initial
reports
151
derogations.
This
for
responsibility
to
respect
4.
the
under
have
extent,
by
adopted
Unfortunately,
4.
the
brief
rather
Its
Comments
the
the
to
and
unofficial
invaluable
4 and
article
bear,
the
to
the
more
just
of
to
could,
Comments
ICCPR.
its
the
its
pr.
7.15
151i
152
153
n. 86
above
above.
See n. 1 above.
See n. 1 above.
and
G. C. 5/13
General
in
application.
Siracusa
the
represent
of
application
analysis
(1981)
See Hartman,
pp. 40-52;
n. 1 above
And
The
Human
Committee
Rights
Walkate,
in Yale
JWPO, n. 1 above,
Emergencies,
pp. 133-147.
See
above.
of
applicable
149
150
be
understanding
Standards153
critical
one
article
on
would
its
in
and
some
adopted
It
this
of
element
Comment
interpretation
a more
to
submitted
only
above.
if
parties
Paris
facilitate
of
40(4)
date
to
do
content
General
the
noted
to
as
an
article
indicated
However,
reference
absence
by
its
regards
and
no
4
of
article
and
limitations
concerning
and
aids
form
General
States
attempts
Principles152
has
been
HRC had
content
principles
The
have
terms
help
HRC
inadequate
and
immense
of
HRC
article
information
The
good
under
ICCPR.
must
article
been
made
a number
as
contained
inadequate
the
work
the
on
absence
in
concerned
the
of
of
of-emergency
into
entry
since
importance
Guidelines
adopted
states
HRC's
The
of major
implementation
the
its
with
State
the
150
1st
of
notification
existed
obviously
in
noted,
have
for
ICCPR
while
(as
ICCPR
given
4(3)
article
or
the
have
them
exist
the
of
role
to
to
parties
of
under
known
force
States
12
derogations
are
511
pr. 2,
of
the
Jaap
A.
Public
cited
in
%.n.
implementation
of
article
that
on
the
experience
under
the
reporting
do
to
a second
7.45
have
We
in
Comment
information
of
this
much
obtaining
States
by
provided
the
of
clearer
HRC's
the
the
of
point,
however,
the
and
the
its
worst
157
report;
we have
worst
be
can
no
been
directed
article
to
in
that
ICCPR
be
must
of
of
foregoing
review
indicates
by
procedures
adopted
found
no information
questions
the
noted
already
4
the
light
situation
the
of
in
their
consideration
156
ICCPR.
Notwithstanding
the
articles
the
summary
its
General
clarity
155
In the
HRC has
of
context
other
of
to
comes
4.154
its
its
1981)
parties.
of
its
HRC's
lack
the
HRC should
on article
to
the
Moreover,
in
understood
(up
of
considerations
the
when
the
picture
concerned.
considerable
procedure
States
work
its
is
It
parties.
of
noted
4
article
it
noted
which
States
comment
general
already
under
experience
by
similar
something
preparing
511
basis
submitted
attempt
made
or
best
the
put
At
HRC.
the
in
comments
this
State
the
by
members
4;
inadequate
article
sporadic
and
inadequate
questioning;
replies
representatives
of State
158
to supply
the failure
or no reply
at all;
of States
159
information
in
the
Supplementary
Reports;
such
regarding
absence
154
Comment
comment
155
156
157
Add.
of
HRC procedures
determine
to
have
Members
that
suggested
4 should
be adopted.
on article
is in preparation.
G. C. 5/13,
See pr.
E. g.,
pr.
2,
7.9
above.
the
initial
in
cited
USSR
or
whether
second
However,
pr. 7.15
above.
Doc.
report,
not
General
no such
CCPR/C/1/
2.
158
the representative
E. g.,
of
did not reply
to questions
concerning
pr. 13 (Vincent-Evans).
159
promised
have
States
parties
Supplementary
Reports.
often
(SR 203,204)
Iraq
4, SR 199
article
failed
to
supply
CH. 7
have
questions
failure
from
States
reports
160
emergency;
no
formal
requirements
of
article
ad-hoc
satisfied
of
attention
can
be
emergency
and
the
more
162
above.
a better
light
been
being
it
4
article
periodic
continued
be
160
161
162
163
164
Principle
165
is
was
is
on
the
in
clear
then
See ch. 3,
ICJ
See prs.
the
range
on
view
of
extensive
but,
of
second
noting
of
responses
HRC's
the
of
states
that
the
article
4(3)
from
States
165
years.
HRC sees its
earlier
of
compliance
and
made use
worth
that
role
States
parties
See
Siracusa
above.
n. 1 above.
7.23-7.34
above.
above.
ch. 3,
prs.
n. 1 above.
3.12-3.18
7.19-7.22
above.
See prs.
The
considering
3.8-3.8.1
study,
prs.
the
when
more
the
took
clearly
importance
evident
examining
Cf.
also
eliciting
quite
of
It
examined
an intelligible
not
information
of
been
for
have
members
put in
have also
are
subjected
Kingdom
they
163
of
as,
consideration
Members
stress
than
that
the
they
164
to
has
state
be
United
individual
members
manner.
emergency.
It
the
until
sources
parties
with
that
clear
being
violated.
by
put
systematic
appears
exacting
There
analysis
quite
was
reports
outside
and
generally
on
therefore
can
during
reports.
focused
adequately
case
unfortunately,
as
the
have
4(2)
periodic
situation
the
made
questions
7.47
of
whether
article
in
second
more
More
occasions
of
States
of
(3)
and
of
appear
critical
was
example,
that
(1)
requesting
undergoing
determinations
HRC procedures
The
consideration
to
for
161
violated.
7.46
parties
the
reply;
procedures
terms
the
or
satisfactory
develop
HRC to
the
of
received
513
above.
s-LL. 1
with
the
been
no
provisions
of
question
of
determinations
conclusive.
article
simply
accepting
the
national
of
167
it
However,
is
is
made
jurisdictional
on
There
4 by
resolving
two
that
questions
has
judgement
the
and
authorities
the
as
foresee
to
supervision
article
of
166
ICCPR.
difficult
international
effective
implementation
514
the
of
HRC unless
were
progress
fundamental
the
of
more
in
raised
chapter
3.168
7.48
Firstly,
request
of
matter
meant,
in
Poland
in
force.
of
The
decision
for
jurisdiction
(b)
in
that
decision
it
when
the
whether
General
comments
of
167
168
169
170
171
16-17
to
under
to
ICCPR.
harsh
members
and
they
71,
n. 1 above.
See Siracusa
Principle
57,
n. 1 above.
3.29-3.38
second
is
to
individual
Principle
prs.
its
40(4)
See Siracusa
See ch. 3,
it
formal
resolution
specific
However
individual
clear.
article
an
full
the
170
but
awaits
the
be
exercising
'71
The
40(1)(b).
addressed
on
could
take
make
Salvador
yet
not
consider
competence
the
El
HRC
which
Comments
to
166
will
article
HRC has
parties
are
the
question
HRC to
the
jurisprudence
the
for
of
Covenant
the
of
emergency
it
HRC while
was
of
to
this
resolve
state
the
information
under
jurisdictional
by
decision
40(1)
to
the
to
undergoing
parties
failure
that
considered
preferable
on
HRC's
recent
of
be
would
prs.
never
development
implications
States
example,
article
important
The
for
request
basis
the
from
emergency.
was
169
specific
states
reports
ad-hoc
states
make
the
jurisdiction
has
HRC
whether
critical
could
not
above.
See n. 70 above.
See ch. 3.,
See,
and
pr. 3.8.1
e. g. , the
Tarnopolsky
above.
proposals
of Opsahl
in SR 404 prs. 95-99.
in
SR 349
CM. ]
compare
a determination
with
4
article
was
(a
of
number
Of
States
critical
and
7.49
The
structured
complemented
that
have
clearly
put
State
to
4.173
article
by
show
the
HRC's
of
under
the
reporting
burden
the
an
parties
strictly
and
the
7.50
It
critical
of
and
terms
the
See
Siracusa
the
of
question
States
parties.
173
174
175
176
177
is
to
approach
reasons.
emergencies
human rights.
prs.
for
to
above.
above.
in
the
174
above.
commitments
are
provisions
proportionality
4.176
take
the
HRC to
the
implementation
Firstly,
as
grave
present
177
Secondly,
above.
4.23-4.26.
7.41-7.43
HRC
derogating
their
necessity,
in article
7.35-7.36,7.40
ch. 4,
has
missions
.
"to
see to
assumed,
is
interesting
It
n. 1 above.
do
Principles,
n. 1 above,
General
Comments
addressed
See prs.
See
of
up
important
two
public
securing
172
of
restrictive
noted,
O. P.
The
the
on
Derogations
limitations
crucially
the
fact-finding
live
in
for
more
opportunities
role
Covenant".
article
already
for
was
much
of
requirements
dictated
necessarily
is
and
175
specific
On
the
with
supervisory
examined
in
HRC)
process.
fact-finding
minimal
it
the
the
'Study
under
proof
approach
hearings
under
of
compliance
States
by
appraisals.
absence
of
oral
An international
that
States
selected
presented
HRC
Such
The
compare
Jurists,
the
approach
respect
certain
of
latter
that
with.
considered
Commission
172
The
Emergency'.
this
of
been
have
International
the
in
review
a body
HRC as
complied
HRC
the
which
the
being
the
with
unfavourably
by
not
of
considerations
515
to
not
to
we
have
problems
in view
that
note
this
cover
individual
CH. 7
of
and
its
judicial
by
opinion
itself
constructive
government
HRC.
to
180
181
be
can
in
Where
those
bear
can
on
faith
good
which
public
elements
achieve
national
the
is
to
and
in
and
of
emergencies.
cooperation
with
good
most
stimulate
international
(1981),
bring
to
can
assistance
Hartman,
respected
and
considerable
lacking
are
through
body181
of
acting
will
independent
an
analysis
considerations
179
as
rights
cooperation
178
the
human
analysis
pressure
of
the
reporting178
179
"[t]he
most
is
to
a
adopt
influence
world
18 0
Despite
and thoroughness"
.
HRC's work above the HRC has
that
attitude
made
do
can
objectivity
criticisms
established
international-
the
its
under
procedures,
communications
bodies
implementation
scrupulous
That
both
powers
individual
the
the
limited
very
516
p. 49.
faith
the
international
publicity.
and
HRC's
CH. 8.517
8.
CHAPTER
6:
ARTICLE
THE
RIGHT
8.1
Article
6.
(1)
Every
human
being
has
right
shall
be
protected
This
deprived
arbitrarily
(2)
In
TO LIFE.
inherent
the
by
law.
life.
to
right
No one
be
shall
life.
his
of
death
the
abolished
for
the
only
sentence
of death
may be imposed
penalty,
in accordance
the law in force
most serious
crimes
with
at
countries
the
time
to
the
of
to
contrary
the
Crime
not
the
of
the
on
the
of
commission
provisions
Convention
the
have
which
and
crime
not
present
Covenant
and
and
Punishment
of
Prevention
be carried
can only
penalty
judgement
to a final
out pursuant
court.
of a competent
(3) When deprivation
life
the
of
crime
of
constitutes
it
is understood
in this
that
genocide,
article
nothing
the
1
UDHR,
Genocide.
of
The
ECHR,
drafting
the
ch. VI,
Art.
of
pp. 113-146.
On
Y. Dinstein,
Integrity
And
Liberty,
(1981);
G. P. Fletcher,
Review
(1979)
pp. 239-280;
pp. 511-534;
(1981)
(ed.
Issue
Rights
),
Human
The
Right
In
To
Life
The
To
World
Before
The
R. Lillich,
In
Order?
United
Nations,
Civil
Rights,
International
As
ch.
Basic
Georgia
12
Law
By
NYUJILP
As
RDH/HRJ
T. Meron
p. 115
at
And
Theory
The
(1985);
4
in
Law,
Human
pp. 114-127
Punishment
Capital
The
Killings
Mass
L. J. MacFarlane,
Rights,
13
Life,
Legal
),
(ed.
ICCPR,
E. Lane,
L. E. Landerer,
Rights
Human
of
Right
Physical
Life,
The
Amnesty
Governments,
By
L. Henkin
Rights
The
(1984);
pp. 120-124
Practice
Of
pp. 1371-1394;
Lawful
Governments:
in
A/2929,
see
To
On
'Guide',
Bossuyt,
Killings
art.
AFR.
Docs.
life
Right
art.
general
to
right
The
Bill
International
in
AMR,
85-121;
prs.
the
art.
see
Political
(1983);
Human
in
recognized
also
1 ADRD,
A/3764,
International,
(1979)
is
article
l-10,
prs.
life
to
right
2
art.
This
F. Przetacznik,
Right,
(Footnote
RDH/HRJ
Continued)
CH. 8.518
the
way
from
of
the
Convention
(4)
Anyone
or
in
pardon
or
by
shall
(6)
be carried
in this
Nothing
the
prevent
to
party
of
present
right
to
the
to
right
Amnesty,
sentence.
of death
may be
sentence
be
not
article
shall
years
crimes
and
of
age
to
delay
women.
invoked
be
capital
for
imposed
eighteen
on pregnant
of
and
the
out
abolition
the
the
below
not
under
Prevention
have
shall
shall
persons
assumed
the
on
Covenant
present
obligation
death
of
granted
all
cases.
(5) Sentence
of death
the
Genocide.
commutation
commutation
committed
any
of
to
sentenced
pardon
seek
Crime
the
of
to
party
any
provisions
Punishment
State
any
shall
authorize
in
to derogate
by
punishment
or
any
State
the
ICCPR
Covenant.
Introduction.
8.2
The
is
which
(1983)
Life
In
Of
P. Sieghart,
The
pp. 128-135
(1983);
(1983)
below;
Of
1984/50.
The
Discrimination
failed
proposal
ICCPR
Rev. ICJ
"
U. N.
every
its
at
to
most
aimed
(1987)
ECHR - Collected
at
abolishing
p. 29.
Texts,
Cf.
the
Protocol
pp. 46-49,
To
The
Human
of
Field
Of
Of
ECOSOC
Penalty,
On
(1987)
optional
death
No. 6
(1987)
6-8
chs.
Protection
Protection
second
Right
UN Rapporteur,
of
Death
session
The
In
Guaranteeing
The
recent
elaborate
Law
Sub-Commission
and
30
Law,
Action
The
Life,
N. Rodley,
Report
Facing
U. N.
The
International
pp. 129-133;
Those
(ed),
International
ECOSOC Safeguards
Rights
To
(1985);
Law,
Under
Right
The
B. G. Ramcharan
Prisoners
Rights
Resn.
in
"inherent"
B. G. Ramcharan,
pp. 297-329;
Of
(1987);
The
in
right
be
to
International
Treatment
n. 28
only
Continued)
NILR
Human
the
stated
pp. 585-609;
Rights,
is
expressly
(Footnote
(1976)
life
The
Prevention
of
Minorities
to
protocol
penalty,
to
the
on
act
to
see
ECHR,
the
39
in
CH. S.
being.
human
supreme
from
nation".
article
The
6 and that
importance
6 can
article
only
emergency
Only
one
article
comments.
coincided
international
protection
widespread
is
the
the
violations.
rights
permitted
has
right
7
Many of
the
commentators
life
the
to
'is
that
right
law.
international
of
the
to
in
to
is
regional
for
the
the
general
6 has
article
in
life
to
"time
a,
two
of
subject
of
concern
institutions
rights
ICCPR
it
that
HRC under
the
of
increased
the
fact
the
the
"the
reservation
5
withdrawn.
HRC has
attached
the
from
as,
life
the
article
in
even
made
subsequently
which
on
it
under
threatens
State
be
work
the
of
which
was
human
of
one
Comment
described
HRC
gauged
has been
which
The
with
General
the
derogation
no
public
first
40(4)
3
is
It
right".
which
its
In
article
under
of
519
and
the
face
of
suggest
n. 1 above
customary
of
part
G. C.. 6(16),
Doc. A/37/40
pp. 93-94;
21/Add. l.
by the
HRC at
Adopted
Doc. CCPR/C/
discussion
(July
1982).
HRC's
For
the
meeting
369,370,371
and 378 Addl.
in
also
its
378th
see SR
in ch. 7
is dealt
4 ICCPR, which
See article
with
has
15
Gormley
Cf.
ECHR.
argued
Professor
article
above.
jus
life
6(1)
in
to
the
represents
that
right
article
Rule
The
And
P.
Gormley,
Life
W.
To
The
Right
see
cogens,
in
Peremptory
Norms of Jus Cogens,
Of Non-Derogability:
(1985),
Ramcharan
n. l above,
pp. 120-159.
5
A/40/40
Doc.
14(23),
3
C.
G. C. 6(16),
G.
n.
above;
by
the
in
4.
Adopted
162-163;
Doc.
CCPR/C/21/Add.
also
pp.
(November
1984).
563rd meeting
HRC at its
6
14(23),
Doc. A/40/40
G. C.
G. C. 6(16),
n. 3 above;
by
the
in
4.
162-163;
Adopted
Doc.
CCPR/C/21/Add.
also
pp.
(November
1984).
563rd meeting
HRC at its
7
See
pp. 129-133,
Human
the
UN Action
In
The
(1983);
Reports
of
Rights
Commission
Of
Field
Special
the
Summary
on
Rights,
Human
Rapporteur
of
Arbitrary
Or
(Footnote
Continued)
CH. 8.520
6 Under
Article
8.3
In
the
been
The
consideration
accorded
State
of
has
that
and
Process.
reports
importance
critical
interpretation
vital
Reporting
wide
ranging
matters
6 is
realms
of
article
8
bounds
Within
the
apparent.
identified
articles
as having
6 include
with
article
articles
following
The
of
words
are
the
HRC's
the
rationale
bear
useful
article
behind
the
nor
minimum
of
In
approach
"...
of
exercise'all
its
General
to
which
other
comment
Committee
information
die
must
neither
a
receive
housing
care,
must
undoubtedly
life,
to
right
an
the
and
material
10
freedoms",
were
this
HRC supported
the
the
the
right
broad
6,
article
the
to
was
between
requirements
brought
health
education,
member,
which
with
rights
had to
individual
he
and
There
and
clothing.
interconnexion
to
birth
after
food,
an
he
the
of
examination
indicate
they
an
the
within
HRC
because
to life,
on the right
"In order
to, exercise
any of
Committee
the
was concerned
to exist,
and in order
exist,
before
former
perspective
wide
many
relationship
and 20.9
7,9,10,14
to
of
itself
ICCPR
a particular
wide
immediately
not
the
precursor
to
approach
perhaps
of
inclusion
whose
the
Mr. Ganji,
and
discussion
permitted
6 has
article
has
given
noted
that
concerning
quite
article
often
the
has
been
Continued)
(Footnote
E. Lane,
latest
Doc. E/CN. 4/1987/20;
Executions,
report,
Extrajudicial
E. Kaufman
Fagen,
and P. Weiss
n. 1 above;
Of A
Dimensions
An Insight
Into
Executions:
The Global
3(4)
Violation,
Human Rights
HRQ (1981)
pp. 81-100.
8
See
in
particular
the
works
by
Ramcharan,
n. 1
above.
9
10
of
in
below.
consideration
of the Indian
of the report
Supreme Court
CH. 8.
limited
to
is
It
only
one
right
or
521
other
which
aspect
should
this
of
right.
interpreted
be
not
narrowly.
...
has
been
too
to
parties
infant
take
mortality
in
especially
malnutrition
of
the
reports
by
supplied
has
years,
how
life.
to
right
their
12
members
all
possible
and
to
life
has
States
parties,
generally
been
dealt
the
with
HRC but
'understanding
attempted
how States
of
eliminate
by
all
almost
information
in
confined
an
to
gain
have
reduce
to
particularly
to
States
expectancy,
the
legal
outlaw
respective
systems
its
State
In
of
consideration
have
to
life
measures
"
been
to
submitted
for
measures
adopt
Committee'
the
desirable
the
and
States
that
increase
epidemics".
properly
manner,
be
would
The
cannot
connexion,
adopting
and
life'
requires
this
life
to
right
interpreted.
restrictive
In
it
that
considers
to
right
measures.
positive
The
this
of
the
narrowly
right
in
protection
8.4
often
understood
that
noted
'inherent
expression
be
has
Committee
the
the
early
indication
taking
the
approached
of
reports
much
and
of
HRC
deeper.
dealt
11
A
(my
1,5
G. C. 6 (16) , n. 3 above,
emphasis).
prs.
to
the
reference
make
other
general
of
comments
number
see
States
to
take
measures,
on
positive
requirement
SR
2.
See
6.11-6.12
6,
also
prs.
above
on article
e. g. ch.
the
(Tomushcat
32
Finland)
30
contrasts
who
on
pr.
two
the
(art.
2)
under
obligations
respective
2 ICCPR
Covenants.
international
On art.
ch. 6 above.
see
Survival
Of
F. Menghistu,
Satisfaction
The
See
also
in Ramcharan
(ed. ),
pp. 63-83.
Requirements,
n. l above,
12
For
of
text
to
examples
note.
preceding
Portugal
information
inadequate
the
of
reports
see
24).
For much
6) and Jordan
(Doc. C/1/Add.
(Doc. C/C/6/Add.
information
Canada
the
of
reports
adequate
see
more
43)
(Doc. C/1/Add.
the
of
report
and
second
periodic
in the
(Doc. C/42/Add.
2 (1987).
The information
Australia
law,
latter
covers
criminal
manslaughter/
murder,
driving,
aboriginal
abortion,
negligent
suicide,
law,
treatment,
penalties,
customary
emergency
medical
law,
aids,
capital
civil
punishment
and genocide.
See
CH. 8.522
their
with
in
and
particular
13
As
adopted.
consideration
not
for
only
maternal
considerations
in the
taken
Along
have
public
concerning
example,
the
accidents,
of
and
crime
sought
on the
infant
mortality
and
15
expectancy.
control
and
policy
eradicate
reduce
reforms.
life".
protect
been
consistently
food
drug
the
the
police,
14
combating
and
of
abuse,
the
of
of
malnutrition
eliminate
and
implementation
and
See
Ramcharan,
The
H. A. Kabaalioglu,
Obligations
'Ensure'
The
Right
To
Life,
A. Redelbach,
pp. 160-181;
above,
By Law And Other
To Life
means,
has
raise
reduce
life
HRC's
the
as measures
for
fields,
industrial
diseases,
establishment
unemployment
16
to
the
combatting
products,
health
State
military
taken
occupational
development
was
Information
to
and
lines
pharmaceutical
it
all
the
measures
same
"..
for
been
during
Lebanon,
to such matters
extended
health
and environmental
labour
safety
measures,
13
14
the
but
the
had
commented
legislator,
executive,
to
actively
of
life
to
right
measure"
Tomuschat
report
the
the
authorities,
to
Mr.
the
the
"positive
what
of
"protect"
to
undertaking
a nutritional
centres,
efforts
epidemics,
agrarian
(1983);
1
above
n.
'Respect'
And
To
To
(ed. ),
in
Ramcharan
n. 1
Of The Right
Protection
ibid.,
pp. 182-220.
15
(Graefrath
See
65
SR
on
e. g.
pr. 31
For
in
Czechoslovakia),
G. C. 6(16),
above.
and
pr. 8.3
for
States
to
requests
of
parties
examples
responding
information
Report,
Hungarian
such
see
e. g.
44;
A
Syrian
Add. 31.
Doc. C/1/
Doc. C/1/Add.
Report,
in
P. Q. I. - Index,
the
of
assessment
criteria
often
used
Rights
J. I. Dominguez
Human
Assessing
e. g.
see
et
al,
in
J. I. Dominguez
Global
Conditions,
Enhancing
al,
et
(1980).
Human Rights,
pp. 21-116
16
SR
on
27
32
CH. 8.523
broad
This
"positive
as
approach
"desirable"
raises
inevitably
approach
by
covered
matters
on
including
measures"
Economic,
under
progressive
nature.
illogical
in
immediate
and
the
that
argument
the
question
21
Finally,
ECHR.
two
of
in
members
as
is
O. P.
terms
of
right
to
has
been
the
the
ICCPR
are
turn
would
HRC,
HRC
of
of
20
life.
adopted
in
obligation
the
then
violation
attitude
of
to
consideration
the
"positive"
in
This
alleging
of
respect
the
under
the
both
containing
accepted
19
of
necessarily
with
sustainable.
cautious
Covenant
17
The
clearly
nothing
obligations
aspect
of
Rights.
obligations
the
HRC's
The
are
this
HRC
the
consideration
is
There
the
any
into
ICESCR
if
by
difficulties.
Cultural
concerning
very
indicated
article
longer
under
those
for
call
International
and
of
consequent
parallel
but
progressive
comparison
that
the
life
no
communication
broader,
it
progressive
problems
raise
takes
the
18
all
is
immediate
legal
interpreting
to
right
some
Social
obligations
the
and
is
it
By
to
2
article
worth
noting
particularly
were
(Footnote
Continued)
SR
(Graefrath
SR 431 pr. 21 (Cooray
on Peru);
on Mexico);
(Graefrath
See
441
France).
generally
on
pr. 36
To Food,
(eds),
The Right
K. Tomasevski
and P. Alston,
Through
Guide
The Right
(1984);
To Food:
K. Tomasevski,
(ed.
),
(1987);
J.
Dupuy
International
R.
Law
Applicable
Recueil
1978-79
To Health
As A Human Right,
The Right
Des Cours.
17
18
19
U. K. T. S.
(1977).
2 ICESCR,
See article
See ch. 1,
pr. 1.16
pr. 1.16
See ch. 1,
and
n. 17 above.
ch. 6,
prs.
20
It is interesting
to speculate
to the alleged
have responded
violations
decision
in
the
the
life
Indian
of
Bombay Municipal
Tellis
v.
and Others
[1987]
(Const)
LRC
351.
Others,
includes
the right
life...
to livelihood".,
21
article
See ch. 6,
6 under
the
above.
n. 5 above
O. P.,
below.
and
6.11-6.12
above.
cases
'cited
in
CH. 8.524
influential
6,
in
developing
(expert
Mr. Graefrath
(expert
Vincent-Evans
8.5
Abortion22
spasmodically
at
dealt
that
proposals
would
conception"
were not
that
members have commented
peculiarly
moral
and
be difficult
therefore
26
However,
would
on it.
their
express
own
GDR),
Sir
terminates
and
the
to
individual
of
one
members
views
on
uncertain.
to
A number
question
achieve
thus
a right
covered
25
adopted.
in
points
and
is
obligation
ICCPR
The
the
concerning
been
only
members.
controversial
personal
article
and
have
have
"from
the
euthanasia23
by
HRC
with
a State's
of
to
approach
U. K. ).
the
provision
express
life
which
commences
extent
precise
Draft
from
from
and
HRC's
no
contains
time
the
of
abortion
and
that
the
24
life
HRC
was
it
view
a Committee
free
to
have felt
the
subject.
For
22
(Herdocia-Ortega
412
See
SR
on
e. g.
pr. 5
391
SR
416
SR
Austria),
pr. 40
reply
at
pr. 25;
been
has
(Prado-Vallejo
Iceland).
Where
abortion
on
23
it
has
linked
been
to
dealt
article
with
sometimes
below.
See
24
Covenant,
I
the
also
of
see
apx.
and
Ethics,
Smith,
Law And Medical
J. K. Mason
and R. A. McCall
(2d,
Italy,
1987);
Law In
T. Ritterspach,
Abortion
ch. 5,
(1984)
5 HRLJ
pp. 385-388.
23
24
See Mason
See Lillich,
and
MaCall
Smith,
n. 1 above,
ibid.,
ch. 15.
pp. 123-124.
25
149
4/SR.
E/CN.
11;
Doc. E/CN. 4/SR. 140
See
pr.
4(4)
AMR
A/3764,
113.
10-11;
Doc.
Cf.
article
pr.
prs.
"in
life
that
the
to
exists,
provides
right
which
Baby
See
the
from
the
moment
of
conception".
general,
2 HRLJ
(United
States),
Case
IACM,
No. 2141,
Case,
Boy
the
110.
The ECHR does
point
(1981)
cover
not
expressly
270;
867/60,
4
YBECHR
X
A.
Norway,
but
p.
v.
see
5 D.
& R.
Bruggemann
Scheuten
FRG,
A. 6959/75,
v.
and
in
6(5)
ICCPR,
the
EUCM
103,
and
which
noted
article
p.
(1980).
U. K. 19 D. & R. p. 244
X. v.
A. 8416/79,
26
for
SR 369
For
this
some
see
support
view
draft
370
22,33,26
SR
12.
the
Part
and
of
pr.
prs.
in
kept
the
6,
on
article
comment
general
which
was not
"The Committee
final
read,
version,
on the other
notes,
to
the extent
hand,
that
of the protection
of the right
Continued)
(Footnote
-1
CH. 8.
during
example,
adopted
"thought
in
Italy
the
infringed,
freedom
respect".
the
in
27
perhaps
on
that
respect
Bouziri
of
circumstances
strict
grounds,
it
was
which
the
with
the
the
in
question
members
which
law
abortion
that
commented
so
religious
When dealing
concern
of
laws
abortion
principal
determine
the
(Footnote
consideration
in 1978 Mr.
525
he,
they
that
the
woman's
to
essential
of
has
abortions
abortion
been
to
were
Continued)
in
issue
is
life
the
many
unborn
of
a controversial
by reference
to
be resolved
States
and cannot
parties
to be the position
This
this
would
also
appear
article.
in
when
particular,
voluntary
and,
euthanasia
as regards
No
its
is
death
to
take
course".
natural
permitted
it
but
dropped
this
text
was
appears
of why
explanation
its
that
with
is submitted
omission
was more concerned
the
that
the
than
saying
question
rather
not prejudging
See Graefrath.
Covenant
no assistance
at all.
provides
(1984-85),
6
1
6,
above
p.
who comments on abortion,
n.
ch.
6
invoking
be
by
decided
this
article
"Obviously,
cannot
ECHR
jurisprudence
the
would
The
Covenant".
the
under
of
17
Covenant)
(art.
the
to
that
right
privacy
suggest
be
determination
such
of
to
the
relevant
also
would
25
Case,
above.
Scheuten
See Bruggemann
n.
issues.
and
705
Ct.
93
S.
in
Wade,
U.
S.
Roe
the
Similarly
v.
approach
Court
see
For
U. S.
Supreme
(1973).
ruling
a recent
And
Obstetricians
College
Of
American
Thornburgh
v.
2169
Ct.
106
S.
Pennysylvania
Section,
Gynecologists,
See also
Borowski
of Canada,
(1986).
v. Attorney-General
Smoling
and
112 and R. v. Morgentaler,
DLR (4th)
(1983)
(1985)
502.
DLR (4th)
Scott,
27
Report,
Italian
SR 258 pr. 58 commenting
on the
292
19,
SR
110
4,
29.
Similarly
SR
C/6/Add.
Doc.
pr.
pr.
at
SR 369 pr. 25 (on Portugal).
For
a parallel
prs. 9-10,
remarks
concerning
euthanasia
critical
see the
example
the
6
223
222
SR
SR
5
of
pr.
and
pr.
on a provision
at
Code permitting
Penal
Colombian
sentence
of
mitigation
in the case of mercy killings.
CH. 8.526
28
authorized.
abortions
least
are
per
might
the
that
United
the
of
to
relevant
with
respect
concerning
birth
control
of
Of
particular
life
by
the
and
its
In
at
ICCPR
in
suggest
would
17
ECHR
ICCPR
be
29
would
those
circumstances.
30
Questions
euthanasia.
31
been
exceptional.
have
of
or
the
under
article
to
use
the
Court
of
to
ICCPR
the
jurisprudence
in
that
suggest
with
Supreme
concern
forces.
security
compatible
privacy
Similarly
8.6
be
determination
the
to
to
contrary
States
to
right
taken
se
The
circumstances.
certain
be
could
not
they
that
and
This
HRC has
the
firearms
first
been
the
the
police
by
taking
HRC
the
Comment
General
and
that,
stated
"The
protection
life
which
against
is
article
The
Committee
should
parties
deprivation
of
prevent
forces.
the
of
life
by
is
State
the.
their
life
by
28
of
of
matter
law
must
strictly
See
Court
the
of
See
SR
decision
in
New Jersey,
551
the
that
States
to
prevent
but
own
the
p r. 110
to
also
security
authorities
gravity.
utmost
and
control
limit
SR 439
on New
11 (Bouziri
on Canada);
SR 481 pr. 41 (Bouziri
29
30
acts,
third
paramount
only
not
criminal
by
killing
deprivation
The
Therefore,
pr. 29
Zealand).
measures
of
the
of
considers
take
arbitrary
by
required
is
6(1)
explicitly
of
sentence
importance.
deprivation
arbitrary
is
17
Article
not
cases.
HRC has
The
recently
17. The general
article
euthanasia,
or
abortion
Matter
the
of
70 NJ 10,355
(Bouziri
on
Quinlan,
A 2d 664
Trinidad
and
CH. B.
the
his
of
In
life
by
accordance
information
on
the
fire,
open
disturbances,
what
such
GDR was
questioned
as
concerning
the
borders
could
article
6 on
the
in
the
growing
increasingly
attracted
G. C. 6(16),
HRC's views
use
by
the
are
to
entitled
riots,
political
how they
prison,
the
against
of
representative
its
laws and
the
practices
forces
security
at
its
the
of
requirements
deprivation
of life
27
force.
phenomenons
and
or
in
circumstances
existed
with
of
world
persons"
in the
below.
whether
non-arbitrary
"disappeared
25
to
sought
regulations
the
safeguards
26
The
arms.
use of firearms
be reconciled
proportionality
The
legislation,
and
and
deprived
have
members
concerning
of
8.7
approach
forces
security
in
cases
of
example,
from
arrests
and escapes
police
for
use
arbitrary
a person
may be
25
authorities".
which
this
any
orders
enforced
were
such
with
administrative
which
in
circumstances
527
extra-legal
attention
n. 3 above,
pr. 3.
in the
Guerrero
so
of
killings
of
the
and
called
have
28
HRC.
(Tomuschat
65
2
See
SR
on
e. g.
pr.
SR 92
SR 67 pr. 60 ( Tomuschat
Czechoslovakia);
on GDR);
SR
SSR);
(Opsahl
(Ukrainian
155
31
FRG);
SR
9
on
pr.
pr.
18
292
(Opsahl
18
SR
Mauritius);
pr.
110
pr.
on
on
(Tarnopolsky
SR 353 pr. 20 (Vincent-Evans
on Jamaica);
7.32,
7,
(Opsahl
SR 431 pr. 66
Peru);
pr.
Guyana);
ch.
on
by
force
(on
).
U.
112,113
K.
On
the
of
above
use
n.
Asmal
K.
in
forces
Northern
Ireland
see
security
Lawyers
'Shoot
(Chairman),
to
Kill'
International
Deadly
Of
(1985);
Use
R. Spjut,
'Official'
The
Inquiry
Suspected
The
Security
Against
By
Services
Force
[1986)
Some Lessons
Ireland,
From
Northern
Terrorists:
P. L. pp. 38-64.
27
reply
18
(Tomuschat
on GDR);
28
Continued)
CH. 8.528
Generally,
members
accusations
but
have
rather
linking
a fair
in
hearing
concentrated
"States
that,
to
procedures
disappeared
and
involve
members
of
expressed
authorized
deceased
inquest.
international
(Footnote
in
persons
of
the
the
report
great
concern
police
officers
persons
and to
31
On occasions
reports32
bury
of
at
of
cases
or
life".
a
may
During
number
have
violations
of
of
possession
them
cremate
missing
regulations
emergency
take
and
which
30
Lanka
to
stressed
facilities
to
Sri
to
right
HRC have
circumstances
right
whether
the
of
the
HRC members
alleging
on
to prevent
the
29
Moreover,
should
establish
effective
investigate
thoroughly
violation
consideration
14 ICCPR
article
direct
making
effective
measures
existed
individuals.
and killing
of
6 with
the guarantee
article
disappearance
which
avoided
and
specific
by
have
an
without
to
referred
of
the
right
Continued)
'Disappearances',
Or
Summary
Action
Against
U. N.
(1986)
8
Executions
HRQ
And
Arbitrary
Torture,
1980
U. N.
D. Kramer
The
D. Weissbrodt,
and
pp. 700-730;
3
HRQ
On Human
Commission
Rights
Disappeared,
the
and
(1981)
E. Kaufman
Fagen,
n. 7 above;
pp. 18-33;
and P. Weiss
the
U. N
Special
Reports
Rapporteur,
above,
n. 1
of
1;
1,
Corr.
Add.
Add. 1
Docs. E/CN. 4/1983/16
and
and
E/CN. 4/1986/21;
E/CN. 4/1985/17;
E/CN. 4/1984/29;
To
Life:
Protecting
Right
The
D. Weissbrodt,
Summary
Or
Measures
International'
Against
Arbitrary
(ed. ),
in
By Governments,
Ramcharan
Killings
n. 1 above,
pp. 297-314.
29
discussion
See the
raised
questions
concerning
during
the
of
report
consideration
of
periodic
second
SR 746 prs. 6 (Higgins),
17 (State
Iraq,
representative),
21 (Pocar),
(Lallah),
19-20
SR 747 pr. 1 (Lallah).
30
469
SR
4.
G. C. 6(16),
See
g.
e.
n. 3 above,
pr.
on El Salvador).
pr. 37 (Dimitrijevic
31
(Errera);
SR 472 pr. 9 (Vincent-Evans),
pr. 29
at SR 477 prs. 26-27.
reply
32
See e. g.
(Tarnopolsky
SR 356 pr. 15
on Chile
12;
to reports
359
SR
of the IACM; reply
pr.
referring
at
(Ermacora
SR 421
SR 746
pr. 16
on Nicaragua);
pr. 19
(Lallah
Special
to the
on Iraq
referring
report
of the
(Footnote
Continued)
CH. 8.529
to
life
to
or
individuals33
under
views
If
the
or
the
groups34
35
O. P.
violations
HRC
the
have
the
of
irrespective
allegations
Government
approach
of
members
responsibility
the
notorious
of
the
is
cases
other
than
to
right
indicated
Government
of
responsible.
HRC under
concerning
whether
36
the
O. P.
dealt
those
life
have
with
been
investigate
to
is
it
and
the
alleged
accords
in
alleged
is
the
it
that
This
37
particular
with
complements
that
the
the
Continued)
(Footnote
of
During
report
of the
U. N. Rapporteur).
consideration
to the reports
of
Chile
reference
members made constant
U. N.
HRCion
Group
Ad Hoc Working
the
and to
the
of
resolutions.
33
See e. g.
SR 354 pr. 18 (Tarnopolsky
on Guyana
death
the
Rodney,
Walter
a political
of
concerning
(Graefrath
Chile
128
10
SR
concerning
on
pr.
activist);
46
475
SR
pr.
Orlando
Letelier);
the
of
assassination
Dialo
death
Guinea
the
of
(Tomuschat
on
concerning
by
OAU,
former
Secretary-General
the
caused
Telli,
of
diet).
'black-death'
the so-called
or starvation
34
365
SR 364
76
concerning
See e. g.
pr-7
and
pr.
the
leaders
of
of
the
execution
of
a number
alleged
472
SR
11,53;
in
368
faith
Iran;
SR
Bahai'
prs.
reply
at
(Tarnopolsky
8
431
(Ermacora
Sri
Lanka);
SR
15
pr.
on
pr.
on Peru).
35
36
See e. g.
SR 355 pr. 29
(Uruguay).
El
(Graefrath
469
SR
See
on
e. g.
pr. 32
188
354
SR
SR 746 pr. 6 (Higgins
Iraq);
Salvador);
pr.
on
(Tarnopolsky
the mass killings
at
on Guyana
concerning
128 pr. 32
See also
the Jonestown
religious
community).
jeopardizing
(Tomuschat
on Chile)
on the
of a persons
by a penalty
health
or life
of banishment.
37
See pr. 8.24 below.
CH. 8.530
general
treatment
8.8
of
State
38
has
that
been
punishing
analysis
39
Members have
penalty.
facets
of
sentence
imposed
for
accordance
commission
of
this
on
the
the
Such
to
has
the
been
comprehensively
including
the
and
the
concerning
subjected
scrupulously
the
use of
dealt
with
six
implementation
(a)
sentence
40
most
express
of
only
be
must
may
(b)
serious
crimes;
in
law
force
time
the
the
of
with
at
41
(c) must not be contrary
of the
crime;
provisions
other
matter
imposition
death.
Genocide
Convention;
pursuant
to
final
a
be
in
the
to
the
Covenant42
to
the
or
of
43
(d)
be
out
carried
can
only
judgement
by a competent
rendered
38
State
responsibility
and
limitations
the
aliens.
One matter
close
death
all
of
rules
Systems
Of The Laws Of
Part
I,
and VIII,
chs. VII
See I. Brownlie,
Responsibility,
Nations
(1983).
39
International
See The
Death
Penalty,
Amnesty
(1979);
Of The Death
D. Pannick,
Review
Judicial
Report
(1982);
Rodley,
Landerer,
Penalty,
n. 1 above,
n. 1 above;
On
Standards
R. Sapienza,
International
Legal
ch. 7;
in
(ed. ),
Punishment,
Capital
Ramcharan
n. 1 above,
Advisory
Opinion
pp. 284-296;
of the IACT on Restrictions
(Arts.
Penalty,
4(2)
To The Death
and (4) AMR), Advisory
(Sept,
1983),
OC-3/83,
4 HRLJ (1983)
Opinion
pp. 345.
40
"most
drafting
During
the
serious
the
phrase
legal
since
precision,
was criticized
as lacking
crimes"
from one country
differed
the concept
of "serious
crime"
Doc. A/2929,
to another,
ch. VI,
pr. 6.
41
limitation
is a specific
This
of the
application
in
15 ICCPR.
principle
article
general
42
imposed
in an inhuman
For example,
or degrading
joint
7
Cf. the
to
ICCPR.
contrary
article
manner
judgement
dissenting
Scarman
of Lords
and Lord Brightman
in
Riley
Others
Jamaica,
V.
Attorney-General
and
of
is
[1983]
1 A. C. 719.
Similarly
if
death
the
penalty
imposed
do
with
after
proceedings
which
comply
not
14 ICCPR, see Mbenge v. Zaire,
article
pr. 8.25 below.
43
Convention
On
The
Prevention
And Punishment
Continued)
(Footnote
Of
CH. 8.531
44
court;
(e)
by
persons
be
carried
death
notably
treatment
the
of
years
as
of
compared
behind
philosophy
(6) of article
6.
the
crimes
age45
46
women;
committed
shall
and
(f)
to
right
not
any
person
seek
pardon
the
the
In
HRC to
the
of
the
with
and
from
of
approach
abortion
largely
for
sentence.
consistent
penalty,
stems
eighteen
out
on pregnant
have
to death
shall
commutation
The
imposed
be
not
below
sentenced
or
shall
spasmodic
rather
above47,
noted
euthanasia
the
perceived
clearly
abolitionist
(2)
paragraphs
of
provisions
its
General
Comment
the
and
HRC stated
that,
"While
it
States
parties
and,
in
the
'most
(Footnote
ICCPR,
45
from
article
not
obliged
they
serious
are
to
particular,
consider
to
abolish
and
it
for
Accordingly,
their
its
that
death
use
other
than
they
ought
laws
criminal
(6)
the
abolish
to limit
obliged
crimes'.
reviewing
(2)
in
this
Continued)
Of
The Crime
U. N. T. S. 277.
44
are
totally,
penalty
to
follows
Genocide,
"competent"
The word
see ch. 10 below.
SR 402
pr. 18
4(5)
AMR prohibits
Cf. Article
the
where
person
punishment
time
the
the
crime
age at
United
States,
Pinkerton
v.
(1988)
pp. 145-155.
See
46
1948,
U. K. T. S.
also
appears
58
in
(1970);
78
article
14
(Prado-Vallejo
on Australia).
imposition
the
capital
of
of
years
eighteen
was under
Roach
Cf.
and
was committed.
8 HRLJ
IACM,
No. 9647,
Case
it
does
The text
would
whether
not
clear
make it
the
death
be permissible
to
the
on
penalty
carry
out
but
is
born.
the
The
raised
child
was
after
point
mother
1
during
drafting,
the
Doc.
A/2929,
above,
n.
resolved
not
if
6(5)
by
Even
such
not
prohibited
article
pr. 10.
inhuman
treatment
constitute
respect
might
with
action
both
SR 468
the
the
See
to
pr. 29
mother
and
child.
(Prado-Vallejo
SR 443 pr. 25 (Bouziri
on El Salvador);
on
4(5)
Cf.
AMR.
Lebanon).
See also
Meron,
art.
n. 1 above,
pp. 99-100.
47
above.
CH. 8.532
light
in
and,
application
serious
the
of
The
crimes'.
in
to
abolition
(paras.
(2) and
As regards
death
an
prescribed
also
this,
mean
that
the
measure".
the
offences
and
questioned
the
categorization
50
Members
serious".
imposition
possible
for
the
against
for
or
gain
economic
crimes,
51
State";
"sabotage";
for
leading
a
"corruption
operations",
54
the Constitution";
"armed
against
HRC has
the
be
read
death
the
is
penalty
as to
"most
representatives
as
of
offences
certain
have
the
at
concern
expressed
for
death
the
vague,
of
penalty
or
generalized
crimes"
"must
the
of
application
be
death
should
penalty
49
have
looked
Members
which
State
generally
strongly
suggest
48
is desirable".
the
serious
'most
the
refers
abolition
of
the
restrict
to
which
that
exceptional
at
closely
article
that
view
to
restrictively
penalty
"most
the
the
expressed
death
limitation
to
to
event,
terms
(6))
the
penalty
quite
any
for
52
"crimes
example,
"murder
committed
53
life";
way of
parasitic
and "offences
on earth"
55
finds";
"misuse
public
of
48
Other
G. C. 6(16),
general
n. 3
above,
pr. 6.
laws,
have called
for
the review
of applicable
comments
3,
Doc. A/36/40
G. C. 4(13)
pr. 4
on
article
e. g.
pp. 109-110.
49
interpretation
G. C. 6 (16) , n. 3 above,
7.
This
pr.
been present
has though
the inception
of the HRC's
since
See n. 40 above.
work.
50
(Prado-Vallejo
SR 482 pr. 22
on New Zealand).
forbids
AMR which
Cf. art. 4(3)
the
of
re-establishment
it.
in States
have abolished
the death
penalty
which
51
52
202
prs.
53
54
SR 117 pr. 40
(Tomuschat
SR 198
6-7.
(Bouziri
pr. 8
SR 64 pr. 38
SR 364 prs.
on
(Tarnopolsky
38
(Sadi),
SSR).
on Byleorussian
Mongolia)
reply
at
on Czechoslovakia).
56
(Opsahl)
on
(Footnote
Iran.
Continued)
SR
CH. 8.533
double
membership
56
for
activities;
57
for
offences,
violations
minor
relevant
understand
what
provisions
further
of
the
death
particularly
for
death
was
for
penalty
those
(FootEpte
(Sadi)
56
"In
no
political
57
reply
offences
requested
penalty
the
laws
some
to
of
the
regulations
and
period,
a
given
61
the
whether
prescribed
alternatives
punishment
62
the
exist,
SR
136
pr. 28
SR 364
pr. 39
(Tomuschat
(Sadi),
SR 365
the
on
statistics
(Vincent-Evans),
on the
pr. 8
AMR,
for
Netherlands);
(Tarnopolsky)
Iran.
59
60
SR 257 pr. 70
(Sadi
on
SR 366
e. g.
pr. 15
Of The Rights
And
"Laws"
The
Word
No. OC-6/86
the
of
See
Restrictions
Convention
Opinion
pp. 231-267.
Italy).
Cf.
(Tomuschat
on Iran).
Of The American
Freedoms
30,
Advisory
Article
In
(1986)
7
HRLJ
IACT,
61
need
in
everyone
application
offences,
whether
the
expressed
60
prescribed.
exclusively
or
enable
within
political
to
be
to
to
State's
persons
Some
crimes.
such
law
practical
of
many
HRC members
of
are
Continued)
SR 135
pr. 54
on Romania.
58
on
for
terms
the
have
command
how
asked
executed
by
attached
political
drug
example,
58
for
and
in a military
crimes,
and
understand
for
of
are
activities
members
use
duties
explicit
relevant
sexual
for
or
crimes,
provisions
sufficiently
To
basic
sentenced
has been
importance
the
parties
Representatives
context.
have been
for
political
non-violent
the
of
59
of
the
death
sentence
should
only
on
Mali);
SR
demand
would
for
be the
penalty
(Footnote
Continued)
CH. 8.534
frequency
as
by
required
penalty
the
6(2),
the
14
and
As
HRC
the
with
in
stated
time
of
the
respect
to
in
guarantees
death
to
contrary
particularly
procedural
the
at
not
whether,
the
of
law
the
crime
and
imposition
the
Covenant
important
63
ICCPR.
vitally
sentences
with
the
of
of
of
accordance
commission
and
commutation
article
in
was
provisions
the
the
of
articles
its
General
Comment,
"It
follows
also
it
6 that
the
law
in
the
crime
from
be
can only
force
at
and
not
Covenant,
The
prescribed
a fair
must
hearing
the
the
time
contrary
to
procedural
innocence,
tribunal.
rights
Again
allegations
penalty.
should
65
not
of
to
States
be
imposed
Genocide
Convention
(Footnote
Continued)
to
review
in
the
addition
or
pardon
seek
members
the
limitation
contrary
the
to
right
guarantees
by higher
minimum
to
the
therein
tribunal,
applicable
have
of
of
64
sentence".
rarely
the
provisions
right
right
only
On
the
of
commission
guarantees
including
the
are
particular
commutation
the
the
the
and
These
the
of
be observed,
by
an independent
presumption
of
for
the defence,
to
terms
of article
express
imposed
in accordance
with
standard
abuse
the
that
to
the
specific
put
of
death
the
death
provisions
has
approach
penalty
of
been
the
to
that
It
the most
require
serious
of crimes.
might
also
it
See Pannick,
n. l
penalty.
not be the mandatory
6,7.
above63chs.
See e. g. SR 364 pr. 73 (Vincent-Evans
on Iran).
64
G. C. 6(16),
n. 3 above,
pr. 7. See the Mbenge Case,
pr. 8.25 below.
65
For some exceptional
cases
see the consideration
the
SR
Chile,
SR 127-130;
Iran,
reports
of
of
of
364-366,368.
CH. 8.535
ask
in
provisions
8.9
the
commutation
least
cases",
at
party
that,
commented
"States
parties
ensure
that
realization
instrument.
It
been
with
in
penal
human
in
to
the
a Government
in
and gross
ineffective
accepted
international
as
11[T]he
level
were
information
grave
had
breaches
of
that
grave
was
it
boasted
contrary
law
human
of
to
and
from
crimes
view
Group's
by
declared
who
responsible
for
the
Working
amnesty
an
penal
shared
the
of
persons
liable
extended
occasion
officials
of
dealt
present
violations
principles
violations
66
of
and
hitherto
He fully
that
effect
favour
in
discontinued
326
paragraph
recognized
for
had
them.
to
punishment
The
and
against
expressed
legally
and
obligation
obligation
had
a regime
who had committed
those
prosecutions
systematic
the
that
During
recognized,
reports
on which
rights
report67
all
the
prosecution
of human rights.
first
pardoned
generally
Committee,
the
breaches
the
by
affirmed
an
right
was
Mr. Graefrath
Chile
the
of
in
granted
that
suggested
Covenant
the
the
had
to
to
"Amnesty,
that
provision.
of
report
66
may be
sentence
member has
this
contains
Convention.
provision
abuse
the
of
Genocide
the
one
cannot
consideration
the
express
of
law
national
with
or
State
party's
conformity
Notwithstanding
pardon
all
State
the
whether
the
that
in
engaged
rights
was
generally
on
for
committed
the
such
by
official
various
to
the
in
El
pointed
existence
sources...
of
genocide
SR 474 pr. 4 (Movchan
Salvador",
'31 Salvador);
on
reply,
On Genocide
ibid.,
U. N.
pr. 5.
Action,
see
n. l above,
L. Kuper,
Genocide
And
Mass
Illusion
Killings:
ch. XII;
in Ramcharan
(ed. ),
And Reality,
n. l above,
pp. 114-119.
67
Doc. E/CN.
4/1310.
CH. 8.536
Such
them.
and
question
violent
conflict
for
need
future.
in
amnesty
at
should
question
and
retention
of
After
the
death
the
penalty.
consideration
expressed
"The
the
should
enjoyment
of
be
the
40,
article
Committee.
right
and
The
Committee
128
See
pr. 5.
By Former
Military
Violations
(1987)
See
ILM
pp. 317-372.
(1985)
Rev. ICJ
pp. 27-30.
The
despite
70
71
72
Mongolia).
regime
of
increasing
See Joinet,
See e. g.,
See
e. g.
President
opposition.
SR 292 pr.
197
18
the
that
State's
the
HRC
1982,
measures
in
progress
of
all
the
within
be
such
that
notes
Judgement
Leaders
L. Joinet,
n. 68 above,
SR
as
of
on
number
as
life
should
any
opinion
that
to
on
a particular
considered
SR
69
behind
72
legally
of
abolition
public
concludes
abolition
to
party
the
philosophy
sought
a substantial
in
conclusion
Committee
to
international
of
following
as
or
been
of
reasoning
the
and
recognized
has
state
The
one.
circumstances
abolitionist
a State
the
prolonged
to
an
grant
sought
foreseeable
for
the
national
the
by
of
one
a difficult
is a different
however,
be
not
the
of
is
power
the
either
given
71
end
power
in such
that
accordance
with
information
6
consideration
death
penalty,
power
the
at
reconciliation
in Chile,
situation
the
violation
a controversial
to justice
offenders
while
remaining
69
is submitted
It
article
68
clear
is
conflicts
bringing
in
In
the
amnesties
regime
effective
70
level.
of
national
purported
8.10
of
civil
between
The
resolve.
because
one
amnesty
was
68
Covenant".
The
conduct
the
meaning
reported
to
a number
of
Rights
On Human
(Argentina),
XXVI
35
Laws,
Amnesty
Pinochet
remains
in
pp. 28-30.
(Tarnopolsky
p'r. 17
on Jamaica).
(Vincent-Evans
on
CH. 8.537
have
States
its
suspended
has
The
still
been
rarely
only
chose
Comment
question,
"The
on
if
war
directly
article
in
only
Committee
violence
mass
humanity75
and
human
beings
take
every
General
this
with
terms,
of
acts
war and other
be
to
scourge
a
lives
the
Charter
the
of
thousands
of
Under
year.
HRC
the
first
generalized
continue
to
the
within
However,
its
life
to
right
to
referred
74
in
abolishing
is quite
dealing
that
observes
the
and
explicitly
somewhat
States'
made towards
death
penalty
State
specific
reports.
to include
a paragraph
of
context
between
relationship
or
penalty
Nevertheless,
application.
progress
reports
show that
the use of the
or limiting
73
inadequate".
8.11
death
the
abolished
already
of
by
of
the
force
any
of
in the exercise
State
State,
except
against
another
is
inherent
already
the
self-defence,
right
of
of
76
States
that
Committee
The
considers
prohibited.
duty
have
of
to
the
acts
wars,
prevent
supreme
Nations
United
the
and other
loss
of
genocide
arbitrary
avert
the
war,
and
danger
the
and
condition
notes,
in
particular,
75
preamble
76
Against
Rep. 14.
414
In
pr. 21
causing
violence
they
effort
especially
the
for
the
and
peace
important
most
of
safeguarding
respect,
a connection
to
make
thermo-nuclear
international
this
n. 3 above,
mass
Every
war,
guarantee
life.
SR
disarmament).
of
use
constitute
to
74
or
strengthen
right
G. C. 6/16,
acts
life.
of
would
security
73
threat
the
Committee
the
between
article
pr. 6.
(Hanga,
to
referring
"scourge
to the
Nations
Charter.
of
And Paramilitary
Activities
(Nicaragua
v. U. S. ), Merits,
war"
general
in
In
1986
the
And
ICJ
CH. 8.538
6 and
any
prohibit
incitement
and
war
Its
previous
prevent
beings
every
While
life
supreme
duty
of
their
proliferation
of
of mass destruction,
life
but also
absorb
for
vital
and
for
thereby
are
is
threat
use
77
of
possession
that
life
amongst
which
compounded
such
G. C. 6(16),
See
ch. 12 below.
disarmament).
weapons
the
may be
n. 3 above,
SR 414
also
purposes,
social
developing
of
and
itself
nuclear
of
to
threats
mankind
brought
this
testing,
deployment
danger
securing
with
designing,
greatest
confront
by the
weapons
human
otherwise
could
promoting
for all.
and
have
development
threaten
only
enjoyment
of human rights
4.
Committee
The
associates
is evident
It
that
the
concern.
manufacture,
Assembly,
the
benefit
the
during
awesome
and
armed
regions
at
resources
of
in
General
not
economic
toll
that,
noted
concern
increasingly
the
to
States
of
the
geographical
which
for
particularly
right
Committee
weapons
the
all
growing
by
concerned
of
form
representatives
weapons
general
mass
of
acts
and
of humanity
human
innocent
other
conventional
has
Committee
sessions
countries,
life
extract,
the
by
the
used
second
comment,
scourge
deeply
taken
successive
be
to
right
year.
conflicts,
and
shall
1) or
therein
as
a substantial
thousands
of
.
remaining
expressed
the
HRC's
the
and
be
to
lives
the
human
Wars
wars.
continue
violence
take
2)
between
general
it
is the
that
observed
to
3.
violence
law
the
(paragraph
war
(paragraph
relationship
its
In
also
for
in
further
a step
importance
justifies
taken
comment.
"2.
that
states
broader
The
which
propaganda
to
77
described"
8.12
20,
article
This
today.
that
the
about,
pr. 2. On article
on
pr. 21 (Hanga
the
actual
not
only
20 see
general
CH. 8.539
in
the
event
mechanical
5.
of
error
this
the
threat
fear
United
Nations
of
human
or
of
gravity
and
suspicion
is
in
fundamental
and
Charter
the
itself
respect
universal
-sights
with
of
the
Covenants
International
the
and
of
which
promotion
observance
of
in
accordance
and
freedoms
climate
the
and
existence
States,
to
antagonistic
for
very
generate
between
human
through
even
failure.
or
Furthermore,
but
war,
on
Human Rights.
6.
The
use
and
of
nuclear
recognized
7.
as
The
calls
unilaterally
this
menace".
8.13
This
General
and
issues.
HRC,
and
78
and
was
by
the
nuclear
States,
not,
to
not
take
raises
to
proved.
present
of
to
The
French
the
comment
when
be
of
world
key
points
comment
that
going
to
steps,
the
rid
a number
of
parties
urgent
HRC recognized
was
79
interests
the
whether
agreement,
weapons
it
so
in
all
Comment
Clearly
to
who
or
and
humanity.
against
upon
be prohibited
should
accordingly,
Covenant
the
sensitive
crimes
deployment
possession,
weapons
Committee
mankind,
relating
testing,
production,
politically
the
expert
on
was
adopted,
80
A
to register
compelled
of objections.
a number
in
States
the Third
Committee
criticized
also
of
number
81
is
The obvious
why the
the
raised
comment.
question
it
issue
broach
to
the
nuclear
of
HRC felt
necessary
felt
weapons
78
which
had
G. C. 14(23),
featured
not
n. 6 above,
prs.
prominently
See SR 545
The
HRC sent
pr. 15.
in
to the General
Assembly
straight
comment
Doc. A/40/40
importance,
pr. 683.
pr.
SR
See
(Ermacora).
81
571
prs.
2-7
(Errera)
its
(my emphasis).
2-7
79
80
in
46,48,49,50,51.
See
the
general
of its
view
also
SR
563
CH. 8.
questioning
The
General
the
General
that
weapons
developed
Development.
of
healthy
alleged
environment.
problem
of
contents
HRC makes
States
of
its
rights
85
how to
human
call
whether
"in
by
to
In
the
parties
terms
to
changing
over
interest
to
the
time.
of
this
84
to
the
much
in
years
and
86
Note
mankind"
Covenant
(18/12/82).
or
raises
of
conceptions
issue
has
been
dealt
The
more
with
the
the
of
adoption
second
comment.
general
(GDR State
See
532 pr. 65
representative).
(Prado-Vallejo
"right
GDR on
the
on
pr. 13
peace").
HRCion
Right
also
82
83
New
proposed
development
peace,
respond
rights
resources
more
the
83
under
by
made
to
responds
in recent
rights
general
nuclear
countries.
the
and
the
of
also
human
the
of
of
as part
comment
to
right
Order
reasons
sessions
absorbed
developing
a legal
countries
application
terms
for
The
of
of
self-determination
increasing
demands
Economic
84
for
used
82
process.
a number
successive
resources
the
countries
the
wider
be
ICCPR
International
all
the
consideration
article
developing
the
and
could
in
We noted
the
in
540
reporting
to
points
views
Assembly
40
article
itself
Comment
including
from
the
under
the
that
and
not.
to
The
since
often
SR
See e. g.
SR 533
also
in
live
to
See
also
We also
See ch. 5,
noted
prs. 5.4,5.11
above.
in
but
by France
has been raised
testing
that
nuclear
1, see ibid.,
of article
pr. 5.10.
context
85
See ch. 5, n. 111 above.
P. J. M. De Waart,
See also
And The
Between
To Life
The Inter-Relationship
The Right
in
(ed. ),
To Development,
Ramcharan
Right
n. 1 above,
A. A. Tikhonov,
Between
The Inter-Relationship
pp. 84-96;
ibid.,
To
Right
Life
And
The
The
Peace,
Right
To
pp. 97-113.
86
See C. C. Morrisson,
The Dynamics
Of Development
(1981).
Human Rights
In The European
Convention
System,
CH. 8.541
States
the
States
United
for
As
testing,
term
"should"
goal
to
legal
in
be
of
the
HRC is
it
that
to
89
obligations.
HRC's
the
dispute
Equally,
"amongst
the
confront
As
man today".
a
Tribunal.
matter
90
87
In
One of
reference
88
See
to
from
more
the
Charter
general
terms
the objections
to non-States
ch. 6,
prs.
Charter
Of
is
of Errera,
parties.
6.11-6.13
above
of
the
being
is
are
weapons
to life
which
"crimes
the
of
the
its
as immediate
to
difficult
right
law
the
outside
nuclear
the
this
correct
well
is
as
it
international
of
derive
humanity"
threats
greatest
would
If
ICCPR
the
that
assertion
India,
implementation
progressive
however,
contain
parties,
Covenant.
view
is stepping
it
If
present
of
is
HRC's
immediate
ICCPR.
and
the
desirable
States
France
of
a
of
of
the
as
that
accept
view
number
of
use
and
than
HRC's
USSR,
breach
the
to
the immediate
of supervising
88
in
Similarly,
ICCPR.
the
interpreted
this
the
of
criticism
rights
U. K.,
the
clearly
interpretation
then
the,
that
that
comment
in
States
Western
article
the
of
most
the
was
from
a statement
from
the
recognized
and
other
than
deriving
law
including
This
anything
statement
Comment
prohibited
rather
obligation
a
were
international
be
are
parties
6
paragraph
deployment
possession,
suggests
be achieved
not
General
particularly
is difficult
It
Committee.
are
in
humanity".
criticism,
Third
who
the
of
should
against
attracted
role
content
is
that
weapons
crimes
the
and
the
controversial
"production,
nuclear
concerned
87
China.
obviously
most
against
Nuremburg
raises
comment
n. 80 above,
on
art.
of
was
the
Covenant.
89
90
Ibid.
The
Establishment
An
to
annexed
International
For The
Agreement
Tribunal,
Military
Continued)
(Footnote
the
CH. 8.542
again
the
question
'International
a
reference
92
Charter.
(Footnote
the
of
Covenants'.
to
the
between
relationship
91
Finally
obligations
in
we can
the
the
again
United
92
other
article
note
Nations
Continued)
(1945);
251.
4
See
5
U. N. T. S.
U. K. T. S.
Session,
GAOR Resolutions,
First
G. A. Resn. 95(1),
international
the
II,
affirming
p. 188,
of
principles
by
judgement
the
Charter
the
of
recognised
and
Tribunal.
91
two
See ch. l,
pr. 1.16
and
ch. 6,
prs.
6.11
References
to the
UN Charter
have
general
comments,
the
see
e. g.,
1, see ch. 5, prs. 5.3,5.17
above.
also
Part
law
the
above.
appeared
comments
in
on
Lri"ts
6 Under
Article
8.14
Violations
small
number
HRC
the
8.15
In
of
of
that
Bleir
v.
in
October
arrested
to
subjected
issued
unknown.
since
95
In
it
was
detained
1975,
treatment
and
for
a warrant
1976
but
No information,
to
various
from
the
decision
B was
and
State
had
or
observations
including
B's
concerning
authors'
HRC
been
were
whereabouts
submissions,
the
dealt
that
arrest
his
that
is
incommunicado
94
The
torture.
B's
one occasion
been
had
a
HRC did
not
alleged
explanations
reply
interim
an
in
alleged
but
On all
Uruguay93
that
in
been
that
there
view
in
the
which
case
6 had been violated
article
testimony,
96
eyewitness
detention.
have
the
August
offered
were
article
cruel
submitted
party
Protocol.
communications.
state
actually
first.
Optional
expressed
The
one
violation.
with
The
543
that
stated
it
considered,
"..
that
Uruguay
into
it
is
to
make
the
his
and
the
treatment
disappearance
1976.
The
95
96
father.
Ibid.,
Ibid.,
the
inquiry
thorough
that
urges
delay
the
in
circumstances
was issued
arrest
Committee
and
that
of
outcome
p. 130.
Doc. A/37/40
pp. 192-193.
94
Ibid.,
and
Government
the
of
of
(a)
Mr. Bleir's
arrest
concerning
26
in detention
to
prior
while
his
(b)
to
apparent
and
as
his
further
without
be informed
of
93
full
and
for
warrant
duty
allegations
1976,
August
clear
See
the
the
26
on
this
which
should
Committee
Rodley,
August
be
n. 1
done
should
taken
action
by
above,
pr. 2.2.
pr. 4.9.
pr.
9.
The
authors
were
B's
husband
and
CH. 8
Government
97
inquiry".
the
in
examined
is
referred
from
deriving
clearly
the
the
of
the
interesting
to
by
and
it
incommunicado,
while
in
authorities".
Uruguayan
the
HRC's
the
the
serious
i. e.
by the
custody
102
of
take
State
the
it
based
in
address
brought
against
information,
that
conclusion
the
party
information
unrefuted
either
at
can
to
party
or
authorities
hands
of
Eduardo
detained,
still
Uruguayan
'interim
that,
allegations
the
also
above,
on which
HRC stated
by
is
an
the
and
the
law
State
the
opinion
mirrors
suggested
has
Uruguayan
the
to this
government
objected
strongly
interim
decision
objections
and those
97
Ibid.,
See G. C. 6(16),
pr. 11.
n. 30 above.
98
See ch. 4, prs. 4.28-4.33
above.
99
and
considerations
corroborated
but
lead
to
(B)
we
to
to
100
expects.
of
the
Bleir
of
likely
the
failure
cannot
part
is
as
duty
HRC's
device
the
of
indicating
for
HRC
substance
it
and
The
use
decision101
"The
died
the
outlining
interim
of
the
legal
The
O. P.,
that
international
99
It
aliens.
customary
HRC which,
cooperation
After
its
the
the
approach
O. P.
is
HRC
98
the
of
the
indicate
importance
treatment
device
a useful
the
outcome
under
would
practical
note
HRC
the
of
under
concerning
be
above,
by
to
terms
great
position
decision'
the
and
the
of
chapter
duty"
"clear
Uruguay
of
jurisprudence
The
544
pr. 4
in
pr. 8.7,
decisions
in
U. S.
Claim,
the
the
Janes
e. g.
(1926)
4 R. I. A. A. p. 82;
Mexico,
U. S. v.
Claim,
Noyes
v.
(1933),
6 R. I. A. A. p. 308.
Panama
100
101
102
See
See ch. 4,
Doc. A/37/40
Ibid.
pr. 4.4
p. 130,
above.
pr. 11.2.
CH. 8
are
103
noted
expressed
violations
"...
of
the
there
by
HRC took
conclusively
it
reasons"
violation.
The
determination
as
by
ended
to
and
happened
take
to
disappearance
to
him
ensure
future.
that
105
103
104
Ibid.,
Ibid.,
be
family
similar
pr. 12,
for
any
noted
at
there
were
had
been
flexible
its
to
for
his
ch. 4,
HRC's
justice
death,
compensation
pay
suffered
not
clear
position
had
what
establish
to bring
and to
injury
judicial
The
reconsider
did
violations
not
been
make
responsible
ill-treatment
could
6 had
violation.
to
steps
October
1975,
or
his
or
alleged
effective
to
it
A strictly
to
Uruguay
found
persons
any
obliged
urging
since
been
HRC shows
O. P.
to
has
104
there
the
felt
the
that
that
the
to
that
article
state
by
HRC found
stated,
to believe
although
that
view
HRC
the
authorities".
under
work
and
article
that
adopted
have
might
10(1)
of
should
believe
to
its
to
approach
and
view
The
Uruguayan
the
could
cautiously.
reasons
approach
express
views
serious
the
the
violated
"serious
view
are
final
and
violation
perpetrated
organ
7,9
ultimate
The
more
articles
that
its
In
elsewhere.
itself
a little
545
occur
pr. 4.31
and to
in
the
above.
"The
that
IACM has
pr. 14.
where
said
individuals
have
'disappeared'
but
Government
the
to provide
them
refuses
concerned
any information
about
the
investigations
about
progress
or
of
any
aimed
at
determining
their
it
is
legitimate
to
whereabouts,
(American
that
the
Declaration
presume
on the Rights
and
Duties
of man) has been violated,
and that
of the
agents
Government,
by it,
or individuals
protected
or tolerated
been
have
in
the
Sieghart,
not
uninvolved
violation",
Cases
1702,1745
pp. 133-134,
n. 1 above,
citing
and 1755
(Guatemala),
IACM Annual
Report
(1975)
See also
p. 67.
Rubio v. Colombia,
pr. 8.24 below.
105
Ibid.,
pr. 15. See also
n. 116 below.
CH. 8
8.16
In
year
term
detention
regime".
leaving
released
Uruguay
v.
imprisonment
in
At
the
unknown
seen
at
Military
H's
body
of
without
identification
stated
resulting
was
explanation
the
of
consequence
The
communication
for
explanations
court
106
orders
copies
alive
to
called
was
shown
death
and
explanation
The
"acute
death
of
was
on 24
artery"
suicide
that
(H's cousin)
alleged
author
false
H had died
and that
and
to
torture
as
a
he
which
subjected.
admissibility
inadmissible
written
seen
cause
mistreatment
been
allegedly
its
In
and
told
was
mother
blade.
a razor
regiment.
purposes.
the
as
from
allegedly
mother
any
were
He was
last
his
transferred
whereabouts
1980.
He was
spirits.
his
requested
an eight
in
was kept
H was
cavalry
On 28 December
for
haemorrhage
matter,
Hospital
certificate
this
but
His
December
quarters
1980.
the
had
28
on good
December
1980
Headquarters.
until
the
reportedly
with
1980
July
November
of
end
Police
Montevideo
then
and
H completed
thereafter
the "prompt
under
security
measures
107
be conditioned
His
release
was to
on him
108
be
he would
the country.
He was informed
that
leave
decision
for
but
to
Sweden
this
was
revoked.
to
106,
H. Barbato
of
546
of
Doc. A/38/40
decision
and
made
the
its
held
HRC
the
request
standard
the
and
clarifying
statements
109
decisions.
relevant
It
the
death
medical
or
and
certificate
also
p. 124.
107
to
This
Ibid.,
regime
was subjected
pr. 1.6.
40
by
HRC members
the
analysis
article
under
close
See also
ICJ Study,
process.
ch. 7, n. 1 above,
reporting
(1983).
pp. 43-68
108
in
Latin
109
is
It
uncommon
not
American
countries.
See ch. 4,
pr. 4.4
for
above.
such
an
offer
to
be
made
CH. 8
the
and of
reports
report
into
held
the circumstances
report
autopsy
the
State
party
that
complaints;
beyond
any
numerous
indicated
whatever
were
110
enquiries
H's death.
surrounding
forwarded
transcript
party
a
of
111
H.
The author
concerning
replied
had given
no explanations
concerning
State
The
on
547
doubt
the
in
autopsy
that
the
cause
of
no
H'
the
that
his
way
death
the
that
was conducted
as claimed;
autopsy
was suicide
by a Lieutenant
(it
by military
personnel
was conducted
by
in
by doctors
Corps)
the
Medical
chosen
and
not
body showed
the
a
undergone
of having
signs
relatives;
having
into
and
the
been
kept
there
refrigerated;
death
in which
of the
circumstances
no explanation
there
was no information
on any investigation
certified;
tracheotomy
circumstances
implausible
was
explanation
death;
of
a cover-up;
and that
it
suicide
could
only
commit
by threats
of violence.
compulsion
In its
of views
expression
even
had
taken
"Only
into
the
account
transcript
of
State
The
submitted.
been
made
Consequently,
the
autopsy
party
has
the
author,
death
Hugo's
spite
110
111
112
was
of
reported
Doc. A/38/40
of
it
that
had
report
in
which
as
to
cannot
information
any
submitted
not
of
been
Hugo
what
Dermit
inquiries
inquiries.
such
but
help
give
by
submitted
before
days
a few
had been
prisoners
seen by other
in
to have been in good spirits,
he
the
outcome
the
did
consideration,
the
Committee
to
weight
indicating
appropriate
and
or
the
and
because
HRC stated
following
report
on the
circumstances
(B) died
or any information
have
official
been
have
112
the
was
unacceptable
if
the victim
and
represented
the
was
that
interruption
of
p. 124,
pr. 5.3.
Ibid.,
pr. 6.1.
Ibid.,
pr. 7.2.
the
preparations
for
CH. 8
his
release
departure
and
Committee
cannot
whether
by
killed
conclusion
Uruguayan
circumstances
act or by omission
by
In
6(1)
article
this
article
had
further
in
than
believe
they
"act"
the
115
is
to
measures
custody.
The
approach
account
is
no
an
the
jurisprudence.
to
113
114
115
116
(1926)
Mexico
in
indicate
that
Ibid.,
pr. 9.2.
Ibid.,
pr.
if
HRC's
116
an
HRC's
6
The
would
seem
of
the
as
to
in
held
to
mirror
a State
any
relevant
would
approach
establishes
to
there
although
HRC's
view
"appropriate"
custody
author
the
person
view
as
conclusion"
obligation
in
held
had
HRC acknowledged
or
HRC
the
law
individual
reference
international
seem
of
go
they
article
of
to
reasons"
as
to
life
view
them
"definite
violate
the
HRC's
The
the
"adequate"
international
customary
to
.,.easures
"serious
According
can
take
"protect"
for
H.
to
to
the
at
arrive
that
Uruguayan
violated,
though
even
"omission"
or
obligation
not
been
by
required
"the
were
the
view
allowed
there
6 had
article
the
appropriate
114
custody".
that
the
"inescapable
take
circumstances
happened
had
what
an
could
express
in
while
Uruguay,
v.
to
was
taking
not
as
this
because,
to
stating
that
Bleir
that
to
that
was
that
violated
failed
life
H's
protect
to
been
had
authorities
felt
them
allowed
for
life,
113
his
Covenant".
HRC
as
either
authorities
protect
the
of
the
case
conclusion"
then
to
the
conclusion
responsible
were
measures
adequate
While
committed
or
suicide
in
custody;
yet,
in
is
that
all
while
the
Uruguay.
a definite
at
Dermit
others
inescapable
from
arrive
Hugo
to
548
prima
10(a).
above.
See e. g.,
the Quintanilla
4 R. I. A. A.
the
p. 101;
(1927)
4 R. I. A. A. p. 278.
Claim,
Mexico
Turner
Claim,
V. U. S.
U. S.
v.
CH. 8
facie
conduct
inquiry
an
that
submit
that
State
the
case
form
State
of
In
party.
HRC.
Failure
the
sensible
approach
in
is
in
situation
clearly
a
party
is
in
its
either
exclusive
evidence
117
to it.
available
that
the
After
expressing
view
only
violated
party
effective
(B's)
death
118
family.
to
steps
and
believed
v.
Colombia119
police
raid
The
on
was
in
house
the
waited
patrol
kidnappers.
Seven
suspected
house
the
were
shot
entered
these
Among
the
was
authors
initially
claimed
resisting
arrest
the
reports
repudiated
this
none
the
all
in
of
been
the
victims
killed
at
back
117
118
or
in
that
See ch. 4,
Doc. A/38/40
n. 116 above.
119
Doc. A/37/40
pp. 149-150.
prs.
p. 137.
take
Dermit's
Hugo
his
to
wife
died
in
where
it
was
found
but
for
the
arrival
held
the
police
the
of
subsequently
died.
the
and
police
the police
G. Although
who
persons
by
The
died
also
while
other
and
that
showed
that
they
some of
them
and
range,
was
had
reports
a shot
4.27-4.33
pr.
to
being
was
victims
ballistic
forensic,
p. 124
alia,
of
the
blank
point
the head.
it
State
not
wife,
account.
had fired
the
authors
a house
Ambassador
Ambassador
that
compensation
the
been
6 had
view
appropriate
a kidnapped
that
prisoner.
pay
of
course
to
only
or
article
facts
the
establish
relevant
control
inter
obligation,
State
the
the
which
the
expressed
an
Guerrero
In
the
under
was
8.17
HRC again
the
the
probably
HRC as
the
to
open
with
made will
the
against
is
this
and
comply
violation
terms
practical
to
allegations
of
to
obliged
of death
circumstances
mean that
a finding
will
obligation
basis
the
the
the
to
report
is
concerned
party
into
549
had
shot
that
established
above.
11.
See
See the
Rodley,
cases
n. 1
cited
in
above,
CH. 8
the
victims
intervals,
of
the
arrived
been
shot
after
she
Office
The
instituted
121
trying
while
the
to
themselves
save
With
she
died
from
several
120
attack.
National
into
inquiry
administrative
the
shot
a heart
for
the
Counsel
to
respect
had been
State
an
dismissal
The
the
attack.
of
but at
same time,
house,
and that
most
the
at
at
that
showed
had already
report
Police
killed
all
unexpected
forensic
times
not
they
as
had
them
from
were
550
the
of
the
patrol
operation
was
Two criminal
on 16 June 1980.122
by recourse
case were defeated
requested
and
investigations
was
ordered
into
the
1978.123
article
case.
involved
in
so
and
the
The
Decree
Decree
long
territory
established
them
committed,
"in
of
Court
the
Ibid.,
to
members
an
25
of
the
125
of
Penal
the
of
had
planned
operations
and
kidnappings...
the
curbing
125
".
held
force
The
was
with
the
of
offences
Court
Supreme
Decree
the
to
act
punishable
to
be
pr. 1.2.
Ibid.,
office
This
was
pr. 6.4.
judicial
over
supervision
exercising
justice
criminal
regard
military
with
national
police
against
personnel.
122
Ibid.,
prs. 3.4,6.5.
investigation
by
review
Decree-Law
pp. 148-149.
124
of
police
121
123
No. 0070
Decree-Law
otherwise
course
Colombia
of
120
if
members
disturbed
remains
order
public
124
is
in a state
of siege
.
defence
that
of
a new ground
preventing
and
extortion
by
pleaded
exonerate
object
amended
as the
national
be
could
all
the
This
"for
Code,
of
prs. 1.4,7.1,7.2.
was annulled
as
a Higher
military
No. 0070 is appended
Ibid.,
Ibid.,
pr. 1.5.
Ibid.,
pr. 11.2.
first
criminal
of an ex officio
text
The full
of
ibid.,
HRC's view,
The
a result
Court.
to the
for
responsible
the
system
of
to
proceedings
CH. 8
126
constitutional.
damages
8.18
the
in
dealing
Before
right
right
of
its
from
reason
that
the
most
serious
be
the
deprived
strictly
which
person
authorities
of
HRC's
description
"supreme
right"
accords
6 under
the
HRC has
the
looked
reporting
regulations
authorizing
authorities
of
paragraph
General
are
the
almost
Comment
State.
exactly
on article
129
130
131
pr.
the
law
the
the
The
above
pr. 3,
as
the
to
attached
As
we
noted
laws
and
life
by
the
terms
in
recited
by
life
domestic
of
the
the
HRC's
above
first
6.131
from
the Supreme
ch. 7, n. 1 above,
Decree
and
of the
13.1.
above
circumstances
of
Ibid.,
pr. 3.2 citing
extracts
judgement.
Cf.
Court's
the
ICJ Study,
describes
the
which
pp. 53-54,
effect
the judgement
to kill".
as a "licence
127
Ibid.,
pr. 11.8.
Ibid.,
that
taking
126
128
mean
life
the
130
right
be
to
right
importance
the
129
process.
at
the
shall
his
closely
for
one
the
of
down
no
deprived
128
a State".
is
the
of
be
follows
only
that
that
limit
State
the
lays
imposed
life
and
with
very
article
and
his
of
may
the
the
particular
requirement
law
control
The
article
The
supreme
This
in
case
that
of
and
be
may
the
follows
gravity.
2 of
by
protected
is
whole
penalty
crimes.
article
authorities
paragraph
death
6,
the
the
of
article
It
military
facts
being.
utmost
as
why
arbitrarily
in
the
of
this
by
article
the
must
life
of
the
shall
in
human
the
matter
to
approach
for
action
with
the
with
enshrined
deprivation
a civil
conjunction
directly
HRC indicated
"The
could
127
proceedings.
is
time
no
instituted
be
criminal
At
551
at
at
see
n. 3.
n. 25.
pr. 8.6
above.
CH. 8
8.19
the
HRC then
The
552
deal
to
proceeded
facts
the
with
of
case,
"In
the
present
that
seven
the
deliberate
life
action
to
surrender
the
police
was
that
of
others,
arrest
suspects
some
days
earlier
them
of
case
Mrs.
death
these
was
it
the
of
Maria
Fanny
to
the
is
requirements
deprived
to
6(1)
article
And
action
Colombian
the
of
of
Political
was
law
1978,
of
made
by
the
reasonable
the
police
the
(G),.
shot
from
that
For
that
the
of
Mrs.
death
in
that
she
to
right
life
the
was
contrary
On
Covenant
as
Decree
life
the
enforcement
Inasmuch
to
In
disproportionate
and
Legislative
right
the
was
justifiable
due
patrol.
International
Rights.
of
doubt
view
in
case
her
police
been
had
no
law
of
the
Guerrero
already
De Guerrero
occurred
died
Committee's
the
more
more
Covenant.
she
resulting
Suarez
arbitrarily
January
by
police
circumstances
Civil
can
persons
had
De
that
be
caused
reasons
action
she
effect
protections
the
had
or
no
by
Suarez
showed
defence
the
of
which
in
of
to
were
the
or
action
necessary
killing
Fanny
There
own
escape
down
after
attack.
her
of
report
times
heart
all
Maria
forensic
several
their
laid
law
of
and
the
their
victims
to
or
presence
that
was
any
patrol
police
kidnapping
the
them
their
the
the
of
process
it
prevent.
Moreover,
than
the
in
the
warning
without
giving
evidence
that
or
or
concerned.
the
taken
necessary
the
that
Moreover,
without
no
of
result
police
of
fact
the
as
the
to
is
from
intentional.
explanation
There
of
lives
apparently
and
intentions.
deprived
their
of
victims
any
the
evident
was
was
opportunity
offer
is
action
of
the
to
lost
persons
deprivation
police
it
case
was
as
the
matter
No. 0070
not
police
of
of
adequately
20
CH. 8
by
protected
number
unclear
by
attack
by
attack
the
but
no
the
allegation
the
process
that
of
6(1)
killing
in
However,
it
probably
probably
certain
132
emphasis).
133
as
terms
is
deprived
of
submitted
HRC
was
See
pr. 8.22.1
Doc. A/2929,
below
on
life
HRC's
the
and
the
of
opinion
two
respects.
her life.
In
this
term
substitute
not
accepted.
more
and
necessity
p. 137,
When
to
This
obviously
that
shock
characterized
as
"arbitrary"
limited
intentional
to
not
include
or
negligent
134
circumstances.
Doc. A/37/40
unexpected
right
of
"intentional".
proposal
is
could
respect.
drafting
the
the
HRC was
in
violated
the
the
by
the
arbitrarily
life
but
justify
been
that
It
times.
caused
this
facts
had
been
of
during
intentional
in
the
of
G had
proposed
"arbitrarily"
when the
police
patrol
from a
had already
died
the
of
violation
is
fundamental
death
G's
that
is
It
noted.
patrol
of causation
is defective
view
deprivation
was
causation
interesting
it
the
of
attack
of
is
article
Firstly,
can
HRC determined
action
police
process
explanation
On its
be
points
the
the
heart
G's
that
by
required
as
that
revealed
she
before
being
several
shot
report
heart
See
17.
how
exactly
medical
be
important
of
"caused"
was
Colombia
of
6(1)11.132
article
A
law
the
553
133
difficult
reckless
and
killing
An
to
proportionality.
deprivation
killing
prs.
was
for
is
would
in
(my
13.2,13.3
ch. vi,
pr. 3; Doc. A/3746
the
on
comment
general
pr. 94.
article
134
"intentionally"
in
The term
does
art2
appear
interesting
is
to compare
ECHR. It
the decision
of the
Guerrero
EUCM in
the
HRC in
the
with
opinion
of
X v. Belgium,
A. 2758/66,
12 YBECHR p. 174
admiss. decn.,
husband,
(1969).
The applicants
bystander,
an innocent
by
bullet
killed
fired
(it
a
was
arguendo)
was assumed
range
short
at
(Footnote
Continued)
CH. 8
HRC
The
then
6(1),
article
violate
an
effect
arrest
of
In
the
this
case
suggesting
that
were
victims
or
surrender
In
suspects.
"proportionality
as
an
element
allegedly
Presumably
principle
it would
namely,
of
to
or
the
circumstances
taking
defence
the
or
self-defence
the
which
indicate
to
proceed
in
circumstances
police
when
prevent
are
case
then
out
action
explanation,
HRC introduce
way
to
in
the
the
the
constituting
in
the
evaluation
a
violation
and
of
requirements
of
scrutinized.
elements
the
to
opportunity
no
any
The
necessary:
was not
offer
to
necessary
135
escape.
factual
the
warning,
not
in
or
closely
no
might
necessary
an
given
this
life
of
the
of
some
others
HRC pointed
the
554
only
the
principle
law
enforcement"
the
of
were
of
circumstances
6(1).
article
important
this
of
application
that
it
be in extremely
cases
rare
would
only
136
force.
be permissible
to use lethal
(Footnote
Continued)
The EUCM held
in quelling
by a constable
a riot.
engaged
did not intend
to kill
the Constable
that
and therefore
his
did
2(1)
could
action
not violate
article
and that
2(2)
ECHR.
be justified
article
as self-defence
under
465;
5
EHRR
EUCM,
U.
K.,
A. 9013/80,
Farrell
See also
v.
EUCM, n. 171 below.
Stewart
v. U. K.,
135
provided
These
specifically
circumstances
are
the
in
2
among
for
ECHR.
The
also
were
article
during
the drafting
of the covenant.
proposed
exceptions
(a)
in
HRCion
the
were:
The
exceptions
proposed
in
imposed
with
death
accordance
of
sentence
execution
defence
(b)
law;
killing
in
of
or
the
self-defence
lawfully
taken
(c)
from
death
action
resulting
another;
(d)
insurrection,
riots;
or
to
suppress
rebellion
lawful
in
or
to
killing
arrest
attempting
affect
(e)
in
lawful
the
custody;
escape
of a person
preventing
in the
killing
authorized
measures
case
of enforcement
(f)
in
killing
defence
Charter;
by
the
persons,
of
in
State
civil
or
of
grave
or
circumstances
property
(g)
killing
for violation
For more
of honour.
commotion;
details
see Bossuyt,
n. l above,
pp. 115-119.
136
The kidnapping
of
an Ambassador,
particularly
by
death
in
if
threats,
some
accompanied
might
be viewed
to
as a serious
circumstances
offence
enough
(Footnote
Continued)
"
CH. 8
8.20
The
second
view
that
article
Case137
No. 0070
Decree
life
to
contrary
husband
to
article
State
party
to
ensure
by
expression
whose
law
is
this
(Footnote
found
that
the
the
approach
respect.
be
to
effectively
deprivation
to
obliged
the
law.
right
139
obligation
in violation
taking
adequately
Legislative
HRC's
on
a
of
to
of
life
the
view
compensate
to life
was
The
the
protect
be invoked
HRC expressed
constitutionality
of the HRC is
Finally,
not
of
failure
could
to
its
existence
to
was
of
HRC expressed
the
in the
Guerrero
violated
life
to
was
arbitrary
6.138
The
amending
clear
notwithstanding
140
law.
The
the
the
which
been
amounted
because
it
law
and
protected
in
6 had
in
the
that
on
G's
was that
right
by
law.
The mere
protected
right
justify
basis
555
view
State
G's
duly
is
party
the
Covenant
in
domestic
positive
commendably
the
two bases
of the
Continued)
justify
lethal
force
if
for
to
example,
necessary,
the arrest
On the facts
of the kidnappers.
of the
effect
however,
Guerrero
the
case,
was clearly
action
police
Federal
Cf.
decision
the
the
unnecessary.
of
46 p. 160,
Court
Constitutional
the
FRG, B VerfGE
of
in
1977-78
UN Yearbook
Human
Rights
p. 53
cited
on
human
(1982),
to protect
on the
obligation
of a State
individual
by
life
been
has
where
an
abducted
terrorists.
137
Doc. A/38/40
p. 137.
138
that
shall
duty
it
Ibid.,
HRCion
In
the
was stated
pr. 13.3.
"everyone's
the draft
to life
the
provision
right
be protected
by law" was intended
the
to emphacize
life,
to protect
Doc. A/2929,
of States
pr. 4.
ch. vi,
139
Ibid.,
to the
ICJ
Study,
pr. 15. According
ch. 7,
67,
1
law
the
to have
above,
p.
relevant
effect
n.
ceased
the
lifted
in
1982.
June
state
of
siege
when
was
imposed
in
Subsequent
1984,
states
of
siege
were
see
Rights
Status
Human
International
Instruments,
of
(1987).
Extra-judicial
killings
pp. 60-62
and
disappearances
investigations
continue
are
while
by death
in
threats,
the
obstructed
see
e. g.,
accounts
International
Amnesty
the
Annual
Reports.
140
See n. 126
above.
CH. 8
HRC's
"arbitrary"
the
covers
8.21
in
HRCion
the
and
specifically
taking
142
the
life.
that
the
the
text
of
of
Against
this
deprived
was
not
right
the
criticized
to
be
articles
and in
use
express
It
ambiguous.
"illegally"
meant
should
was
the
again
142
143
144
145
in which
are articles
of
See n. 126
above.
See n. 135
above.
Ibid.,
Ibid.,
the
it
had
at
argued
that
any
incomplete
Assembly
ch. vi,
and
that
the
greater
to
than
the
or
been
of
idea
and
"arbitrarily"
both
it
in
various
it
several
Human
Covenant.
was
that
and
in
used
opinion
where
Others
because
of
draft
of
necessity
detail.
term
the
Declaration
of the
differences
General
Doc. A/2929,
to
recognized
articles
the
right
"arbitrary"'
that
Universal
prompted
the
in
"unjustly"
as
which
contained
obviate
term
argued
in
a general
144
It
was
exceptions.
be
that
no one should
indicate
that
would
generally
or
certain
141
state
text
and
the
of
should
exceptions
exceptions
retained
in
Committee
absolute
argued
the
without
possible
out
setting
term
was
a clause
providing
life
his
"arbitrarily"
of
right
failed
it
that
explained
the
the
was
circumstances
be
necessarily
impression
the
would
of
violate
approach
tend
to
would
give
importance
to
was being
given
143
final
The
HRCion
right.
formulation
it
article
Colombian
the
Covenant
not
as
law
a domestic
by
the
exhaustively
life
would
enumeration
such
of
killings
under
constitutional
that
argued
illegal
defence
drafting
the
During
a legal
be
also
just
than
adjudged
141
Court.
Supreme
can
more
had
offenders
had been
that
it
together
view
556
Rights
145
The
the
Third
meanings
pr. 2.
p. 29.
Covenant
appear
CH. 8
were
or
for
suggested,
at
pleasure;
depending
without
the
on
based
cause
without
adequate
will
alone;
law;
not
or done
determining
capriciously
principle;
despotic;
tyrannical;
by any fixed
governed
by the Netherlands
proposed
upon
146
It was
standard".
6 should
that
article
2 ECHR in specifying
or
rule
"fixed
example,
557
follow
the
formulation
of
article
in which
deprivation
of
cases
147
however,
be deemed lawful.
life
The majority,
would
148
is
favour
formulation.
It
did
also
such
a
not
to the
interesting
HRC drew attention
the
to note
that
fact
the
that
police
the
deprived
action
due
of
the
of
suspects
all
in
laid
down
the
"protections
process
14 9
in
Third
discussions
the
During
Covenant"
the
.
term
the
that
Committee
some
argued
representatives
"arbitrarily"
the
expression
with
was
synonymous
the,
due
"without
the
as
false
to
150
right
arrest
8.22
In
the
task
deprivation
and
process
thus
conclude
such
of law"
and implied
fair
trial
and protection
their
considerations
under
in
what
determining
of
of
life
violate
other
will
be
than
that
pr.
no
114.
O. P.
the
clearly
See
It
arbitrary
as
is
defined
Bossuyt,
Doc. A/3764,
The proposal
pr. 115.
11 abstentions.
50 votes
to 9, with
151
the
to
difficult
meaning
n. 1
of
above,
651.
148
150
HRC have
the
circumstances
characterized
6.151
article
Doc. A/3746,
pp. (123-124).
147
Doc. A/C. 3/L.
149
against
146
by
guarantees
above.
Doc. A/3764,
pr. 114.
was
rejected
See
C. K. Boyle,
Arbitrary
Of
The
Concept
Of Life,
in B. Ramcharan
(1985),
Deprivation
(ed. ),
n. 1
pp. 221-244.
above,
CH. 8
the
emerged
from
Case153
the
term
Guerrero
its
under
inconclusiveness
There
seems
from
the
8.22.1
comparative
17
article
comment
the
article
17,
term
take
place
154
See pr.
of
some
in
Doc. A/38/40
above
develop
on
and
or
to
cases
by
clear
no
that
to
the
by
States
can
own
that
comment
general
terms
interference
envisaged
the
evidence
restrict
In
the
basis.
case
a general
definition
that
its
apply
by
case
meaning
and
and
leave
preparatoires
means
authorized
8.21
and
article
completed
156
Covenant.
"unlawful"
Interference
153
terms
to
the
except
of
matters
enforcement.
limited
albeit
the
travaux
recently
of
of
law
of
preparatoires
HRC gave
"The
152
the
'arbitrary'
of
to be no ordinary
HRC has
The
the
article
that
to
circumstances
approach
travaux.
155
flexibility.
particular
requirements
of the
flexibility
the
understanding
on
the
its
persuasive
with
is
little
doubt
HRC with
in
to
jurisprudence
In
process.
some indications
HRC revealed
"arbitrary"
by reference
determining
In'
152
drafting
the
to
approach
intention,
necessity
proportionality
558
the
only
of
can
law.
take
thereto.
notes
p. 137.
the
Similarly
Fawcett,
pp. 33-40.
jurisprudence
IACM and IACT in respect
of article
of the
'Baby
1 ADRD and article
4 AMR. See The
Case,
Boy'
n. 25
In The
D. Shelton,
Abortion
To Life
And The Right
above;
"Baby
2
System:
Boy",
Inter-American
The
Case
Of
The
(1981)
The
FIRLJ
D. Weissbrodt
R. Andrus,
pp. 309-318;
and
To Life
During
Right
Armed
Peoples
Conflict:
Disabled
U. S.,
29 Harv. ILJ
International
(1988)
v.
pp. 59-83.
See
155
On The
See articles
Law Of Treaties
156
adopted
G. C. 16 (32)
by the HRC at
31 and 32 Of
(1969).
the
Vienna
Convention
(article
6,
17),
Doc. CCPR/C/21/Add.
its
791st
(23 March 1983).
meeting
CH. 8
basis
on the
place
the
with
of
law,
provisions,
559
itself
which
aims
and
must
comply
objectives
of
the
Covenant.
The
expression
to
relevant
in
for
the
"arbitrary
interference"
protection
17.
In
of
the
is
right
also
provided
the
Committee's
the
article
view
"arbitrary
interference"
expression
can also
extend
interference
for
to
law.
the
The
provided
under
introduction
is
the
of
concept
of
arbitrariness
intended
to
for
provided
the
provisions,
and
aims and
in
any
be,
should
interference
even
in accordance
with
that
guarantee
by law
be
should
objectives
of
interpretation
in
the
8.23
to
the
with
of
Guerrero
In
consider
persons
were
16 1
executed.
157
An
to the
given
the Covenant,
159
160
pp. 155-156.
161
reports
human
The
by
rights
HRC
incident
individuals
situation
to
the
the
HRC had
Suriname160
v.
in
incident
party
argued
that
fourteen
which
to
subjected
violence
a coup
and
attempt
3-4.
8.17-8.20
Doc. A/40/40
is
definition
others
interpretation
autonomous
"suit
expression
at law"
see ch. 10 below.
See prs.
is
what
example
State
prs.
an
immense
for
arrested,
The
of
beyond
the
of
the
6 under
the O. P.,
159
discussed
above.
notorious
Ibid.,
158
and
in
having
as
article
Case,
Baboeram
approach
Covenant
reasonable
event,
157
particular
circumstances"
interpretation
"arbitrary"
This
of
Covenant
is
autonomous,
meaning
158
importance.
The
term
clearly
goes
lawful
laws.
This
under
national
consistent
the
has
also
in article
been
14 of
above.
.
was
187.
See
Rodle y,
n. 1
above,
in a number
also
of
considered
bodies
investigating
the
and
in
IACM
Suriname,
e. g.,
see
(Footnote
Continued)
CH. 8
had
been
had
foiled
been
killed
repeating
"it
that,
persons
the
while
that
same
note
40(4)
persons
162
escape.
After
from
lives
as
a result
that
police
the
State
The
of deliberate
deprivation
party
that
these
proving
166
Thus the
escape".
has
of
failed
to
evidence
persons
were
shot
trying
to
HRC took
the
their
view
life
regards
the
victims
were
the
6(1).
article
deprivation
Guerrero
Case
HRC using
the
of
deprived
167
As
arbitrarily
of
"intentional"
the
view
165
to
arrested
any
violation
in
of
6,163
comment
on article
Guerrero
Case164
as in the
fact
15 prominent
the
that
general
was evident
had lost
their
the
in
number
trying
its
of
by the military
action
life
was intentional.
submit
while
part
HRC took
the
that
and
560
life
of
168
It
apply.
its
general
in
Covenant
of
the
same comments
interesting
also
is
comments
view
under
under
the
as
to
article
optional
Protocol.
8.24
The
HRC
disappearances
1
Colombia69
(Footnote
has
had
consider
killings.
and
H. R.
to
was
In
allegedly
the
Herrera
arrested,
problems
of
Rubio
v.
tortured
by
Continued)
1983,
in
On
June
A
Report
Visit
to
Suriname
Of
61,
(1983),
Report
OAS/Ser. L/II.
Doc. 6 Rev. 1.
ch. II;
And
The Special
Rapporteur
On Summary
Of The HRCion
Report
Executions,
Ax. 5;
Arbitrary
Doc. E/CN. 4/1985/17,
Rights,
The
Dutch
Human
Of
Lawyers
For
Committee
Doc. E/CN. 4/1983/55.
162
163
164
165
166
167
168
169
in
Doc.
Doc. A/40/40
See pr. 8.6
See prs.
Ibid.,
pr.
pr.
pr. 6.3,13.2.
above.
8.17-8.20
Doc. A/40/40
Ibid.,
p. 187,
above.
8.19.
p. 187,
pr.
14.1.
15.
above.
Doc. C/31/D/161/1983.
(1988).
A/43/40
The
view
will
be published
CH. 8
561
Colombian
him
threatened
military
authorities
who also
he signed
that
his
unless
a confession
parents
would
in
killed.
Subsequently
persons
civilian
clothes
wearing
others
as
of
of the
members
H. R. 's parents
later
the
killings
member
killings.
As
out
6 the
article
A
the
concerning
that
claimed
established
had taken
part
Forces
Committee
believe,
to
in
the
the
HRC expressed
Emma Rubio
been
de
to
In
murderers.
to its
general
States
parties
which
and
impartial
disappeared
persons
a
Committee
has
submissions
in
this
out
inadequate
obligations
circumstances
of
the
noted
in
under
10.2.
Ibid.,
pr.
Ibid.,
pr. 10.3.
the
article
light
which
life.
may
the
State
2 of
the
The
party's
carried
appear
the
an
and
to
of
and
missing
right
however,
which,
of
by
investigations
the
concerning
case,
of
cases
in
duly
6
that
alia,
thoroughly,
body,
violation
the
refers
facilities
effective
investigate
appropriate
has
and effective
specific
disappearance
the
establish
to
and
article
concerning
inter
provides
prevent
procedures
involve
(16)
take
should
to
measures
individuals
Committee
the
connection
Covenant,
the
no
comment
Herrera
evidence
conclusive
identity
the
of
establish
this
author's
bear
persons
Jose
of
is
there
the
of
military
deaths
the
Herrera,
produced
light
the
Colombian
for
responsibility
that
considers
in
that
allegations,
171
A week
discovered.
were
carried
party
regards
the
reason
170
parents
was
Armed
away
home
the
view,
"Whereas
been
them
H. R. 's
state
the
of
170
following
of
took
and
and
themselves
to
went
by force.
counter-guerrillas,
the
which
identifying
uniforms,
corpses
of
investigation
judicial
no
military
be
State
Covenant",
to
have
party's
171
CH. 8
basis
On this
HRC expressed
the view
"article
6, because
of,
the
been
a violation
failed
to
take
appropriate
disappearance
and
Emma Rubio
de Herrera
that
the
further
HRC's
respects.
or
preventative
Unfortunately
considered
have
could
important
172
173
174
is
clearly
not
H. R. 's
omission
to
when,
in
the
the
as
This
will
and
stated
included
there
to
right
what
State
disappearance
is
usually
of
number
the
the
HRC
that
measures
parents.
The
indicate
prevent
Herrera
State
party
173
to
the
investigate
suggests
aspect
appropriate
taken
of
offences.
interesting
party
prevent
Jose
172
the
the
of
positive
it
does
the
the
had
there
State
the
effectively
murders".
on
view
it
Firstly,
to
their
obligations
investigation
The
killing
and
that
to
measures
killing
of
subsequent
for
responsibility
562
life.
the
is
a
174
HRC
party
and
particularly
be the
case,
11.
Ibid.,
pr.
Ibid.,
pr. 12.
In A. 6040/73,
Cf.
X. v. Ireland,
admiss. decn.,
that
(1973),
16 YBECHR p. 388
the
complained
applicant
her
to
severely
the
the
give
refusal
of
authorities
free
treatment
daughter
disabled
a medical
card and thus
her
breach
benefits
of
a
welfare
constituted
and other
did
but
life.
EUCM
not
daughter's
to
The
raised
right
is
2
the
the
scope of article
question
of whether
pursue
taking
the
of
limited
to
the
of
negative
prohibition
for
in
more
life
call
or could,
certain
circumstances,
U.
K.,
X.
7154/75,
Association
V.
In
A.
action.
positive
the risks
of a
14 D. & R. p. 31 (1979),
the EUCM examined
that
concluded
and
of
voluntary
vaccination
programme
by
the
the system
established
of control
and supervision
its
to
to
State
obligation
was sufficient
comply
with
its
In
life
Convention.
2
the
under
article
of
protect
"the
it
that,
EUCM
the
that
stated
considered
opinion
2 imposes
first
obligation
of article
sentence
a broader
in
than
State
that
the second
the
sentence.
contained
on
by
"everyone's
be
that
life
The concept
protected
shall
from
the
State
taking
law"
to refrain
not
enjoins
only
"intentionally"
but,
further,
life
to take
appropriate
life.
to
interpretation
This
was
safeguard
steps
in
Stewart
EHRR p-409A. 10044/82,7
v. U. K.,
affirmed
69 See also
A. 9360/81
on positive
obligations
V. Ireland,
A. 9825/82
8 EHRR 49;
32 C. D. 211;
V. U. K. and Ireland,
A. 10565/83
v. FRG, 7 EHRR 152.
CH. 8
State
the
denies
party
in
personnel
HRC's
be
thoroughly
and
is
competent
investigations,
those
however,
Again,
being
more specific
investigation
the
under
obligations
8.24.1
In
to
in
precarious
v.
a military
M's
Kinshasa.
hospital
to
report
of
the
result
of
this.
They
M to
the
177
published
178
had
that
in
failure
and
accordance
law,
On article
The
see
questioned.
with
2 see
pr. 8.2.
cited
at
the
the
as
of
public
the death
who
officer
questioning.
consent
178
in
accept
by a
result
instrument.
State
the
clarifications
duty
the
obligation
the cases
of
his
party
to
concerning
4(2)
article
customary
under
in n. 116 above.
ch. 6 above.
Doc. C/31/D/194/1985
in Doc. A/43/40
(1988).
Ibid.,
of
into
for
the
not
the
military
with
dies
a report
as
a blunt
summoned
concerned,
the
Cf.
be
be
in
an enquiry
the
hospital
to
by
seen
in
M was
requested
conduct
information
international
176
family
refused
noting
any
explanation
died
M had
caused
officer
had
After
175
the,
later
a hospital
brought
to
HRC did
The
of
party's
explanation
that
was
probably
the
in
The
accident.
to
M was
subsequently
body.
M's
particular
superiors,
matter
were
not
kidnapped,
allegedly
condition
police
office
prosecutor's
in
M,
of
the
tortured.
and
that
author's
furnish
camp
preferred
wounds
However,
M was
traffic
traumatic
the
of
175
for
criticism
inadequacies
on a State
176
Covenant.
elucidating
2 of
traffic
such
for
importance.
particular
Zaire177
relatives
identify
physician
delivered
not
physical
forensic
The
the
article
Miango
taken
a
and
In
responsibility
investigated,
and effectively
to determine
the
adequacy
to
as
official
the
assumes
critical
HRC is
to
open
the
of
concerned.
that
view
murders
must
it
that
involvement
the
incidents
the
the
circumstances
563
(29
Oct
1987).
To
be
CH. 8
Protocol179
Optional
the
of
facts
that
the
the
Covenant.
and
murders.
political
to
The
punishment
information
that
view
alia,
of
was
charged,
he
which
due
of
also
facts
the
tried
could
the view
expressed
"Paragraph
2
sentence
force
and
179
180
181
182
183
184
at
that
of
death
not
time
article
be
may
to
contrary
prs.
See n. 116
above.
(of
the
of
See ch. 4,
it
above.
Doc. A/38/40
p. 134.
,
in
region,
Belgium
was
as
twice
tribunals.
expressed
inter
because
circumstances
M
in
the
the
prs.
10.33,10.40
that
provides
imposed
the
State
provisions
above.
pr. 21(b).
and
violations
(e)
and
commission
4.27-4.33
Ibid.,
article
law
the
with
the
in
of
safeguards
183
This
provisions.
184
M
elsewhere.
with
HRC
6. On this
the
dealt
of
for
that,
of
accordance
(d)
those
is
thoroughly
Shaba
the
resided
enjoy
in
breach
alleged
(b)
effectively
enshrined
decision
the
of
before
,
,
convicted
and
not
v.
disclosed
14 (3) (a)
articles
process
aspect
had
capital
official
HRC concerning
182
Zaire.
M,
he
absence
by Zairian
his
In
the
the
Mbenge
refugee.
the
of
in
to
of
Governor
and former
1974 and thereafter
HRC examined
the
in
that
to
responsibility
decision
perhaps
terms
obligation
of
attempt
held
the
significant
citizen
in
Zaire
sentenced
the
of
in
persons
investigate
effectively
181
The most
is
6
article
left
terms
no
view
6(1)
article
made
example,
for
account
in
or
8.25
Zairian
for
the
expressed
of
HRC
the
violation
to
HRC
a violation
However,
responsibility
custody180
the
disclosed
this
explain
564
below.
of
the
only
in
party)
in
the
of
crime
the
CH. 8
This
Covenant".
law
penalty
was
the
death
the
provisions
of
penalty
was
death
law
State
in
article
14(3)
death
sentence
leads
is
It
to
establish
to
article
6 of
only
that
referral.
of
In
will
failure
of
party
render
6(2).
article
185
not
a more
of
to
any
the
the
of
author
the
to
in
therefore
and
substantive
Considering
drafters
aspect
in
relation
this
penalty
the
expression
wide
of
a
range
how
of
HRC states
law
procedural
provision
imposed
and
referral
the
or
any
after
its
in
HRC
the
of
members
understanding
186
adopted.
itself
the
death
the
acknowledge
decision
with
of
that
was
to
interpretation
this
informed
decision
this
preparatoires
Certain
the
comply
that
contrary
protection
interpretation
terms
the
of
of
reaching
unfortunate
HRC does
provisions
requirements
the
intention
the
accept
is
facilitate
a particular
State
to
that
with
conclusion
travaux
Covenant.
the
It
the
thereby
was
double
willing
views
the
it
this
were
the
to
whether
ascertain
the
before
that
referred
the
6(2)11.185
article
understood
HRC
the
of
that
failure
the
Covenant,
the
to
the
relevant
to
contrary
also
with
which
of
adcordance
against
pronounced
imposed
were
of
violation
in
the
substantive
not
and
accordance
respect
communication
provisions
was
Consequently,
to
party
the
application
Covenant
imposed
Covenant.
the
of
the
imposed
the
therefore
and
in
procedural
the
both
that
requires
and
565
that
of
Covenant
the
of
violation
of
rights
6(16),
G.
C.
17.
Doc. A/38/40
134,
See
also
p.
pr.
to n. 49 above.
pr. 7, text
n. 3 above,
186
in
had referred
draft
The text
of the HRCion's
6(2)
being
to
to
a death
penalty
contrary
not
article
"principles
Human
the
Universal
Declaration
the
of
of
than
to the
Rights"
Covenant,
Doc. A/2929
rather
ch. vi,
6(2)
Article
that
largely
p. 29.
as
and
adopted
was
in
Third
the
a report
Group
of
proposed
a Working
of
(A/C. 3/L. 655
Committee
Corr. 1),
A/3764,
prs. 102,
and
116-117.
CH. 8
by
protected
Covenant
the
6(2)
article
(articles
manner
execution
mode of
188
if
it
7),
were
inhuman
were
imposed
on
which
if
the
evidence
obtained
(article
privacy
by
guaranteed
in
violation
14,
article
been
penalty
was
the
under
accords
States190
this
17),
if
imposed
for
during
that
and
question.
of
India191
192
all
the
the
some
the
but
demands
the
conviction
vague
consideration
189
The
process.
the
of
had
to
right
a freedom
death
the
generalized
of
of
EUCT has
yet
article
HRC's
Courts
Supreme
the
been
who had
if
imposed
9),
concerned
if
example,
of
in
(article
persons
the
the
imposed
187 if
crime
for
of
death
degrading
a person
(article
ground
the
example,
it were
2,3,26),
or
of
Covenant,
reporting
with
to
the
noted
offences
if
or detained
did
satisfy
not
arrested
a trial
after
for
is
decision
HRC's
violate
might
penalty
a discriminatory
arbitrarily
the
Thus,
significance.
enormous
566
approach
the
to
United
rule
on
187
States
United
decision
Cf.
the
The recent
of
2d 262
in
95 L Ed.
Court
Supreme
McClesky
Kemp,
v.
in which
(1987)
the death
that
M argued
unsuccessfully
in racially
discriminatory
manner.
was applied
penalty
188
the
decision
See the
EUCM concerning
the
of
in
death
face
the
to
penalty
of
extradition
an applicant
373.
6
EHRR
U.
K.,
10479/83,
A.
Kirkwood
the U. S.,
see
v.
189
See pr. 8.8 above.
190
inter
26-27,
1
See Pannick,
citing,
n.
above,
pp.
See also
Herbert
272 U. S. 312 (1926).
v. Louisiana
alia,
in Mootoo
Council
the decision
v. Attorney
of the Privy
ibid.,
[1979]
in
1
Pannick,
1334,
WLR
cited
-General
p. 36.
191
inter
ibid.,
See Pannick,
27-29,
citing,
pp.
[1978]
1 S. C. C.
Maneka Gandhi
v. Union
alia,
of India,
248.
192
Article
6(2)
to article
from
the
cites
CH. 8
Mbenge193
In
of
M claimed
politically
purely
567
he
that
had
motivated
been
and
the
victim
substantially
unfounded
or
substantive
of
provision
law
procedural
for
Covenant,
the
breached
State
the
of
example,
any
2,3
article
or
26.195
8.26
Lafuente
In
that
alleged
article
6(4)
Decree
granting
were
not
Penarrieta
had
there
been
because,
released.
them
197
inter
a violation,,
notwithstanding
an
the
amnesty,
Although
the
Bolivia196
v.
the
authors
of
alia,
Presidential
alleged
HRC referred
victims
this
to
in
matter
(Footnote
Continued)
Case,
A, vol. 30,
EUCT, Series
and
Times
pr. 49 (1979),
A,
Case,
Series
Winterwerp
EUCT,
pr. 45
the
vol. 33,
the
is uncertain
"It
(1979),
that,
whether
and comments
Indian
like
American
Court
the
and
European
will,
to embrace
develop
the concept
Supreme Courts,
of "law"
due
law
process
the
and
of
critoria
of
rule
substantive
three
is
the
is
that
law.
most
What
certain
of
have
in
the
world
constitutional
courts
prestigious
in
that,
the
constitutional
a
of
context
accepted
See
"law"
is
also
document,
a statute
not necessarily
.
the decision
of the IACT in n. 60 above.
193
194
p. 134.
Doc. A/38/40
Ibid.,
prs.
9,15.
195
"political
does
The Covenant
any
contain
not
Such
an
to
capital
punishment.
exception
offence"
but
in
HRCion
not
the
was
was
proposed
exception
4(4)
AMR
6.
Cf.
Doc.
A/2929,
article
ch.
vi,
pr.
adopted,
"In
that,
capital
shall
provides
case
no
which
inflicted
be
for
or
offences
political
punishment
OC/3/83
See Advisory
Opinion
of
common crimes".
related
the IACT,
n. 39 above.
196
published
197
subsequently
Doc. C/31/D/176/1984
(23
in Doc. A/43/40
(1988).
Ibid.,
prs.
released,
1.9,10.3.
ibid.,
pr.
Nov
The
15.2.
1987).
detainees
To
be
were
CH. 8
its
in
finding
respect
198
of
of
Ibid.,
lacked
sufficient
to other
claims
it.
facts
198
it
inexplicably
568
expressed
no
view
it
The HRC's view
that
prs. 15.2.
states
evidence
to make findings
regard
with
made by the authors,
ibid.,
pr. 17.
CH. 8
569
APPRAISAL.
8.27
Under
the
interpreted
reporting
6
article
obligations
positive
progressive
mortality,
been
For
opinion
general
comment
on
Optional
Protocol
have
academic
and
context
"the
fact
that
is
to
which
the
the
Covenant.
is
economic
the
applicability
interpreted
liberally
would
the
199
200
201
202
203
204
article
obligations
205
above.
HRC
the
to
of
civil
in
This
8.3-8.4
pr. 5.
particular
Fawcett,
p. 37.
the
is
life,
has
While
liberal
202 in
stressed,
to life;
right
liberal
a
inevitably
If
the
some
and
question
of
to
procedure
For
into
social
and
raises
example,
a
how
alleged
See
also
ch. 6 above
immediacy
of
on the
on
the
Text
at
communication
literature
in
pr. 8.3
above.
n. 174.
Ramcharan,
See
pr. 8.4
above.
2 and ch. l,
pr. 1.16
in the Covenant.
See
the
above.
above
See in
first
obligations
leads
to
life.
to
life
to
Protocol
optional
if
for
political
turn
right
right
and
its
6.201
the
203
the
there
to
progressive
inevitably
also
of
G. C. 6/16,
law".
have
under
that
right
but
by
respond
See prs.
life,
as
in
Fawcett
Professor
not
concept
204
It
between
205
rights.
overlapping
the
of
a
infant
schemes
in
echoed
to article
aspect
have. pressed
of
protected
is given
such
Views
suggested
also
ECHR,
it
clearly
expressed
6.200
article
positive
the
of
interpretation
introduces
HRC as
interpretation
the
are
was
approach
commentators
positive
which
matters
health
public
and
the
of
or
of
wide-ranging
example,
malnutrition
199
This
raised.
preventative
encompassing
some
nature.
collective
many
as
has
HRC
the
procedure
cited
nl
in
above.
ch. 1,
pr. 1.16
CH. 8
violation
failure
be
the
light
of
and
its
first
be
would
nature
and
economic
cases
European
of
social
involving
illegitimate
8.28
The
interpretation
in
its
task
the
general
approach
article
by
interpreting
obligation
causation
rights.
overlap
in
on
a State
How, if
The
and
trade
rules
of
treaty
in
rights
that
were
the
drafters
organ.
not
no
21 2
interpret
being
interpreted
realized
or
danger
to
deal
the
rights
union
in
to
the
approach
accordance
211
interpretation.
The
much
of
had
organ
is to
in
reproach
all,
ECHR and
the
of
at
The
EUCT has
between
matters
210
party?
justiciability
the
human
any
rights
human rights
guarantees
faith
procedure
6.208
What
a victim?
be established?
concerns
209
good
results
obligations
intended
on
of
of
could
in
materiae207
comment
children.
duty
ratione
matter
reporting
HRC as
Charter
The
the
problem
Social
and
the
the
general
206
the
of
infant
reduce
under
the
of
process
to
malnutritiom.
inadmissible
general
basis
the
on
authorities
practice
petition
the
debated
its
the
Who could
could
State
or
reduce
declared
life
to
right
the
of
mortality
hardly
with
the
of
570
with
If
that
contain
even
perhaps
may be levelled
of
206
too
in
decision
Cf.
the
EUCM
the
of
n. 174 above.
207
See ch. 4, prs. 4.53-4.63
above.
208
See prs. 8.3-8.4
above.
209
See ch. l,
pr. 1.16 above.
210
See D. J. Harris,
Social
The European
p. 271 (1984).
211
See Hassan,
ch. 4, n. 361 above.
not
at
positive
A. 7154/75,
Charter,
212
For
HRC in
the
a very
significant
view
under
the
this
26 of
the
see
respect
cases
concerning
article
in
has
It
considered
covenant
ch. 4, pr. 4.55-4.58
above.
that
been
decision
the
in
Young,
argued
EUCT
the
of
James
U. K.,
44 (1981)
EUCT,
and Webster
v.
Series
A, vol.
(Footnote
Continued)
CH. 8
interpretation
and liberal
leave
States
discourage
Similarly,
into
rights
life
to
214
war.
and
Already
of
violated
even
"adequate"
of
the
6.
and
216
to
reasons"
are
persons
(Footnote
contradicted
concerning
213
commented
if
may
and
economic
was
article
on
and
obligations
balk
the
at
this
general
comments
and in particular,
HRC have
thorough
violations.
of
already
article
alleged
"serious
There
war,
within
the
considered
aspects
full,
HRC's
We have
215
comments.
8.29
the
social
when
interpretation
in
manifested
may
of
petitions
system
213
intentions.
their
liberal
The
aspects
to
contrary
of
the
parties
it
that
obligations
undertaking
states
introduction
their
of
from
is
rights
uncertain
States
other
at
all.
indirect
right
parties
of
571
clearly
is
also
the
concerning
thermo-nuclear
those
general
it
has
of
cases
number
to deal
with
some important
is a "clear
duty"
to make
small
had
There
inquiries
effective
HRC will
believe
that
The
it
cannot
obligations
to
or "appropriate"
held
in
custody.
be
state
concerning
that
6
article
for
are
has
been
217
proved.
conclusively
account
there
and
to
take
the life
to protect
measures
218
There
obligations,
are
Continued)
the
closed
clear
shops.
intentions
of
the
drafters
Charter
both
that
Social
Note
the European
and
do
ICESCR
the
concerning
not
make
any
provision
24 and
The Constitution
articles
of the ILO,
petitions.
for
from trades
26, provide
employers
complaints
unions,
but not individuals.
and States,
214
See prs. 8.11-8.12
above.
215
See pr. 8.13 above.
216
217
218
and
114.
Bleir
Ibid.,
Barbato
v.
Uruguay,
pr.
8.15
above,
n. 97.
at
n. 102.
at
v.
Uruguay,
pr. 8.16
above
at
notes
113
CH. 8
though
not
killing
spelt
of
potential
right
family220
to
and
the
protect
interpreting
The
interpretation
to
its
general
is
requires
the
the
220
in
pr. 11.
221
at
n. 139.
222
223
224
225
Colombia,
226
Rubio
See
See
the
to
proportionality
justification.
and
the
222
an autonomous
has
The
HRC
the
that
requiring
in
the
application
as
laws
controls
which
authorities
219
of
introduced
that
comments
and stressed
225
"supreme
right,
and
strict
circumstances
by
various
of
procedural
is imposed
to the
penalty
are not contrary
224
the Covenant.
Finally,
the HRC has made
a death
in
provisions
of
life
6(2)
and
which
use
"arbitrary".
article
substantive
a violation
17 supports
223
on article
on
interpreted
of
HRC have
the
enforcement
comment
general
are
finding
necessity,
law
of
There
the
to
example,
compensate
does not
a law which
adequately
221
in
life.
More
specifically,
amend
intention,
requirements
219
and
for
to
right
"arbitrarily"
of
concepts
upon
disappearance
the
prevent
victims.
attendant
life,
to
obligations
the
to
out,
572
v.
pr. 8.24
Colombia,
e. g.
Miango
Guerrero
v.
above.
See Mbenge
Zaire,
G. C. 6/16,
pr. 8.18.
See pr. 8.6
v.
pr. 8.2
above.
on
pr. 8.24.1
prs.
of
the
life
above,
8.17-8.20
above
ibid.
pr. 8.25
above
above.
Colombia,
Colombia,
right
article
deprived
Zaire,
v.
v.
See Guerrero
be
may
226
State.
the
of
that
limitations
and
a person
the
at
above.
n. 3.
Guerrero
v.
CH. 9
9.
CHAPTER
9.1
7 No one
inhuman
cruel,
particular,
to
Article
10.
All
with
dignity
of
Accused
their
status
For
art.
human
be
be
subject
be
and
subjected
torture
or
In
or
punishment.
his
without
to
free
treatment.
of
with
liberty
their
respect
for
be
shall
inherent
the
person.
shall,
segregated
to
to
subjected
treatment
deprived
persons
circumstances,
be
scientific
humanity
the
shall
shall
or
persons
treated
2. (a)
one
medical
shall
degrading
or
no
consent
1.
7.1
ARTICLE
Article
573
separate
as unconvicted
save
from
in
convicted
treatment
exceptional
persons
appropriate
and
to
persons.
XXVI
similar
5 UDHR, art.
prohibitions
see art.
3
ADRD,
ECHR,
On
the
5(2)
5
AFR.
AMR,
art.
art.
drafting
of
7 and
articles
10
Doc. A/2929,
ch. vi,
see
prs. 11-16,39-44;
Doc. A/4045,
prs. 3-22,68-86;
'Guide',
M. Bossuyt,
Amnesty
See
pp. 147-160.
International,
Torture
(1984);
In
Eighties,
The
S. Ackerman,
Torture
And Other
And Unusual
Froms
of Cruel
Punishment
In
International
L.
11
Vand. J. Trans.
Law,
(1978)
pp. 653-707;
C. Bassiouni
An Appraisal
Derby,
and
Of Torture
In
International
The Need
Law and
Practice:
An International
For
Convention
And
For
The Suppression
Of Torture,
Prevention
48 Revue
De Droit
Internationale
(1977)
Penal,
To Life,
pp. 17-114
The Right
; Y. Dinstein,
Integrity
Physical
And
(ed. ),
in
Liberty,
The
L. Henkin
International
Bill
Of Rights
And
Covenant
On
Civil
The
Political
Rights,
(1981);
The
B. H. Klayman,
pp. 122-126
Definition
Torture
In
International
51 Temple
of
Law,
(1978)
L. Q.
P. Koojimanns,
pp. 449-515;
Torture
And Other
Or
Cruel
Degrading
Treatment
Or
Punishment,
Docs. E/CN. 4/1986/15,
E/CN. 4/1987/13;
H. Noor
Mohammed,
Of Law For
Due Process
in
Persons
Accused
Of A Crime,
(ed. ),
ibid.,
L. Henkin
E. Peters,
Torture
pp. 122-126;
(1985);
N. Rodley,
The
Treatment
Of
Prisoners
Under
Law,
International
(1987);
P. Sieghart,
The
chs. l-5,
Law
International
Of
Human
(1983);
Rights,
pp. 159-174
Action
In
U. N.
The
Field
Of
Human
Rights,
pp. 142-174
(1983).
following
The
been
Conventions
have
recently
United
Nations
Torture
Convention
Against
concluded,
(Footnote
Continued)
CH. 9
(b)
juvenile
Accused
adults
persons
brought
and
as
574
be
separated
from
as
possible
for
shall
speedily
adjudication.
3.
The
penitentiary
the
prisoners
system
essential
reformation
and
offenders
be
treatment
7 Under
Article
aim
social
shall
accorded
shall
of
which
be
shall
from
segregated
to
Reporting
adults
their
of
their
Juvenile
rehabilitation.
appropriate
The
treatment
comprise
age
be
and
and
status.
Process.
Introduction
9.2
Article
has
been
3
40(4).
purpose
7 is
the
subject
In
that
of
article
(Footnote
in
non-derogable
of
general
7 was,
any
a General
comment
"to
circumstances.
Comment
the
protect
under
it
article
HRC stated
that
the integrity
the
and
Continued)
(1985),
(1984)
U. N. Doc. A/Res/39/46,23
1027
24
ILM
and
535
(1985);
ILM
European
The
Prevention
Convention
For
Suppression
And
Or
Degrading
Of
Inhuman
Torture
And
Treatment
Or Punishment,
Inter-American
No. 126;
E. T. S.
(1985),
Convention
to
Torture
Prevent
Punish
And
O. A. S. T. S.
67,25
(1986).
See
the
519
ILM
also
following
international
instruments,
Minimum
Standard
For
by ECOSOC
Rules
The Treatment
Of Prisoners,
approved
in
Resn. 663C
(XXIV)
(1957)
additional
an
with
and
in
(1977);
(LXII)
Declaration
ECOSOC Resn. 2076
article
On The Protection
Subjected
To
Of All
From Being
Persons
Torture
And Other
Treatment
Cruel,
Inhuman
Or Degrading
(1975);
Punishment,
Code
Or
(XXX)
Of
G. A. Resn. 3542
Conduct
For
Law
Enforcement
G. A. Resn. 34/169
Officials,
(1979);
Principles
To The
Of
Relevant
Medical
Ethics
Of
Health
Role
Personnel,
In
Physicians,
Particularly
Protection
The
Of
Prisoners
Against
And
Detainees
And Other
Torture
Cruel,
Treatment
Inhuman
Or Degrading
Punishment,
Or
(1982).
G. A. Resn. 37/194
These
instruments
international
in Human Rightsare
collected
Of International
(1983),
A Compilation
Instruments,
and
in the
to Rodley,
appendices
above.
2
3
Art.
4(2)
Covenant.
G. C. 7(16),
1. For
Doc. C/21/Add.
and 378 Add. 1.
Doc. A/37/40
p. 94.
the HRC's discussion
see
in
Also
SR 371,373
CH. 9
dignity
individual".
the
of
in
consistently
5(4)
article
reports
the
of
with
the
comment
all
has
articles
96
and
10(1).
dignity
in
Similarly,
by
its
the
8
liberty".
contexts
including
articles
link,
treatment,
destruction
inception
4
5
6
Article
person,
Comment
in
Also
of
the
Ibid.,
in
general
liberty,
to
they
respect
7
person".
general
comment on article
"this
article
supplements
of
with
7 has
article
various
6,8,9,14,23
of
taken
article
10 the
view
Covenant
Comments
torture
and
of
as
of their
in
linked
the
Moreover,
a broad
HRC
7
article
killings
10
treated
inherent
24.9
and
disappearances,
example,
of
be
been
articles
is
deprived
persons
all
the
article
shall
for
the
with
human
HRC has
since
the
and
the
its
scope
of
pr. l.
See prs.
9.11-9.25
below.
(Aguilar
Morroco).
See
SR 327
on
e. g.
pr. 31
9 concerns
the
liberty
the
of
security
and
The HRC has
a General
see Apx. I below.
adopted
9,
Doc. A/37/40
G. C. 8(16),
p. 95.
on article
see
Doc. C/21/Add.
l.
G. C. 7(16),
G. C. 9(16),
1.
Doc. C/21/Add.
9
See e. g.
these
articles
10
its
requirement
that
extra-judicial
family
life.
For
and
for
State
linked
In
their
of
positive
generally
differing
often
ill-
the
treatment
More
of
been
contrary
Covenant
the
that,
regards
deprived
treatment
of
of
HRC under
the
that,
persons
the
of
humanity
featured
consideration
it
supplemented
with
by
adopted
the
has
40
prohibition
10(1)
Article
article
HRC stated
"For
recalled
'views'
5
O. P.
In
the
under
particular
575
See e. g.
n. 3 above,
pr. 2,
pr. 2.
p. 96.
Doc. A/37/40
18
(Opsahl
on
on Guinea).
Also
Morroco).
in
L.n"7
7.
article
its
In
only
persons
in
patients
"the
its
especially
with
in
parallels
is now
that
that
medical
of
all
a broad
40
In
the
course
HRC members
comments
information
and
9,
application
12
This
of
broad
the
El
making
of
in
States,
16
article
1,
also
approach
there
which
be strongly
the
protection
article
under
their
questions,
from
stemming
or
reports
Protocol.
Salvador,
prohibition
matters
State
Optional
a number
G. C. 7(16),
the
from
refrained
against
15
Afghanistan,
11
the
under
torture
Obviously
by
provided
considered
have
not
to
HRC
the
context
3 ECHR under
and is to
to
and
11
paragraph
liberty
- and
the principle
of
of their
considerations
have generally
limited
observations
10
its
article
deprivations
article
jurisprudence,
not
also
pupils
institutions".
article
it
commended
as
adds
considerably
13
by the ICCPR.
offered
9.3
protects
paragraph,
to
substantial
on
to
provision".
taken
but
comment
proximity
support
expressed
and
wording
deals
which
also
its
purpose
imprisoned,
or
educational
its
general
that,
stated
"clearly
7,
article
arrested
in
Similarly
view
576
from
However,
cases
members
charges
specific
for example,
Iran,
17
Chile.
Uruguay,
7 covers
matters
of
14
18
of
pr. 2.
n. 3 above,
12
On
treaty
G. C. 9(16),
pr. 2.
n. 8
above,
interpretation
31,32
VCLT (1969).
see articles
13
See Fawcett,
Van Dijk
and Van Hoof,
pp. 41-53;
C. C. Morrisson,
Law Of The
Developing
The
pp. 192-200;
(1981);
P. J. Duffy,
3 Of
ECHR,
The
European
Article
On Human Rights,
32 ICLQ (1983)
Convention
pp. 316-346.
14
15
16
17
18
pr. 309.
pr. 598.
pr. 160.
prs.
272,278.
pr. 80;
A/39/-40
prs.
463-464.
CH. 9
577
the domestic
sensitivity
at both
political
extreme
levels.
have recognized
international
HRC members
in
framing
by showing
the
restraint
and diplomacy
their
they
general
in
line
establishing
dialogue"
"constructive
In
their
clear
representatives.
of
comments
have
critical,
for
for
appear
in
did
not
20
in
Soviet
or
punitive
seemed
to
this
See ch. 3,
pr. 3.3
to
sentences
assist
matter".
by
provided
limited
such
treatment
meted
of
taken
out
an
most
indication
in
political
observers
severe
if
be appreciated
would
of
that
being
being
were
that
of
to
excessively
made
would
were
reports
convicted
persons
be
could
the
terms
the
of
ensure
some of
It
information
been
to
persons
which
reasons,
those
and
institutions
precautions
what
to
healthy
psychiatric
whether
no question
issues.
Many
formulated
of
violation
Union
....
the
published
a clear
understanding
generally
19
be
the
at
or
evading
over
been
precisely
been
years
comments
The
State
countries.
other
9.4
to
occur
offences
its
reservations
concerns
and
19
has been
However,
there
and
previous
of
making
Soviet
the
difficult
time
He asked
article.
investigated
followed
same
political
to
representatives.
maintaining
while
interned
being
of
condition
example,
had
been
"Reports
this
and
glossing
members
State
to
and comments
have successfully
questions
and
in
the
20
committee
some
in
State
reports
has
of
the
major
above.
the
(Sir
See also
108 pr. 50
Vincent-Evans).
issue
the
during
this
discussion
of
consideration
of
in
the
USSR,
the
summary
report
see
of
periodic
second
The Law
Psychiatry,
See C. Yeo,
Doc. A/40/40
prs. 275-281.
(1975)
14 Rev. ICJ
In The Soviet
Union,
p. 41;
And Dissent
Psychiatric
Involuntary
Soviet
Patients
In
A. Koryagin,
that
26 Rev. ICJ
(1981)
is
It
Hospitals,
reported
p. 49.
in
has
been
the
the
now
matter
officially
recognized
5-6th
USSR. See The Times,
January
1988.
SR
CH. 9
constitutional
in
proscription
"it
legislative
and
is
not
this
punishment
to
or
Penal
provisions
torture
or
make
nevertheless
of
treatment
prohibit
such
it
States
Most
a crime.
or
have
must
are
article
ensure
an
competent
held
responsible,
disposal
compensation".
Accordingly,
the
practical
aspects
questioned
accused
punishments
Prisoners22
and
and
Minimum
and
of
and
the
the
United
obtain
details
and
and
Nations
For
been
with
those
held
and
execution
to
the
Of
in
United
Treatment
The
Code
other
practices
imposition
Rules
on
have
States
correspond
penalties,
Standard
to
persons,
convicted
their
at
provisions
laws
must
victims
more
7.
be
must
guilty
right
article
about
by
effectively
requested
their
whether
detention,
preventative
Nations
ambit
to
as
to
respect
of
the
within
through
remedies
those
of
read
that
Complaints
alleged
have
workings
Covenant,
the
the
HRC members
the
found
including
21
7,
protection
effective
cases
such
article
Those
and
have
of
of
cases
from
control.
investigated
authorities.
themselves
Because
effective
some
machinery
of
ill-treatment
be
must
to
applicable
practices.
it
follows
occur,
with
States
HRC noted
that,
for
implementation
the
which
similar
the
embodying
The
sufficient
article
together
provisions
7.
article
578
Conduct
Of
For
21
2 see
G. C. 7(17),
On article
n. 3 above,
pr. 2.
Case,
EUCT,
U. K.
Cf.
In
the
Ireland
ch. 6 above.
v.
it
25 (1978),
A, vol.
Series
that
the
the
EUCT took
view
institute
the
U. K.
to
not
order
could
criminal
or
disciplinary
Case,
Greek
In the
proceedings,
prs. 62,82.
(1969),
12(2)
YBECHR
the
EUCM
transmitted
remedial
to
the
Committee
Ministers
proposals
of
approved
which
them by Resolution,
see pp. 514-515.
22
See n. 1 above.
Doc. A/4045
of the
pr. 84 (Report
1958).
Committee,
in
Third
Cf.
EUCM
the decision
the
of
Eggs V. Switzerland,
A. 7341/76,6
See also
D. & R. 176.
World
D. L. Skoler,
Implementation
Of The U. N. Standard
(Footnote
Continued)
CH. 9
Law
Officials.
Enforcement
have
raised
detention,
25
detainees,
in
applicable
general
punishments.
9.4.1
discriminatory
the
conditions,
cases
of
its
in
experience
parties
could
considered
specifically
physical
members
political
of
procedures
and
detention,
with
article
kinds
of
make
control
machinery
regards
drew
HRC
the
the
safeguards
26
and the
as
proportionality
comment
of
conditions
treatment
psychiatric
of
general
dealing
More
the
as
the
principle
27
In
State
issues
such
24
23
579
its
on
indicate
to
to
it
which
safeguards
These
effective.
were,
"provisions
granting,
without
such
members
access
to
requiring
that
detainees
that
(Footnote
Minimum
Econ.
procedures
for
the
are
publicly
as
to
prejudice
doctors,
persons
incommunicado,
detention
against
investigation,
the
lawyers,
and
detainees;
the
should
recognized
and
be
held
that
family
provisions
in places
their
names
Continued)
Rules
For
Treatment
(1975)
pp. 453-482;
for
the
effective
treatment
of prisoners.
10 J. Int.
Of Prisoners,
Resn. 1984/47
ECOSOC
the
implementation
of
L. &
on
SMR
23
on
See n. 1 above.
See e. g. SR 65 pr. 3 (Tomuschat
Czechoslovakia);
SR 67 pr. 61 (Tomuschat
on GDR); SR 249
on Venezuela).
pr. 74 (Tomuschat
24
See e. g. SR 346 pr. 7 (Tarnopolsky
on Rwanda).
25
pr. l1
notes
SR 67 pr. 61
See e. g.
(Lallah
Yugoslavia).
on
below.
to pr. 9.24
(Tomuschat
on
Bleir
See
GDR) ; SR 99
Uruguay,
v.
26
(on USSR) ;
to pr. 9.3,
See e. g. text
n. 20 above
SR 264 pr. 23 (VincentSR 136 pr. 5 (Lallah
on Romania);
the ECHR
See the leading
Evans on Barbados).
cases under
33
Netherlands,
A,
Winterwerp
EUCT,
Series
vol.
v.
of
(1981);
46,
(1979);
U.
X.
K.,
EUCT,
Series
A,
v.
vol.
EUCT, Series
(1988);
A. 4340/69,
Nielsen
A,
v. Denmark,
14 YBECHR p. 352.
Simon Herald
v. Austria,
27
;
on France)
SR 562 pr. 5.
CH. 9
places
and
central
detention
of
register
such
as relatives;
other
evidence
treatment
and
kind
the
of
concrete
in
article
the
which
That
the
terms
of
The
input
providing
7.
article
"As
The
scope
of
torture
the
as
draw
necessary
to
various
prohibited
These
punishment.
purpose
treatment".
28
29
and
30
G. C. 7(16),
can
be
has
of
are
29
respect.
scope
form
a wide
refrained
the
of
Amnesty
application
that,
the
this
article,
far
goes
It
may
beyond
not
between
treatment
of
depend
on the
distinctions
by
measured.
as
distinctions
forms
of
many
adopts
international
this
required
sharp
n. 3 above,
practices
organisations
understood.
severity
and
stated
of
practical,
demands
the
for
criteria
protection
normally
from
7 has
HRC
the
comment
general
from
terms
the
appears
useful
gives
in
work
article
clear
such
such
such
that
apply
comment
by
HRC's
However,
application.
or
It
State
each
that
stated
of
to
laws
general
suggests
into
the
instruction
HRC views
suggested
HRC has
defining
of
the
other
in
particularly
national
or
or
inadmissible
and
parties.
of
concerned,
torture
7
organisations
International
9.5
of
of
non-governmental
an
is
confessions
not
how the
of
safeguards
having
training
States
of
aspect
of
comment
performance
this
article
officials
general
of view
indications
point
making
to
in
entered
persons
through
obtained
enforcement
28
treatment".
This
to
provisions
measures
be
should
available
contrary
court;
law
580
the
be
the
or
kind,
particular
pr. 2.
See Amnesty
International
Report,
n. 1 above,
See ch. 3, prs. 3.12-3.18
pp. 247-251.
above on the sources
the reporting
used under
of information
process.
30
1
G. C. 7(16),
2.
and
n. 3 above,
See
pr.
articles
16 of the U. N. Convention
Against
Torture,
n. l above.
CH. 9
9.6
the
Among
the
practices
use
evidential
application
so
stoning
of
"blanket
called
and
of
flogging,
of
which
punishments
have
the
people"
35
whipping,
in
treatment
30-40
of
Ireland,
Northern
36
the
attracted
of
obtained
33
the
immigrants,
and
HRC members
31
the
methods,
32
information,
criticism
interrogation
illegally
of
testing
virginity
forms
particular
and sometimes
attention
have
been
certain
581
the
34
rigorous
years
31
(Tomuschat
See
65
SR
e. g.
pr. 3
Czechoslovakia);
SR 148 prs.
SR 69 pr. 18 (Graefrath),
(Lallah
SR
U. K. ).
U. K.
on
For
the
see
reply
Doc. C/l/Add.
prs. 23-27
Supplementary
Report,
and
prs. 14-17.
on
3-6
148
35
32
SR
148
pr. 3
(Lallah
on
U. K. ) .
Reply
at
SR 148
34
SR 69 pr. 7 (Lallah
v. U. K.,
on U. K. ). Cf. McFeely
A. 8317/78,3
EHRR (1981)
p. 161.
35
SR 365 pr. 10 (Tarnopolsky
on Iran).
36
SR * 403
(Graefrath
Australia).
pr. 19
on
"Whippping
in
been
has
as a punishment
all
abolished
States
but Western
Australia",
Second periodic
report
of
Australia,
Doc. C/42/Add.
(1987),
2
That
prs. 209-210.
report
also
laws
the
raises
traditional
problem
of
by
enforced
involved
aboriginal
communities
which
punishments
which
be regarded
could
and
as
unacceptable
including,
cruel,
"thigh
forms
corporal
spearing,
of
punishment,
initiation
or
offenders
putting
young
'through
the
law',
to
exile
another
or
an outstation
(Footnote
Continued)
CH. 9
37
imprisonment,
of
civil
9.7
and
loss
political
The
confinement
have included
has
to
for
what
their
offences
the
As
regards
the
view
incommunicado,
approach
seems
and
may
to
the
the
governing
solitary
that,
be
contrary
accord
with
solitary
canvassed
with
authorities
for
what
periods,
circumstances,
and
confinement
and
"[e]ven
such
when
to
this
that
of
as
a measure
the
to
according
the
HRC
the
confinement
may,
especially
of
Matters
practices,
in what
conduct,
confinement
circumstances,
practices
these
or
State
probed
punishment.
determination
of
authorized
solitary
extended
corporal
the-
conditions
40
punishment.
has expressed
for
deprivation
39
periods.
and
consistently
on
and
38
nationality,
rights
HRC
representatives
power
of
582
person
article".
the
is
41
EUCM to
kept
This
such
(Footnote
Continued)
ibid.,
'growling'",
'shaming'
community
and public
or
The report
by noting
the view
pr. 205.
of the
continued
be
[w]hat
Australian
Law Reform
Commission
that,
would
be
degrading
in
not
might
one
culture
community
or
in another",
degrading,
indeed
be fully
might
accepted
"while
the
that,
the
and the general
view
of
commission
law did
or sanction
general
not
and should
not condone
'unlawful'
(in
the
courts
punishments,
general
sense)
basis
law
take
the
traditional
of the
should
account
of
in
determining
the
of
a
unlawful
action
existence
instances
intent
in
In
many
criminal
and
sentencing.
ibid.,
this
already
occurs",
pr. 207.
37
SR 142 pr. 6 (Tarnopolsky
on Spain).
38
SR 129 pr. 5 (Bouziri
on Chile).
39
See the
Tomuschat
comments
at
of
(on
Chile).
Such
has,
deprivation
been
held
to
circumstances,
article
violate
Covenant,
J. L. Massera
Uruguay,
see
e. g.,
v.
See also
Fawcett,
pr. 10.2.
p. 124,
p. 49.
128
pr. 22
certian
25 of
the
Doc. A/34/40
SR
in
40
G. C. 7(16),
n. 3
above,
pr.
2.
The
(Footnote
pr.
keeping
Continued)
SR
14
on
of
CH. 9
42
cases.
members
As
regards
HRC have
the
of
corporal
stance,
punishment
both
contravene
often
discrimination-the
the
forms
the
chastisement
measure".
the
at
as
44
The
and
(Footnote
an
article
to
excessive
present
such
his
such
probably
45
time.
the
and
more
was
the
to
Committee
as
on
its
equivocal
and
to
to
only
must
disciplinary
to
corporal
as
an
corporal
to
continued,
excessive
chastisement.
safe
prohibited
prohibition
as
chastisement
only
of
or
is
7 extends
excessive
measures
including
ambiguity
or
any
comment
the
which
without
various
the
may
a minor,
43
In
State".
status
educational
measure,
is
by
ICCPR
have,
punishment,
obvious
to
24(1)
to
punishment
the
in
amounts
it
doubt
the
or
of
disciplinary
which
shall
HRC
corporal
prohibition
se
child
referring
view
to
extend
article
society
the
treatment
of
"[i]n
or
family,
After
ambiguous.
7 and
individual
an anti-corporal
it
that
suggesting
required
comment
general
per
are
his
of
part
taken
right
as
protection
the
punishment
generally
article
"Every
that,
provides
583
assume
whether
the
punishment
educational
punishment
In
view of
the latter
Continued)
incommunicado
in
has,
circumstances,
certain
persons
.
10(1)
the
held
be a violation
been
of
to
article
of
Covenant,
see pr. 9.24 below.
42
U.
K.,
Hilton
47-48.
See Fawcett
See
v.
e.
g.,
pp.
Switzerland,
Bonzi
D. & R.
A. 5613/72,4
v.
p. 177;
D. & R. p. 185 at 189.
A. 7854/77,12
43
(Tarnopolsky
See e. g.
SR 162
on U. K.
pr. 91
Dependencies).
44
G. C. 7(16).
the drafting
n. 3 above,
pr. 2. During
that
this
Mr. Tarnopolsky
general
comment
stated
of
to chastisement
and
measure
references
as an educational
"tended
in
institutions,
pupils
educational
protecting
the
trivialize
to
torture
cruel,
prohibition
or
of
inhuman
SR 371
treatment
or degrading
or punishment",
pr. 16.
45
See the decisions
v. U. K.,
of the EUCT in Tyrer
Continued)
(Footnote
CH. 9
9.8
its
During
consideration
has
and
domestic
provisions
Reference
has
5(4)
the
that
ensure
protection
by
committed
when
official
"official
authority".
to
made
by
of
views
this
is
the
by
the
the
cover
In
under
of
"duty"
practical
terms
of
so-called
7 the
HRC
authorities
to
treatment
even
any
without
explanation
no
"ensure
protection"
to
for
role
active
inspection
or
outside
the
Such
comment
squads",
groups
of
in
State
the
HRC's
"death
and
concerning
Red Cross49
article
such
is
There
countries.
raised
public
against
article
7
prison
acting
and
certain
been
on
7.47
articles
of
the
of
adopted
International
duty
The
activities
in
operate
"an
recent
of
article
comment
law
any,
to
establishing
persons
51
positive
context.
the
general
authority".
suggests
the
of
contravention
corresponding
visits
"it
stated
if
examples,
for
prosecutions
possibility
50
In its
services.
article
provide
been
for
arrangements
and
in
O. P.
concerning
violations
48
Similarly
have
questions
10(1).
in
role
prohibition
HRC
has
that
the violation
notwithstanding
by
in
persons
acting
an
official
46
have
2(3)).
State
representatives
to
requested
investigations
the
reports
fundamental
the
remedy,
effective
been
committed
(article
capacity"
been
State
of
the
emphacized
implementation
of
584
would
which
are
often
(Footnote
Continued)
Cosans
(1978);
Series
26
A,
Campbell
EUCT,
v.
and
vol.
(1982).
EUCT,
Series
48
U. K.,
For
A, vol.
recent
a more
7 EHRR
U. K.,
EUCM decision
X and
X. v.
see A. 9471/81,
(1985)
p. 450.
46
47
48
49
50
51
2(3)
On article
ch. 6 above.
see
SR 469 pr. 38
(Dimitrijevic
SR 356
(Tarnopolsky
pr. 14
on El
on Uruguay).
See e. g.
SR 364 pr. 74
(Vincent-Evans
See e, g,
SR 366 pr.
(Tomuschat
G. C. 7(16),
16
n. 3 above,
Salvador).
pr. 2.
on
on
Iran).
Iran).
CH. 9
linked
allegedly
52
forces.
9.9
The
and
been
the
from
was
when...
death",
there
that
medical
life
consent.
in conflict
of
the
If
so,
with
During
and
medical
if
governing
the
the
could
experimentation
that
it
The
Mexican
concluded
permitting
"only
beings
of
did
the
was
causing
endanger
his
without
not
out
carried
process
removal
Code
which
suggested
55
Covenant.
the
be
possibility
be
person
rather
has
raised
54
human
of
experiments
the
but
could
Health
the
foreseeable
drafting
scientific
it
whether
research
subject
it
was
tissue.
or
security
scientific
commonly
any,
organs
asked
of
clinical
is
no
authorized
consistent
human
of
provision
of
subject
53
A matter
regulations,
transplant
9.10
the
State
of,
medical
and
free
consent
of
the
without
representative
the
on
consideration.
concerned
comprised
not
prohibition
experimentation
has
concerned
limited
if
to,
585
was
provision
that
recognized
were
very
complex
52
in
Baboeram
HRC
the
See e. g.
the
of
view
Report
AI
See
Suriname,
also
ch. 8, pr. 8.23
above.
Reports
of
Killings,
Political
n. 1 above;
ch. 8,
1 and 28.
ibid.,
U. N. Special
Rapporteur,
notes
v.
on
the
53
779
SR
FRG);
(Graefrath
53
See e. g.,
92
SR
on
pr.
is
limited
(Higgins
35
The
Denmark).
consideration
pr.
on
the
was
that
provision
surprising
given
perhaps
1
See
drafting
above.
n.
the
see
stage,
controversial
at
Of
Human
Use
The
Of
Ethics
A.
C.
Ivy,
The
History
And
also
108 Science
(1948)
In Medical
Experiments,
p. 1
Subjects
Et
De L' experimentation
Les
Droits
De L'homme
H. Saba,
A
Polys
Offerts
Sur
L'homme,
Melanges
Biomedicale
(1968);
J. K. Mason
and
Modinos,
pp. 260-266
(2d,
Ethics,
Law And Medical
A. McCall-Smith,
chs. 17-18,
in
1983).
the
texts
See
also
on human
experimentation
(1980)
Internationale
Penal
Revue
De Droit
pp. 419,
at
445 and 459.
54
pr. 60
Canada).
55
404
See e. g SR 77 pr. 27
(Hanga
Finland);
on
SR 386
pr. 36.
pr. 10
(Hanga
SR 170
on Norway);
(Hanga
SR 205
on
pr. 51
(Prado-Vallejo).
For
reply
see
SR
%-n.
raising
matters
provision
was
clearly
much
that
recognized
57
Among the
wider.
to
exceptions
individual
of
the
or
Modern
the
consider.
HRC's
approach
the
and
experimentation.
has been gained
56
57
in
other
58
59
McCall
60
61
to
distinction
62
No
from
raise
issues
Ibid.
There
international
real
for
See n. 1 above
is
health
of
the
the
problem
the
person,
without
practices,
products,
61
experimentation,
for
issues
the
to
58
HRC's
the
be
on
to
practice
drafting
and
to
the
consent"
treatment
assistance
on
60
HRC
will
note
"free
of
between
the
were
pharmaceutical
interpretation
and
discussed
and
embryo
well
fundamental
went
experimentation.
59
research
psychosurgery,
as
and
was
formulated
medical
or
it
mind
unconscious
treatment
might
The
as
issues
Nazi
the
experimentation
concerning
fetal
virus,
aids
fluoridation
or
scientific
such
in
II
the
Though
of
the
where
involved,
were
criminal
research
children,
provision
sick
between
practices
War
particular
the
outlaw
legitimate
distinction
the
community
of
56
atrocities
World
principle
the
consent
to
need
hindering
the
this
>zi 0
questions.
the
with
during
camps
concentration
difficult
many
drafted
>
these
and
issues
date.
records.
express
no comparable
texts.
human rights
provision
Ibid.
SR 92 pr. 53 (Graefrath
on
Smith
n. 53 above,
pp. 293-296.
See e. g.,
SR 441 pr. 37
FRG).
(Graefrath
See
Mason
and
on France).
Smith,
Mason
McCall
above,
n. 53
and
A
Human
Embryology:
Fertilisation
And
chs. 16-17;
(1987);
For
Legislation,
The Third
Cmd. 259
Framework
Licensing
For Human In
Authority
Report
of The Voluntary
(1988);
And Embryology
Fertilisation
Vitro
B. M. Knoppers,
33
Birth
Technology
Modern
And
Rights,
Human
Am. J. Comp. L. (1985)
pp. 1-31.
62
9
See 4+Iason and McCall
Smith,
53
chs.
above,
n.
and 16.
See
CH. 9
its
In
the
paucity
of
sentence
on
comment
general
if
information
7
article
587
7
article
received
commented
and
HRC noted
the
the
on
it
took
second
the
view
that,
in
"at
least
are
highly
areas
developed,
more
experiments,
possible
need
provision.
such
experiments
63
not
G. C. 7(16),
borders
and
attention
means
Special
this
persons
and
their
outside
is
capable
science
where
countries
of
n. 3 above,
to
and
medicine
for
and
peoples
even
by their
if
affected
be given
to the
should
ensure
the
protection
in
necessary
giving
pr. 3.
their
of
observance
in
regard
to
the
of
case
6
consent"
,3
CH. 9
7 And
Articles
9.11
10 Under
7
Articles
final
10(1)
and
the
HRC's
that
both
articles
for
the
fact
that
of
detainees
treatment
In
views.
had
Optional
featured
many
of
been
article
final
No
and
medical
has
view
scientific
important
HRC's
in
with
All
subject
of
the
first
the
on
and
HRC's
matter
10(1).
of
63
article
Many
and
These
on
to
consent
the
of
procedural
in
developed
been
by
views
of
evidential
have
O. P.
the
covered
sentence
the
accounted
concerned
experimentation.
articles
concerning
is
with
decisions
under
matters
dealt
is
have
found
HRC
the
This
views
in
prominently
these
violated.
these
64
Protocol.
have
which
62
7 and
10(1)
articles
.
7 have
the
concerned
both
7.
The
588
cases
dealt
been
have
4 above.
chapter
its
work
has
majority
great
Uruguay.
The
confined
and
and
been
of
factual
consistent
mistreatment
scope
for
7 and
10(1)
64
the
reduced
and
HRC to
has
been
the
by
HRC's
allegations
focusing
number
have
relatively
of
methods
A much
The
concerned
been
of detention.
conditions
develop
the borderline
restricted.
factors.
have
views
on
of
torture
Thus
of
wider
the
articles
range
of
7 and 10 of
both
This
section
covers
articles
in terms
because,
the Covenant
of the HRC,
of the views
7 in isolation.
it was not sensible
to consider
article
62
its
in
We have
that
noted
comments
on
general
7 and
10
the
to
the
HRC made
reference
articles
between
the two articles,
relationship
see pr. 9.2 above.
63
"he was
In Acosta
A alleged
that,
v. Uruguay,
to psychiatric
(giving
the name of
experiments
subjected
for
three
his
the doctor)
and that
years,
will,
against
tranquilizers
he was injected
with
two
weeks",
every
these
Doc. A/39/40
The
HRC noted
that
p. 169
pr. 2.7.
into
before
concerned
a period
the
allegations
entry
ibid.,
force
O. P. for
of the Covenant
Uruguay,
and the
pr. 14.
CH. 9
issues
have
been
within
its
limited
rather
sparse,
by
authorities
to
to
manner
argument.
Often
recitation
the
inter
Covenant.
Accordingly,
particular
facilitating
of
the
of
examples
the
of
in these
was
In
that
articles
64
HRC's
10(1)
of
the
of
are
views
in
terms
the
of
cases
of
of
generally,
development
it
was
the
are
HRC's
prisoners
political
inter
because
detrimental
alia,
A
was
to
in
a cell
seriously
the
violations
detained
his
place,
unidentified
an
in
conditions
meters
health.
The HRC expressed
10(1)
that
alleged
2.5
seriously
conditions
66
in
revealed,
and
of
the
HRC's
nature
Uruguay
other
his
facts
the
counter
regards.
by
to
abstract,
findings
of
following
The
unsatisfactory
four
4.2
measuring
detrimental
more
also,
HRC's
the
understanding
an
comprehensible
v.
incommunicado
with
confined
and
Ambrosini
held
to
specific
and
the
of
Covenant.
meaning
9.12.1
many
with
consisted
7 and
articles
regard
simply
basis
the
the
that
allegations
form
partly
Uruguayan
a rather
of detailed
have
views
alia,
with
decision
in
benefit
the
facts
is
Even
been
example,
or
result
factual
the
of,
evidence
The
the
of
for
HRC,
developing
HRC's
violations
approach
65
been
those
unsatisfactory
of
without
of
that
stating
production
has
the
with
is
This
failure
64
have
analyses
unhelpful.
consistent
allegation.
3 ECHR.
article
HRC's
and
cooperate
academic
the
scope
the
the
of
rebuttal
jurisprudence
under
cautious
explicable
respect
considered
589
view
of
under
67
health.
See n. 13 above.
65
For
the
HRC's
to
these
approach
see
problems
have shown
A number of States
ch. 4, prs. 4.27-4.36
above.
little
to the HRC, see ch. 4, prs. 4.42-4.43,
cooperation
4.127-4.132
above.
66
67
Doc. A/34/40
Ibid.,
p. 124.
pr. 10 at
(i).
CH. 9
10(1)
Article
was
incommunicado
by
visited
"cruel
for
by
not
it
as
mentioned
on
comment
9.12.2
In
Antonaccio
because
10(1)
in
months
over
of
medical
further
been
his
uncertain
10(1)
article
68
69
or
72
73
the
months
the
were
members
its
in
general
to
referred
the
7
article
for
confinement
was subjected
being
was
and
72
required.
views
to
as
HRC expressed
of
HRC's
of
and
three
torture
denied
the
is
There
it
so
a period
no
is
of
7
its
Ibid.
See also
Simones
not
in
appear
of and circumstances
have violated
article
alone
would
73
in
that
both.
We noted
above
70
and
cell,
such
confinement
solitary
HRC
the
the
combination
family
solitary
of
whether
by
by
be visited
to
expressly
not
was
condition
explanation
"right"
the
violations
in
three
treatment
HRC also
Uruguay71
an underground
a period
The
by
but
held
was
dignity".
by
v.
had
there
humanity
Visits
7
article
that
view
with
implied
70
right.
covered
does
safeguard
as
assistance
be
7 might
"treated
be,
be
may
but
amounted
"degrading
or
little
the
torture
conditions
be
to
right
to
treatment"
of
It
69
articles.
other
to
source
member.
but
ICCPR
the
article
held
was
Presumably
amount
the
inherent
the
family
any
of
their
explain
not
the
was
provides
detainees
for
respect
does
or
limbs
these
requirement
and
10(1)
Article
of
denied
68
member.
and
whether
"inhuman
treatment",
treatment".
each
months
indication
no
because
violated
family
any
detention
did
of
conditions
is
there
to
for
also
590
Doc. A/37/40
Ibid.,
v.
pr. 9.23
above,
and Quinteros
in pr. 9.23 below.
p. 114.
pr. 12.
Uruguay,
below.
below.
v.
Uruguay
CH. 9
solitary
article
on
comment
general
591
the
"may,
confinement,
HRC
that
stated
the
to
according
is
kept
and especially
when the
person
74
is
be, contrary
It
to
this
article".
that
the HRC does not
comment on or explain
unfortunate
in this
the
case
circumstances
of solitary
confinement
circumstances,
incommunicado,
and
thereby
a useful
75
comment.
general
to
regard
scope of its
Similar
criticism
can be made with
76
to A.
treatment
of medical
afford
the
denial
example
the
of
in Lanza
is
finding
that
and
unhelpful
77
Perdoma v. Uruguay.
L and P made detailed
allegations
ill-treatment
(L)
torture
and mental
of
and physical
facts
(P).
that
the
The HRC simply
the
view
expressed
9.12.3
Another
disclosed
violations
"treatment
the
78
detention".
No
is
comment
distinct
are
on
while
74
75
solitary
detention
Uruquav80
A number
of
confinement,
cases
see
below
See pr. 9.17
Kotalla
v. Netherlands,
77
78
79
80
Doc. A/35/40
Ibid.,
See the
all.
at
it
from
of
and
An example
was alleged
inadequate
an
that
diet
p. 111.
Estrella
p. 124.
Case,
pr. 9.18
concerned
pr. 9.18
D. & R.
pr. 16.
Doc. A/34/40
facts
above.
76
Cf.
where
more
finding
allegations
M suffered
no
and
mental
inexplicable
of
allegations
79
Even
torture.
No
specific.
more
the
the
on
to
of
in
while
received
made
HRC makes
the
no view
expresses
is M. V. Massera
v.
in
is
attempt
physical
where
they
because
10(1)
7 and
articles
which
made
from
cases
of
below.
below.
p. 238.
CH. 9
and
health
To
turn
have
been
to
the
that
down
fallen
immediately
was
left
M had
been
for
M had
the
that
view
that
7 and
10(1)
because
result
of
as
81
hours,
of
leg.
with
he
his
the
suffered
with
was
not
the
leg
other
one.
maltreatment
and
expressed
of
articles
M was
tortured
violations
detention
was
balance,
that
the
injury,
disclosed
during
which
than
of
result
permanent
facts
result
shorter
as
his
injury
The
the
it
standing
lost
had
first
HRC's
Uruguay83
remain
HRC
the
constituting
the
v.
to
his
suffered
the
in
there
which
as
was
forced
centimetres
found
of
state
views,
in
views
J. L. Massera
many
care
several
received
these
broken
and
taken
HRC
The
In
of
allegations
of
views.
hooded
head
his
first
of
expression
number
HRC's
the
of
categorized
specifically
82
The
torture.
alleged
substance
a substantial
has
her
that
so
81
weakened.
was
9.13
conditions
working
unhealthy
592
permanent
physical
that
the view
Ibid.,
express
pr. 2. The HRC did
10(1)
but
had been violated
grounds.
on other
article
148,
A/39/40
in
Doc.
Uruguay,
p.
Similarly,
Machado
v.
In
ill-treatment.
1.7,
of
concerning
allegations
pr.
(1978),
EUCM,
the
5301/71,
U.
K.,
Report
Ireland
A.
of
v.
if
diet,
that
considered
the EUCM stated
on
restrictions
inhuman
constitute
may
as
such
separately,
not
treatment,
p. 401.
82
124;
A34/40
Doc.
p.
See J. L. Massera
Uruguay,
v.
Motta
Doc. A/35/40
Grille
p. 132; Lopez Burgos
v. Uruguay,
Uruguay,
176;
Antonaccio
Uruguay,
Doc.
v.
A/36/40
p.
v.
130;
A/37/40
Doc.
114;
Uruguay,
p.
Bleir
Doc. A/37/40
v.
p.
E. Quinteros
v.
Doc. A/38/40
Uruguay,
Estrella
p. 150;
v.
Doc. A/39/40
Zaire,
A/38/40
Muteba
Uruguay,
v.
p. 216;
128.
See
182;
Gilboa
A/41/40
Uruguay,
Doc.
also
p.
v.
p.
below,
Uruguay,
Conteris
v.
and Baboeram
v.
pr. 9.14.1
its
in
light
in
8.23
the
of
Suriname,
pr.
which
above,
6(1)
had been violated
article
of the Covenant
view that
it
did
it
to consider
assertions
necessary
not consider
(including
Covenant
the
that
provisions
other
of
7 and 10) were violated.
articles
83
Doc. A/34/40
See Rodley,
p. 80.
p. 124.
n. 1 above,
J. L. Massera,
Uruguayan
a distinguished
mathematician,
been released.
has since
CH. 9
84
damage.
is
There
was that
long
for
mistreatment
standing
torture
constituted
much lower
Ireland
the
were
EUCT held
to
the
of
word
have been
injury
physical
it
torture.
rendered
being
held
not
foreseeability
inevitably
Other
84
85
Ibid.,
of
torture
by
pr. 9 (ii)
it
that
that
two
was
basis
injury
not
"did
not
and
Alternatively,
the
fact
M's
treatment
a State
party
from
resulting
if
the
sting
case
five
a practice
extent
questions
for
omissions
approach
was
the
of
specifically
from
Intere.
this
In
86
even
if
raised
the
intensity
torture".
liability
and
be
findings
an individual
intended.
of
mistreatment
injury
was
any
alone
techniques,
On that
for
responsible
but
the
remain
set at a
EUCT in the
constitute
resulted
permanent
that
by
85
particular
the
to
been
only
treatment
because
torture
may
has
indicated
M's
of
treatment
threshold
"hooding"
degrading
view
this
the
of
forced
and
Case.
and
suffering
implied
by
HRC's
the
explanation
evidence
Kingdom
the
of
If
that
which
a practice
cruelty
hooded
hours.
and
inhuman
occasion
he was
than
"wall-standing"
of
factual
United
v.
or
only
then
level
techniques
definition
no
The
torture.
term
593
HRC would
that
is
the
of
of
would
87
pursued.
reject
the
See n. 21 above.
86
EUCT's
Ibid.,
For the
of
understanding
pr. 173.
from
dissents
torture
see ibid.,
pr. 167. There were four
that
The EUCM had held
the EUCT's judgement.
unanimously
five
the
techniques
the
a
use of
constitutes
combined
inhuman
Report
treatment
of the
of
and torture,
practice
The EUCT's
EUCM, n. 81 above,
of
p. 401.
understanding
been
has
Fawcett,
torture
p. 46;
criticized,
see
Klayman. l above,
pp. 497-500,504-505.
87
in article
The definition
torture
of
Against
Torture,
U. N. Convention
n. 1 below,
infliction
"intentional"
"act"
the
of
any
or suffering,
pain
whether
severe
or
physical
1 of the
to
refers
by
which
mental.
CH. 9
possible
is
damage"
9.14
allegations
HRC
the
which
included
practices
has
any
of
which
conception
of
use
shocks,
head
into
into
detainee's
hooded
for
made
foul
being
anus,
handcuffed
and
days
the
insertion
water),
with
a piece
89
of
detainee's
bottles
of
forced
have
torture
of
have come
application
(putting
in
communications
clearly
torture:
physical
88
torture.
of
finding
a
would
submarino
"permanent
of
a finding
in
the
to
a precondition
factual
The
a finding
that
argument
594
to
electric
hooded
or
remain
of
barrels
standing,
in
wood
within
the
mouth
beatings90
nights;
physical
or
in permanent
damage91
treatment
results
which
physical
92
jawbone
being
and perforated
a broken
or
eardrums,
'planton'
(standing
forced
to do the
upright
with
eyes
several
blindfolded
93
over;
throughout
or
of
in
of
to
day),
with
water,
torture
dispatch
having
the
beatings
asphyxiation
threats
and
rubber
buried
to
violence
Argentina
the
witness
to
be
torture
and
truncheons,
friends
or
executed,
of
walked
near
including
torture
psychological
or
to
being
relatives,
threats
friends,
of
mock
88
in
In many
the
there
of
cases
cited
n. 82 above
injury.
submitted
of
permanent
physical
no
evidence
was
in
his
Case,
the
Ireland
U. K.
In
opinion
separate
v.
injuries
Judge
Zekia
that
the
argued
whether
n. 21 above,
in
duration
the
transitory
or
permanent
was one of
were
factors
into
in determining
to be taken
account
relevant
Many
the
torture.
concerned
conduct
constituted
whether
leave
techniques
torture
of
no
permanent
signs
modern
International
Danish
Group,
Medical
injury,
see Amnesty
(1977).
Of Torture
Evidence
89
90
91
92
93
Grille
Lopez
Motta
v.
Uruguay,
Doc. A/35/40
p. 132.
Burgos
v.
Uruguay,
Doc. A/36/40
p. 176.
See J. L. Massera
Lopez
Burgos
v.
v.
Uruguay,
Uruguay,
pr. 9.13
Doc. A/36/40
above.
p. 176.
Doc. A/37/40
Bleir
v. Uruguay,
v.
p. 130; Estrella
Doc. A/38/40
E. Quinteros
Uruguay,
p. 150;
Uruguay.
v.
p. 216.
Doc. A/38/40
CH. 9
94
amputations;
95
executions.
has
Despite
failed
to
In
state
Lanza
In
torture.
blindfolded
of
the
were
allegations
hands
tied,
of.
and
was
such
because
In
of
the
Weinberger
torture,
kept
leaving
injuries
(one
HRC
of
received
Uruguay100
blindfolded
the
with
detainee
the
arm
to
violations
"treatment"
v.
being
constantly
"caballete",
98
The
as
been
term
subjected
"planton".
had
there
the
using
and
or
severity,
almost
tied
and
treatment
physical
serious
hands
that
torture.
from
HRC
mental
96
comparable
refrained
"picano",
10(1)
99
detention.
during
to
amount
mock
the
opportunities
seemingly
her
and
that
Uruguay97
view
7 and
articles
of
mistreatment
seco",
expressed
of
with
forms
"submarino
can
v.
shocks
explicitly
have
HRC
the
various
a number
cases
other
however,
kept
electric
suffering
psychological
9.14.1
beatings,
595
with
leg
paralyzed,
94
ibid.
Estrella
Uruguay,
The EUCT has held
v.
is sufficiently
it
"provided
that,
real
a
and immediate,
threat
by article
3 (ECHR]
of conduct
prohibited
mere
in
be
itself
it",
conflict
with
may
and
see Campbell
A, vol. 48, pr. 26 (1982).
Cosans v. U. K, EUCT, Series
95
Ibid.,
pr. 9.
99
Ibid.,
pr.
121.
p.
A/35/40
Doc.
100
p. 111.
Doc. A/35/40
Doc. A/36/40
16.
See Rodley,
Similarly
p. 114.
n. 1 above,
in
Ramirez
p. 87-88.
V.
Uruguay,
CH. 9
injuries
infected
and
"severe
been
the
(3)(g)
"forced
by
is
torture
has
evidence
'treatment
In
delineate
or
designated
107
not.
Uruguay108
The
to
the
thereby
torture
101
102
103
104
105
pr.
7
only
and
of
that
have
severity
Acosta
evidence
v.
torture
to
the
view
A had
been
had
Uruguay
that
or
"inhuman
and
similar
in
that
10(1).
the
define
expressed
and
on
and
to
evidenced
the
views
of
others
it
to
This
identified
view
is
by
the
pr. 16.
p. 179.
pr. 9.
Doc. A/40/40
Grille
Why
allegations
nevertheless,
articles
Doc. A/37/40
Ibid.,
guilt".
its
certain
treatment
the
C had
p. 196,
pr.
10.
Motta
v.
Uruguay,
Doc. A/35/40
p. 132,
Burgos
v.
Uruguay,
Doc. A/36/40
p. 176,
16.
106
pr.
inhuman
because
HRC sought
"torture"
between
before
since
Ibid.,
basing
is
remarkable
view
HRC found
the
allegations
but,
that
the
while
v.
finding
treatment"105
106
suffered'.
why
103
refer
expressly
in
other
cases
violated
extraordinary
has
explain
information
to
subjected
also
102
Conteris
confess
Finally,
boundaries
be unsubstantiated
that
not
torture)
then
case
to
expressions
and inhuman
combined
"torture
of
the
treatment"
have
does
explained.
not
no
termed
torture
expression
Uruguay
V.
"ill-treatment".
again
of
(including
9.14.2
been
means
finding
article
HRC
was
This
14
article
the
in
used
by
was
accompanied
a
ICCPR had been violated
treatment"
Uruguay104
HRC used
Izquierdo
were
allegations
similar
"Severe
The
eyes).
101
In
treatment".
596
Lopez
13.
107
above.
See G. C. 7(16),
n. 3 above,
See also
n. 36 above.
108
Doc. A/39/40
p. 169.
pr. 2,
cited
in
pr. 9.5
CH"9
9.15
a
"degrading
term
The
of
number
small
that
alleged
thirty-five
were
wrists
grew
being
once
being
forced
to
causing
kept
bandaged.
to
of
take
treatment"
how
the
to
may
cases
remain
which
ill-treatment
110
111
112
or
Ibid.,
Ibid.,
on
view
that
and
10(1)
No
days
many
her
eyes
were
and
only
days.
had
there
the
be
distinguished
of
There
"degrading
term
cases
been
basis
111
the
of
the
that
fifteen
or
on
for
a mattress,
treatment".
to
particular
on
stand
detention
of
ten
every
that
unexplained.
from
concerning
designated
only
treatment"
is
between
distinctions
details
evidential
explanation
or
It
treatment".
as
of
"moral"
offered.
prs.
pr.
for
"degrading
not
turn
Doc. A/36/40
move
why
other
have been
speculate
was
sitting
"severe
but
possible
109
was
allegations
"ill-treatment"
only
it
treatment",
"inhuman
kept
explanation
treatment112
factual
conditions
degrading
and
or
or
inhuman
articles
The
bath
the
discussion
similar
"inhuman
of
to
allowed
her
that
and
physical
interruptions,
pain
B allegedly
expressed
evidence
no
including
not
violations
was
and
with
HRC
The
"moral
minor
in
Uruguay110
v.
to
bound
allowed
Bouton
De
various
appeared
subjected
with
blindfolded,
only
was
hours
continuously
worse
In
for
has
treatment"
cases.
she
ill-treatment"
incommunicado
held
being
A's
was
109
periods.
HRC
597
13.2-15.
p. 143.
13.
finding
of
Ireland
the
v. U. K.,
n. 21 above,
five
the
techniques
that
the
use
EUCT was
of
the
"inhuman
degrading
of
practice
a
and
constituted
3).
finding
there
(finding
Another
was that
treatment"
"inhuman
Barracks
Palace
a
practice
of
at
existed
6).
(finding
1
See
Sieghart,
above,
n.
treatment"
pp. 167-170.
In
CH. 9
9.15.1
Similar
in
view
other
expression
the
view
cruel
and
HRC expressed
"torture
to
and
facts
of
'electric
statement
(beatings,
been
degrading
treatment".
forms
continuous
of
having
always
of
acts
or
the
to
does
expression
not
G had
"cruel
and
"various
violence,
appear
its
torture
which
of
included,
"harsh"
to
In
such
as
and
guards
further
of
Conteris
v.
of
7
conditions
in articles
10M.
9.16
The
HRC
has
basic
thrust
failed
to
the
with
accords
comment
may
between
Similarly
113
define
on
not
the
be
the
7 in
it
prohibited
These
distinctions
can
Doc. A/41/40
it
the
of
its
stated
draw
to
various
be
is
above
the
that
for
criteria
establish
in
7.
This
terms
article
its
the
HRC in
general
of
which
necessary
severity
and
argument
or
approach
article
punishment.
purpose
the
of
between
distinguishing
"It
explanation
HRC referred
This
up)
to
subjected
to
refers
stringing
no
Uruguay113
v.
the
remain
naked
with
and insults
and promises
114
in one view,
Finally
to
the
detention.
HRC
the
of
treatment".
allegations
degradation
and
cruelty".
Uruguay115
degrading
use
been
G had
only
treatment
only
Gilboa
The
threats
torturers,
HRC's
In
the
the
regarding
degrading
the
that
prod',
is
There
subjected.
made
expression
contains
also
which
"cruel
treatment".
appears,
the
the
which
be
can
comments
598
of
depend
argued
treatment
on
the
treatment".
particular
the
that,
distinctions
sharp
forms
that
view
criticism
and
kind,
116
is
p. 128.
114
45
K.,
4.3.
U.
Cf.
In
Tyrer
n.
Ibid.,
pr.
v.
be
to
for
that
EUCT
the
stated
a punishment
above,
be more
debasement
humiliation
the
or
must
degrading
in
the case of generally
accepted
that
exists
which
than
imposed
by
for
criminal
courts
forms
punishment
of
186.
Case,
21
Greek
the
See
p.
n.
also
above,
offences.
115
Doc. A/40/40
p. 196.
116
G. C. 7(16)
pr. 2.
See pr.
9.5
above,
text
to
n. 30.
CH"9
because
academic
is totally
and
ICCPR
likely
117
are
time.
over
by
and
10(1)
and
severity
Nonetheless,
the
of
cases.
various
limbs
In
and
contribution
from
the
terms
of
reputation,
be
reparation
to
It
may then
be very
their
from
findings
to
of
moral
States
the
force.
afforded,
important
in
failed
view
of
draw
between
the
from
the
States
like
the
of
article
a body
of
HRC should
Unfortunately,
a clear
respective
the
understanding
findings
7.
as
content
in
crucial
the
as
value.
to
level
118
avoid
distinct
Conversely,
human
international
weight
carry
great
HRC has not afforded
of
The
prohibitions.
of
torture
the
parties,
and propaganda
for
a State
party
as
to
apart
developing
categorized
from
parties
categorization
of
O. P.
purpose
individual,
the
violation
torture
experts
rights
and
actions
lesser
Even
to
the
"kind,
the
HRC have
7.
point
be
also
articles
prohibitions
are
international
standing,
of
having
to
distinctions
make
between
must
content
of
the
article
7{
article
under
treatment"
response
would
ICCPR
give
comprehensible
distinctions
the
to
analysis
that
It
communications
particular
of
of
the
of
experience
under
boundaries
7
of
article
and fluid
and may change
complex
permitting
concrete
intelligible
the
be
to
element
prohibited.
HRC opportunity
the
afford
any
basis
on the
3 ECHR the
article
parallel
of
unequivocally
that
recognized
of
violation
599
"torture",
the
scope
of
resulting
or
as
117
'Movement
in article
3 [ECHR]
and development
likely
is
will
grow more intense
and more
and
obvious
is
basic
human right
However
this
frequent.
may seem, it
indeed",
Clovis.
C.
Dynamics
Morrisson,
The
complex
most
In The European
Human Rights
Convention
Of Development
System,
p. 72 (1981).
118
importance
for
EUCT's
the
Hence
the
U. K. of the
it
'tortured'
that
had
decision,
above,
n. 21
not
for
IIOn compensation
torture
detainees.
see Filartiga
7 HRQ
(1985)
Opinion,
Anon.,
Damages
The
pp. 245-253;
And
Compensation
35
Prosecution
In
Colombia,
Torture:
(1985)
pp. 5-6.
Rev. ICJ
CH. 9
"ill",
"inhuman",
have
of
an element
inevitably
must
HRC's
In
is
the
lower
that
is
treatment
attached
the
and
potency
incommunicado
the
ICCPR
an
and
will
effective
much
gives
of
an
used
in
the
terms
the
formulation
the
early
be
least
years
of
of
combination
facts
of
from
distinct
noted
in
119
120
findings
of
in
the
findings?
serious
any
See Meron,
See
Ackerman,
fact
Or
What
to
is
n. 1
its
HRC
of
that
task
in
must
at
a much
finds
more
the
and
For
example,
the
constitutes
it
particular
torture
as
treatment?
As
constitute
form
are
of
not
particular
renders
been
has
there
criticisms
n. 1 above,
the
what
reveal.
prohibited
4 these
chapter
O. P.
accepted
it
that
view
enough
other
if
facts
of
7?
121
in
HRC articulate
they
article
if
understanding
body,
view
prison
parties
difficult
rights
solitary
protection
the
Even
the
HRC could
States
to
by
conduct
rights
its
is
the
its
number
violation
set
that
in
element
essential
Covenant.
between
and
under
of
human
because
individuals
views
between
which
a
is
link
of
which
of
demanded
violations
a guide
definitions
of
intelligible
as
indication
more
the
human
to
its
and
to
the
on which
include
of
recourse
comments
general
develop
only
respect
and
detention
instrument
living
of
drawn
120
conditions.
As
be
must
treatment
permissible
and impermissible
119
Common State
States.
practices
have
more
provided
guidance
confinement,
absence
with
line
the
of
7 prohibitions
article
difficult
the
where
the
of
the
important
particularly
to
appears
it
to
which
standing
terms
practical
reaches
thus
arbitrariness
reduce
views.
definition
"severe"
or
600
confined
to
p. 114.
above,
pp. 682-683
on
U. S.
law.
121
been
with
"The
especially
violations
language
of
inconsistent
of article
the
has
Human Rights
Committee
in
its
dealing
many cases
7",
Rodley,
p. 87.
n. 1 above,
CH. 9
views
7.
article
concerning
601
form
The
and
substance
of
it
is difficult
views
to
are such that
if
the HRC has decided
what,
anything,
state
exactly
and
122
is often
interpretation
to speculation.
reduced
9.17
the HRC has expressed
In a line
the view
of cases
7 and
that
of detention
can violate
articles
conditions
123
in
10(1).
The alleged
conditions
particular
cases
for
have included
three
solitary
confinement
months
and
124
incommunicado
detention
denial
treatment;
of medical
(lm by 2m) in solitary
in a small
for
cell
confinement
125
for
solitary
confinement
several
months;
eighteen
126
in
light;
almost
a cell
without
natural
months
many
HRC's
the
of
in
on
the
detention
uncovered
127
per
10cm.
of
in
on
no
only
bed
spring
122
on
See ch. 4,
floor
with
pr. 4.38
above.
the
two
sleeping
of
clothing,
coups
cells
with
indoors
kept
being
insufficient
sanitary
conditions,
12 8
food,
of incommunicado
periods
a
change
overcrowded
floor,
the
doors,
open
with
having
bound,
detention
water
with
floor,
hands
blindfolded,
day;
garage
hard
detention,
minimal
of
soup
5cm.
all
labour,
chained
clothing,
to
day,
poor
to
and
123
Doc. A/34/40
Ambrosini
Uruguay,
See
v.
e. g.
125;
Uruguay,
Doc.
Carballal
A/36/40
124;
p.
V.
p.
Doc. A/37/40
Uruguay,
Marais
v.
Massiotti
V.
p. 187;
Uruguay,
Antonaccio
Doc. A/38/40
p. 141;
v.
Madagascar,
below.
See also
Cf. Estrella,
pr. 9.18
p. 114.
Doc. A/37/40
n. 21 above,
p. 489.
the Greek Case,
124
125
126
127
128
also
Antonaccio
Marais
v.
Madagascar,
De Voituret
Carballal
Massiotti
Muteba
v. Zaire,
Uruguay,
v.
v.
v.
Uruguay,
Uruguay,
Uruguay,
v.
Doc. A/38/40
Ibid.
Doc. A/38/40
Doc. A/39/40
Doc. A/36/40
Doc. A/37/40
p. 182.
P. M.
p. 164.
p. 125.
p. 187.
See
CH. 9
severe
inhuman
9.18
conditions.
Estrella
In
"inhuman
no
the
conditions
a concert
and
arms
denied
in
to
a cell
subjected
to
detailed
Libertad.
The
129
130
to
respect
in one
case
they
another
131
respects
The
bears
and
also
to
HRC expressed
v.
spent
the
1980.
seven
and
At
severe
prison
view
that
the
E was
subjected
Madagascar,
Doc. A/38/40
to
ten
E was
arbitrary
harassment.
His
had
torture
a
at
conditions
Doc. A/40/40
or
E provided
Uruguay
to
he
confinement
censorship.
of
first
without
to
and
He remained
solitary
months
on
1978
Libertad
and
subjected
description
132
Wight
January
a cage.
days
thirty
was
subjected
In
of
other
and
threatened
He
to
subjected
particularly
death
with
ill-treatment
further
He
and
effects
February
until
kidnapped
allegedly
torture
a kind
was
which
7 because
article
other
prison.
including
punishments
in
cell
a punishment
was
10(1)
explained.
attention.
Libertad
there
not
in
He was
medical
imprisoned
recreation.
is
the
article
7 with
article
pianist,
was
individuals
armed
hands.
and
taken
that
HRC found
violated
psychological
had lasting
which
necessary
days
and
strongly
physical
ill-treatment
the
as
consideration.
Estrella,
fifteen
these
Why conditions
10(1)
in
when
10(1)
article
is important
case
detailed
more
was
only
Estrella
his
made
detention.
articles
violate
to
was
of
HRC described
detention"
of
reference
violate
The
Uruguay130
v.
conditions
but
by
food.
of
129
rationing
602
violated
during
his
p. 171.
p. 150.
131
A possible
have been that
rationalization
could
individual
7
concern
would
article
cases
while
article
However,
concern
situations
10(1)
or
would
practices.
do
not accord
HRC's
views
with
such an explanation.
the
132 E
was
expelled
from
Uruguay
in
February
1980.
CH. 9
first
days
few
"torture"
only
"physical
133
detention.
of
its
but
"On the
by
the
(see
author
the
conditions
inhuman.
In
this
of
consideration
its
instance
practice
9.18.1
The
Libertad
other
views
HRC repeated
in
Nieto
this
to
Committee
R. 16/66
view
the
Libertad".
concerning
held
to
7 in
potent
finding.
The
ICCPR.
133
134
pr.
9.23
this
concept
has,
It
respect
absence
which
p. 150,
pr. 8.3.
pr.
See
135
specific
both
In
were
10(1).
have
would
Again
a reference
of
been
it
that
conditions
article
does
of
a practice
figured
however,
in
Doc. A/38/40
Ibid.,
below.
prison
of
the
of
no explanation
article
inhuman
a practice
Uruguay136
a violation
constitute
is
there
the
of
135
and
Nieto
its
existence
Estrella
come
were
at
accounts
had
Miguel
recalls
(see for
adopted
at
conclude
which
communications
on
v.
the
submitted
1.10 to 1.16
and stated
"on
basis
this
the
conclusion,
of
137
former
detainees
by
themselves".
at
to
Libertad
at
the
session)
which
confirm
treatment
of inhuman
seventh
to
subjected
connection
its
views
respect
imprisonment
was
to
HRC's
particular
paras.
is
in a position
of
Estrella
Angel
with
refers
refers
information
detailed
in
view
Libertad,
at
Committee
the
above)
that
statement
conditions
basis
of the
prison
HRC's
facts
of
134
The
torture".
psychological
important
a very
alleged
The
statement
and
contained
603
to
a more
in
not
the
the
appear
jurisprudence
10.
also
the
Quinteros
Case,
(my emphasis).
The communication
Ibid.,
pr. 9.1
117
is
Schweizer
Uruguay,
Doc.
A/38/40
to
v
p.
referred
.
10(1)
the
that
the HRC expressed
in which
view
article
because
S had
been
detained
been
under
had
violated
inhuman
conditions.
prison
136
137
Doc. A/38140
Ibid.,
p. 201.
pr. 10.4.
CH. 9
ECHR.
the
under
Uruguay
introduction
claimed
that
to
deny
in
that
be
139
based
relatively
on
14 0
situation"
implications
under
remedies
chapter
In
9.19
concerning
5 of
the
or
general
jurisprudence
practice
exhaustion
of
has
This
of
might
domestic
been
of
regard
control
E's
mail.
and
accepts
to
authorities
Nevertheless,
exercise
over
censorship
article
(E's)
of
censorship
Committee
the
literature
See the
Klayman,
See
also
above.
it
that
prisoners'
17 of
the
in
pr. 4.115,
ch. 4,
cited
n. 1 above,
pp. 509-512.
have
been
of
made
criticisms
Justice
Court
of
occasions.
on
International
South
Tests
Cases
Nuclear
the
The
and
J. Dugard,
Realism
About
International
Some
The
Cases:
Africa
(1975-76)
463-504.
16
JIL
Virg.
Decision,
pp.
Judicial
Greek
See ch. 4,
Case
12 YBECHR (1969)
pr. 4.115
is
measures
Similar
The
view
expressed
censorship
the
to
138
141
noted
that,
correspondence.
140
the
to
of
also
and
restriction
correspondence,
for
prison
normal
139
ECHR
HRC
the
Estrella
"With
n. 474
torture
of
4.141
HRC stated
of
The
for
reference
in
O. P.
to
cases.
of
no
the
the
demanded,
makes
the
regards
article
of
acts
finding
as
appears
expression
also
The
as
under
of
identified
tolerance".
"official
rights
contrast
the
HRC
The
element
additional
by
are
which
existed,
number
number
substantial
ill-treatment
The
has
opportunity
decision
small
the
treatment
Committee's
the
treatment
Therefore,
the
E's
of
the
expressly
inhuman
afforded
inhuman
of
HRC
with
not
Covenant.
not
violations
E had
of
the
of
the
of
complaint
some
practice
were
Moreover,
practice
concept.
a practice
"a
example,
in
was
Commission
European
have
this
violation
from
the
of
have
authorities
distinct
ICCPR.
terms
of
there
Libertad
Uruguayan
In
justifiably
might
HRC's
at
138
604
above.
pp. 194-196.
the
See
West
CH. 9
Covenant
to
or
arbitrary
This
or
application
29 October
of
(see
Furthermore
the
detained
allowed
finds
with
compatible
10(1)
article
its
In
the
of
established
party
has
Covenant"
on
the
be
communicate
regular
at
as
receiving
it,
before
was
prison
justified
to
an
as
with
conjunction
.
10
article
points
and
not
in
142
the
of
correspondence
17 read
important
detention
of
as well
information
Libertad
comment
general
to
at
article
some
conditions
State
the
which
extent
of
should
friends
(E's)
that
restricted
and
censored
treatment
10(1)
article
reputable
be
must
humane
supervision
correspondence
On the basis
of the
views
No. R. 14/63).
prisoners
by
to
arbitrary
restriction
by
of
subjected
Committee's
of
required
his
measures
against
of
particular,
Committee
any
communication
standard
necessary
under
family
their
and
visits.
9.20
the
In
with
intervals,
the
on
subjected
with
be
the
of
degree
persons
Covenant.
21
para.
1981
with
consistent
that
requires
censorship
shall
legal
safeguards
satisfactory
be
one shall
interference
unlawful
correspondence".
control
"no
that
provides
605
the
the
concerning
humane
HRC
treatment
of
detainees,
"3.
The
dignity
a
142
basic
humane
of
all
treatment
and
the
persons
deprived
of
of
universal
standard
respect
their
application
for
the
liberty
is
which
The
Doc. A/38/40
p. 150,
pr. 9.2.
communication
is
HRC
by
Antonaccio
the
Uruguay,
to
v.
referred
the
cross
reference
appears
p. 114 although
Doc. A/37/40,
been
to
have
The
reference
should
presumably
mistaken.
in which
Doc. A/38/40
the
p. 101,
pr. 34,
Pinkey
V. Canada,
"[a]
legislative
in
that,
the
provision
very
HRC stated
itself
did
in
this
terms
section
of
not...
general
legal
safeguards
against
arbitrary
satisfactory
provide
".
Cf.
Golder
U.
K.,
A,
EUCT,
Series
v.
application...
Silver
U.
61,
K.,
EUCT,
Series
(1975);
v.
A.,
18
vol.
vol.
U. K.,
EUCT,
131
Series
v.
A, vol.
Boyle
and Rice
(1983);
(1988).
CH. 9
depend
While
material
sources.
in other
the Committee
that
the
respects
detention
and
conditions
modalities
of
may vary
the
they
be
available
resources,
with
must
always
cannot
entirely
is
aware
606
on
discrimination,
without
2 (1)
article
.
4. Ultimate
for
responsibility
applied
this
rests
principle
institutions
where
their
against
for
example,
will,
not
hospitals,
Paragraph
by
10(1).
article
the
That
conditions
of
those
the
10(1)
No
interpretation
punishment",
punishment".
So the
the
remains
final
as
view
support
Paragraph
"ultimate
wide
also,
4 of
of
but
argument
comment
responsibility"
of
of
clinics
of
article
detainees
and
of
has
clear
the
treatment
date
or
contains
application
responsibility
to
the
Covenant
the
all
held
a variable,
"modalities
the
regards
would
of
camps
envisage
hospitals,
prisons,
institutions
9.21
reaffirms
145
above.
the
and
noted
private
the
of
statement
State
the
that
144
obligations.
progressive
is a clear
but
prisons
represents
a
implications
resource
HRC can
suggest
in
detention
143
standard
detention"
of
who
the
as regards
lawfully
comment
HRC of
non-discriminatory,
and
the
of
observance
are
only
institutions".
correctional
recognition
persons
by
required
the
State
the
with
as
dealt
the
in
other
State.
with
the
"cruel
and application
of the expressions
"inhuman
"degrading
punishment"
or
The issue
of whether
as
corporal
punishment
143
9(16),
2 of
the
G. C.
On article
prs. 3,4.
In
Uruguay,
Bleir
above.
Covenant
see
ch. 6
V.
it
130,
that
B was singled
was alleged
A/37/40
out
p.
Doc.
because
treatment
he was a Jew,
for
cruel
especially
inter
found,
2.3.
HRC
The
ibid.,
of
alia,
pr.
a violation
10(1)
but
7
the
to
and
made
no
reference
articles
discriminatory
treatment.
alleged
144
See ch. 6, pr. 6.11-6.13
above.
145
above.
CH. 9
judicial
degrading
constitutes
EUCT.
the
146
article
general
or
educational
corporal
punishment
depends
on whether
as
read
Two
outright
corporal
detention
which
"11.
the
State
party
the
article
general
comment
only
as
constitutes
of
context
are
of
article
corporal
Covenant.
interesting
some
worthy
of
that
alleged
subjected
the
allegations
in
that
noted
senior
which
comment.
V has been
to
conditions
150
In its
of
final
his
officers
he
ill-treatment,
of
alleged
communication
responsible
he
received.
that
adduced
no
evidence
ill-treatment
been
have
of
in accordance
laws
to
the
with
See n. 45 above.
147
above.
Ibid.
Doc. A/35/40
Ibid.,
an
Whether
of
or
raised
was
the
146
150
as
that,
regards
allegations
investigated
149
it
and
HRC stated
Committee
the
7 that
violated
corporal
detainees.
article
named
author
the ill-treatment
148
in
have
treated
As
a violation
in the
punishment
which
148
Consideration
to
Uruguay149
to
chastisement
147
measure".
prohibition
communications
tortured,
the
statement
administered
v.
ill
views
by
considered
extend
excessive
disciplinary
this
concerning
Valcada
must
chastisement".
be relevant
also
might
punishment
In
been
measure
the
noted
constitutes
an
on
prohibition
"excessive
points
has
prohibition
including
punishment,
9.22
disciplinary
treatment
We have
the
Committee
10(1)
as
anti-corporal
punishment
the consideration
of some HRC members during
of
in
its
40
the
HRC's
reports
and
statement
"In
7 that,
the view
of the
comment on article
approach
is
or
punishment
607
pr. 2.
p. 107.
the
for
The
his
duly
which
CH. 9
it
drew
should
party
its
with
accordance
As
regards
Committee
violation
that
show
decision
Of
interest
this
points
to
it
that
of
violation
for
concluded,
of
violation
In
this
violation
investigate
to
7 in
in
in
Covenant
151
against
the
under
a
faith
good
Covenant".
all
also
11
a
found
State
party
laws
its
In
officers.
HRC have established
senior
the
under
allegations
it
and its
the
O. P.
of
violation
authorities.
the
a
to
154
11,12.
prs.
See
ch. 4,
pr. 4.30
153
Doc. A/35/40
p. 110.
154
See ch. 4,
above
and
2.
article
any
paragraph
been
has
153
the
of
in
been
have
to
with
party
against
made
there
failure
State
in
out
appear
O. P.
not
Covenant,
that
named
Ibid.,
152
has
set
the
its
152
Committee
the
there
the
and
members
other
in full,
of
accordance
of
obligation
investigate
of
minority
article
cases
of
the
the
made
allegations
the
7 of
the
opinion
the
views,
of
individual
view
of
reasons
article
opinion
of
number
the
Committee's
the
of
finding
five
to
concerned
2
reads,
that
failed
elsewhere.
which
the
the
with
opinion
article
has
article
dealt
any
respect
person
HRC's
the
with
find
not
the
the
to
this
the
been
not
party
to
is
That
agree
could
in
Covenant
has
In
by
Tarnopolsky
themselves.
associated
"Although
The
allegations
the
of
there
are
article
Mr.
of
case
State
of
2 ICCPR
on article
not
the
required
protection
151
Covenant".
evidential
enough.
provision.
the
The
is
laws.
that
the
notes
it
had ensured
Committee
of
terms
article
find
that
cannot
this
of
these
refutation
investigate
State
12....
attention...
in
general
allegations
608
prs.
4.27-4.33
above.
ch. 6,
pr. 6.25
on
CH. 9
The
that
view
minority
allegations
of
failure
the
violation
a violation
constitutes
609
of
investigate
to
of
7 contrasts
article
itself
article
then
with
rejected
in
although
that
the
the
commission
to
for
is
matter)
subsequent
The
second
E. Quinteros
and
E. Q.
was
of
the
155
156
Panama,
157
of
was
for
view
has
not
would
have
been
in
is
State
the
to
obligation
prohibition
for
that
adopted
by
the
appeared
in
any
if
view
out
state
diligently
156
It
concerned
the
set
liable
substantive
article
to
There
to
its
of
the
other
case
E. Q.
helpful
more
detail
more
note
de
concerning
with
an
and
communication
on her own behalf.
by
Venezuelan
v.
Mexico,
Ibid.,
pr. 20.
6 R. I. A. A. 308
military
personnel
in
Embassy
4 R. I. A. A.
See also
(1933).
the
v.
Uruguay.
behalf
on
It
article
Quinteros
the
arrested
U. S.
of
M. C. Almeida
submitted
daughter
approach
breach
offender.
holding
of
of the
killer.
explanation.
accompanying
A. Q.
the
to
Claim155
concerned
punish
It
opinion
minority
a private
duty
minority
decision.
Janes
its
than
any
of
up
preferable
The
minority.
9.23
the
rather
7 (or
article
the
this
the
responsibility
government
measure
that
responsible
investigate
the
properly
and
submitted
the
actions
held
failure
prosecute
in
the
to
respect.
in
opinion
concerned
with
its
arbitral
of
and
(1926).
Noyes
Doc. A/38/40
See
the
p. 216.
(1984)
25 Harv. ILJ
pp. 440-477;
Jones,
(1986).
46
42
p.
at
p.
her
that
was alleged
in the grounds
Montevideo
82
is
157
Claim,
Note
Anon.,
U. S.
v.
by
Camille
37 Rev. ICJ
CH. 9
tortured.
systematically
denied
E. Q.
on
the
by
at
that
least
in
regards
that
that
1976
victim
was
she
of
her
with
to
"With
regard
author
on her
of
Covenant
17
family
alia,
7
article
know
not
continuing
violations
where
because
162
life.
The
by
the
in
of
State
the
the
anguish
and
disappearance
the
uncertainty
The
author
158
pr. 6.
Ibid.;
pr. 12.3.
Ibid.,
pr. 13.
162
Ibid.,
prs.
163
See ch. 4,
1.9
and
pr. 4.34
her
right
by
the author
It
alleged
was
its
diplomatic
Venezuela
suspended
event
1.3.
ibid.,
pr.
Uruguay,
Ibid.,
daughter
her
concerning
has
7.3.
above.
was
that
to
time
not
Committee
caused
stress
of
the
at
daughter,
163
The
party.
that,
notes
Uruguay
her
regarding
by
whereabouts.
was
alleged
Committee
the
she
incident
understands
by
mother
161
been
inter
claimed,
and
own behalf,
statement
the
the
that
contradicted
160
had
the
of
160
torture.
there
did
and
that,
HRC stated
159
to
article
private
force
detention
violations
of
and
was)
Montevideo
at
10(1)
she
for
arrested
a military
also
because
torture
interference
had
episode
was
police
that
and
A. Q.
E. Q.
subjected
view
7,9
E. Q. )_161
in
the
searching
Venezuela
was
she
the
1976
held
was
where
still
Uruguayan
the
of
articles
of
daughter
of
of
she
expressed
(psychological
the
Embassy
member
Uruguay
violations
(as
the
of
August
HRC
July
on
authorities
in
part
were
28
that
one
in
centre
her
authorities
159
Uruguay.
HRC found
Uruguayan
any
the
that
grounds
The
had
government
throughout
The
The
the
that
stated
and
158
610
to
the
and
the
fate
know
due to
relations
and
what
this
with
CH. 9
has
happened
she
too
her
daughter
The
by
in
but
A. Q.
the
the
communication
of
a "victim
be
does
Covenant
the
individual
the
that
been
have
must
the
aspect
it
recognizes
By
case.
rights
human
persons
Committee".
the
expanding
by
violations
rights
Covenant,
164
noted
himself
who
167
may
Doc. A/38/40
article
individual
a right
be
p. 216,
afforded
pr.
or
set
the
but
that
someone
as
a violation
cause
of
before
class
State
Quinteros
the
of
in
a human
victims
of
the
of
and
anguish
disappeared
parties
increases
decision
the
of
1
that,
acts
a State's
which
to the immediate
relatives
been done
has never
This
persons.
victim
an
of
Covenant
suffering
a
in
mean that
necessarily
individual
by that
suffered
"victim"
of
was
a
by
by
were
not
important
that
also
a violation"
suffered
violation
166
has
One
commentator
else.
most
is
decision
is
violations
requirement
from
comes
whether
"The
the
respects,
suffered
164
7',.
article
that
that
these
violations
of
state
approach
violation
only
to
In
the
a victim
of
in particular,
E. Q.
to
claiming
daughter.
On this
that
forth
is
HRC appears
suffered
165
them.
O. P.
her
to
611
remedy
of
to
the
number
of
by
the
14.
165
last
literal
the
is
the
This
reading
of
The
the
after
paragraph.
comma
quoted
of
sentence
is ungrammatical.
However,
a comma
"particular"
even if
"daughter"
the
still
would
is
sentence
after
placed...
"suffered
is
the
Q.
A.
that
victim
of
violations
a
state
A. Q.
that
than
rather
clearly
stating
by her daughter"
of violations
of the Covenant.
is herself
a victim
166
'victim'
4.75-4.81.1
4,
the
pr.
on
ch.
that
had
decided
HRC
the
Note
that
already
requirement.
behalf
A/38/40
Doc.
to
E.
Q.,
on
act
of
Q.
entitled
A.
was
indirect
3.
Cf.
the
the
victim
concept
of
216,
pr.
p.
79-82.
Mikaelson,
ECHR,
the
see
pp.
under
167
See
Jones,
n. 97
above,
p. 476.
In
the
(Footnote
Case,
Greek
Continued)
CH. 9
This
victim
violations
of
from
the
come
7.169
aspect
Another
HRC's
is
view
indication
or
this
that
suggesting
its
17
23
or
second
criticism
of
this
any
171
one
nature
ICCPR.
these
to
perhaps
source,
10(1),
was
certainly
way
on
the
to
A. Q.
during
denied
is
"wrongfully"
Covenant
to
right
(Footnote
this
the
aspect
of
case.
in that
it
no
gives
legal
right,
or moral,
or
more
articles
7,
Uruguay172
the
of
v.
has
she
understood
this
gives
know
of
further
in
violation
to
support
a relatives
for
three
authorities,
173
detained".
was
as
been
the
period
that
last
perhaps
the
that
10(1)
view
article
expressed
incommunicado
because
S had been held
violated
and
her
A. Q.
of
170
The
HRC
months
"wrongfully
anguish
respects",
Simones
In
the
article
this
to
basis
by
in
whereabouts.
"In
open
the
of
E. Q. 's
begins,
quoted
sentence
denial
the
as distinct
prohibitions
may be that
this
from
resulted
know"
of
and
stress
"right
to
this
was
is
caused
the
within
of
A. Q.
herself
168
E. Q.
It
in
disappearance
The
by
suffered
to
the
that
assume
Covenant
the
of
violations
possible
that
to
appears
commentator
612
whereabouts
If
the
of
the
view
that
if
they
are
a
in
Continued)
Sub-Commission
the
21
that
EUCM stated
of the
above,
n.
to
deliberate
or unnecessary
emotional
suffering
caused
3
families
by article
the
of detainees
was prohibited
Anon.,
ECHR, p. 466. See also
n. 58 above.
168
Ibid.
169
alleged
170
Perhaps
as psychological
treatment.
or inhuman
Jones,
n. 97
above,
torture
makes
no
as
comment
A. Q.
on
point.
171
172
173
For
the
texts
Doc. A/37/40
Ibid.,
pr.
of
p. 174.
12.
these
articles
see
Apx. I.
had
this
Uli. 9
the
the
If
there
that
represents
In
O. P.
failure
to
torture
or
medical
treatment,
the
7 with
themselves.
victims
HRC's
The
phenomenon
failure
of
the
if
HRC's
read
of
expression
of
examples.
draw
might
It
No subsequent
the
of
A. Q.
HRC and
the
and
of
alleged
be
simply
have
Covenant
the
these
not
or
acts
because
the
be
to
claimed
limited
the
acknowledge
and
distress
be
may
basis
the
that
the
detention
to
open
to
relatives.
to
extensive
the
the
covering
by the violation
person
an immediate
following
the
Covenant.
Imprisonment
political
is
difficult
or
decision
on
literally
right
line
be
to
view
to
the
the
of
of
persons
anguish
to
caused
in the
right
denial
to
the
simply
State
causes
development
that
of
application
the
of
or denial
absence
from any ruling
refrained
case
disappeared
Alternatively,
is
questions
violations
could
the
necessarily
the
175
view
of
ICCPR
because
may
the
view
the
of
by
respect
by the
step
victims
his
submitting
relatives
the
direct
the
thought
omissions
any
HRC's
raising
and
HRC has
regards
as
by
suffered
of
the
detention,
acknowledge
ill-treatment,
than
suffering
of
communications
previous
to detained
relatives
suffering
other
protected
of article
a violation
is certainly
a positive
interpretation
a wide
was
then
reading
correct
is
State
the
of
custody
174
Covenant.
613
if
as
fair
religious
trial
views
or
offer
for
the
obvious
where
the
this
pursues
analysis
issue.
has discussed
this
at
to
speculate
it
HRC
all.
174
duty
international
to
law
the
Cf.
customary
116.
in custody,
8,
held
for
n.
see
ch.
persons
account
And
Principles
Draft
On
Detention
The
See
also
14,
in
1
particular
above,
principles
n.
Imprisonment,
17-18.
175
Nieto
V.
Bleir
See e. g.,
v.
Doc. A/38/40
Uruguay,
Uruguay,
p. 201.
Doc. A/37/40
p. 130;
It
no
to
remains
17 because
article
family
life.
It
either
the
HRC
unnecessary
to
there
had
that
of
A. Q.
or
any
of
found
the
can
prevent
has
the
detention,
176
been
six
effective
findings
specifically
family
has
noted.
HRC commented
case
other
been
from
ranging
members,
180
of
and
a dozen
10(1)
in
large
cases
the
HRC has
10(1)
alone.
The
most
incommunicado
number
common
of
violation
detention
for
177
In one
weeks to many months.
detention
on how incommunicado
178
exercise
of other
rights.
violation
possibly
found
the
that
of
to
referred
179
wrongful
and
HRC have
article
and
17 to
of
articles
over
private
article
violation
7 violation.
In
of
her
article
been noted
of
10(1)
article
periods
In
both
176
a violation
have already
these
of
cases.
of
number
point
the
subsumed within
has already
9.24
It
violation
that
speculate
found
it
allegation,
in the light
of its
view
7 in respect
of article
the
possible
of
HRC made
to
possible
a violation
be
violations
only
rejected
decide
the
found
the
unfortunately,
allegation
interference
with
of
is
been
__
A. Q. 's
on
comment
express
that,
note
614
denial
the
denial
also
10(1)
article
the
of
of
the
visits
fact
the
denial
HRC
of
by
of
medical
above.
177
J. L. Massera
Ambrosini,.
M. V. Massera
v.
and
("months");
Doc. A/34/40
Pietraroia
v.
Uruguay,
p. 124
Doc. A/36/40
De Casariego
Uruguay,
p. 153 ("many months");
("four
185
Simones
Doc.
A/36/40
Uruguay.
p.
months");
v.
("three
174
Caldas
Doc.
A/37/40
Uruguay,
p.
months");
v.
192
("six
Doc.
A/38/40
Machato
v.
Uruguay,
p.
weeks");
v.
("five
Doc. A/39/40
Romero
v.
Uruguay,
p. 148
months");
Doc. A/39/40
p. 159 ("several
Uruguay,
months").
178
Caldas
v.
Uruguay,
ibid.
See
ch. 10,
pr. 10.34.3
below.
179
the HRC
In Ambrosini
v. Uruguay,
pr. 9.12 above,
"right"
family
be
by
the
to
to
visited
a
referred
in
Massera
A/34/40
Similarly
Uruguay,
Doc.
v.
member.
(ii).
10
124,
pr.
p.
180
Simones
v Uruguay,
pr. 9.23 above.
CH. 9
181
treatment.
In
Mpandanjila
the
that
view
expressed
because
the
authors
violated
during
is
view
Similar
comments
184
Uruguay.
is
between
no
the
the
In
the
IZquierdo
view
V.
as
of
explanation
the
of
important
material
that
9.25
10(2)(a)
his
final
view
187
v. Canada.
had been
in
prisoners.
181
182
183
banishment
in article
184
188
The
is
Antonaccio
Doc. A/41/40
v.
Ibid.,
prs.
to
was held
12(1)
of the
party
for
8.2,10.
violate
Covenant.
Doc. A/37/40
p. 179.
186
above.
187
Doc. A/37/40
p. 101.
below.
Ibid.,
State
10
at
10(1)
article
is
that
article
during
from
segregated
treatment
that
some
sentenced
9.12.2
as
given
submitted
Mainland
in
that
that
Lower
pr.
HRC
an
to
that,
Regional
prisoners
above.
p. 121.
p. 134.
188
that
Uruguay,
Doc. A/41/40
185
not
his
Again
existed
grounds
worse
the
at
Centre
was
that
was
practice
Correction
he
and
prisoner
the
on
the
the
which
on article
inter
alia,
P alleged,
prisoners
unconvicted
convicted
"The
note
violated
detention
pre-trial
convicted
to
v.
distinctions
The
Pinkey
7.
article
views
no
in
inhuman
treatment
practice
of
in Uruguay
Libertad
which
violated
prison
186
been noted.
has already
found
to
adequate
183
fact.
Solorzano
185
Uruguay
a violation
The
of
found
founded
cases.
been
subjected
banishment
but
of
HRC
of
the
been
deprivation
the
be made
can
"ill-treatment"
there
had
period
which
attention
medical
their
v. Zaire182
10(1)
had
article
as regards
expressed
Others
and
HRC
"ill-treatment"
615
pr. 23.
the
See also
The
administrative
freedom
of movement
ch. 10,
prs.
10.36-37
CH. 9
in
in
cleaners
the
are
The
sentenced
except
to
nature
of
Canada
then
the
remand
unit
are
from
of
on remand
from the
in
accommodated
those
by
occupied
the
ICCPR.
the
covenant
paragraph
indicated
in
be
the
recognized
in
said
draft
the
of
rights
by
prepared
United
the
Nations.
In
it
was
annotations,
all
problems;
to
obliged
Government
that
casual
in
employed
the
correction
centre
provisions
that
replied
of
Ibid.,
the
'in
separate
practical
raise
be
might
parties
with
carrying
out
results
Covenant".
the
contacts
prisoners
convicted
"physical
were
pr. 28 at
and
B.
does
Canada
of
contact
of
be
new prisons'.
construct
the
Further,
work
that
proposal
placed
to
considered
was
if
States
adopted,
quarters'
and
might
prisoners
be
should
life
prison
building.
same
prisoners
accused
of
routine
though
achieved
in
the
detained
employment
but
"casual"
the
article
as
10,
that,
'Segregation
could
text
of
of
was
human
on
Secretary-General
43
This
that
view
same building
the
violate
not
on
annotations
the
of
in
does
prisoners
2, of
paragraph
international
is
prisoners
convicted
remand
189
They
cells
cause
prisoners
inevitable
is
it
from
prisoners.
lodging
the
away
might
in
with
and
This
prison.
them
who
of
Government
the
keep
that
extent
duties.
their
tiers
remand
the
to
the
separate
The
mix
servers
the
of
prisoners
to
allowed
not
food
as
area
prisoners
sentenced
harm.
serve
remand
designed
is
arrangement
other
to
custody
protective
616
convicted
of
menial
in
189
not
prisoners
in_a
duties
breach
regular"
of
from
resulting
were
consider
by
since
the
such
means
did
they
no
CH. 9
in
bring
fact
in
together
In
its
unconvicted
final
Committee
that
means
(but
quarters
buildings).
with
between
to
10(2)
(a)
view
that
had
The
10
(2)(a)
"necessarily"
possibility
contacts
set
in
mean
have
to
between
some
separate
two
the
and
sensible
allegations
prisoner
190
191
his
that
was
worse
Ibid.,
pr. 29.
Ibid.,
pr. 30.
circumstances
buildings.
that
as
given
quarters"
does
this
leaves
it
The
open
not
the
might
decision
be
on
to
appears
for
States
prisoners
HRC expressed
cells"
article
into
reading
standard
treatment
than
of
the
of
"separate
buildings
practical
of
to
That
adopt.
taken
tiers
close
the
article
have
purposes
are
for
that
to
of
classes
the
Unfortunately,
parties.
not
separate
in
that
comes
requirement
did
drafters
the
necessary
the
the
that
prisoners
view
separate
for
cleaners
being
as
necessary
seems
"in
result
end
of
the
express
it
violated
been
and
provided
classes
not
the
whereby
prison
minimum
191
tasks".
"segregation"
10(2)(a).
that
accommodation
constitutes
article
did
HRC
two
those
of
performance
the
the
separate
party
10(2)(a),
article
separate
regard
not
servers
the
of
in
in
State
food
convicted
kept
be
the
as
area
contacts
kept
strictly
As
work
remand
incompatible
by
exceptional
from
shall
the
Covenant
the
in
save
segregated
they
that
opinion
(a)
of
necessarily
Committee
would
persons
convicted
in
the
the
shall,
described
arrangements
that,
not
The
prisoners
190
basis.
a regular
10(2)
of
article
requirement
'accused
that
persons
be
circumstances,
persons'
convicted
on
HRC stated
is
of
the
view
"The
and
proximity
physical
617
no view
on P's
unconvicted
as
to
convicted
CH. 9
prisoners.
192
Finally,
the
one
case represents
has referred
State
party
its
the
this
is
For the
ibid.,
see,
to
193
submissions
pr. 28 at
See Bossuyt,
interesting
the
of
the
The recent
submissions.
Preparatoires
Travaux
of
practice.
a more frequent
192
point
it
618
few
occasions
travaux
A.
n. 1 above.
on
that
which
a
in
To
a 'Guide
to make
may help
of
the ICCPR'
193
the
note
preparatoires
publication
of
to
State
party
on
this
CH. 9
619
APPRAISAL.
9.26
HRC's
The
has
procedure
examining
in
their
individually
for
the
need
and
compensation
an
first
and
to
proceed
effective
in the
these
procedures.
could
have
195
been
more
second
The
9.27
depends
States
the
in
whether
of
account
the HRC and
the
and
is
See prs.
work
9.4-9.4.1
196
See prs.
In
9.9-9.10
of
and
HRC is
to
of
assess
had
7 have
take
could
of
and criticisms
domestic
laws
the
HRC
focuses
the
and
the
and
on
more
of
consideration
judgement
While
early
faith
good
parties
parties
institutions
of
procedure
article
between
report.
the
matters
difficult
with
HRC
the
of
the
of
relevant
matters
of
national
comments
States
periodic
See Torture
and
States
dialogue
195
covers
of
their
that
reporting
very
constructive
detailed
subsequent
in
an
reserved
the
the
of
each
consideration
reappraise
representatives
effectiveness
Similarly,
for
HRC to
consideration
cooperation
It
HRC's
The
practices.
194
the
on
the
suggested
which
196
of
Certainly
effect.
specific
'consideration
allows
its
concern.
importance.
the
the
and
dynamic
publicity
immense
during
also
parties.
international
of
reports
effectiveness
ultimately
of
We have
contemporary
continuing
recognised
some domestic
safeguards
and
investigation
through
194
Having
a violation.
remedy,
article
of
sentence
members
have
implementation
practical
The
procedural
periodic
second
and
in
prohibition
systems.
event
information
basic
the
the
apply
through
for
probing
HRC collectively
importance
vital
control"
reporting
opportunity
critically
domestic
the
and emnccized
"machinery
of
and
the
under
useful
parties
the
and
obtained
on
States
article
any
provided
how
article
information
obtaining
of
on
work
years,
as
time
may
passes
above.
The
Eighties,
above.
n. 1 above,
be
ch. 6.
CH. 9
the
or
effectiveness
become
9.28
for
9.29
Similar
has
and
do
to
managed
provisions
HRC has,
some
important
on
HRC's
to
certain
Incommunicado
of
The
explanation,
HRC has
The
of
evidence
have
been
number
of
final
are
views
201
In
ambiguous.
failed
to
comment
failed
to
develop
of
arbitrariness
have
to
as
on these
categorization
element
of
detention,
the
solitary
been
its
views
in
its
confinement
the
object
of
above.
See generally
1199
See n. 65 above.
200
See n. 65 above.
201
See
the
or
treatment
medical
10(1)
7 or
others.
allegations.
intelligible
consistent,
real
consieered
a
HRC's jurisprudence
the
without
have
recommendations
article
have
no
on
for
publicity
is
There
incomprehensible
unhelpful,
O. P.
the
under
attitude
criticizing
while
the
assessing
an
the
of
area
manifested
199
HRC.
Again
of
aspects
in
and
a potent
often
has
of
We
is
so
State
these
minimal.
remedies
198
has
testing
of
been
violations
197
State
majority
the
for
200
and
to
work
vast
with
any
constructive
HRC's
which
that
denial
the
subjected
apply
The
date
findings.
will
in
commend
publicity
198
progress.
the
Uruguay
views
leading,
Such
10.
and
non-cooperation
the
it
considerations
often
to
reports
Moreover,
of
concerned
their
and
change
effectiveness
followed.
has
lacking.
sadly
force
to
It
work
offending
antagonizing
or
is
that
national
unfortunate
-It
in this
for
HRC's work
the
publicity
sensitivity.
international
HRC's
much
HRC's
unduly
197
without
article
been
and
examination.
been
has
date.
to
work
representatives
has
of
there
Certainly
critical
the
otherwise
apparent.
more
HRC's
620
cases
ch. 2,
pr.
2.9
above.
cited
in
prs.
9.12.1-9.12.3
above.
n"v
violations
statement
they
on
finding
the
Libertad
of
a violation
stress
and
anguish
the
of
clear
Covenant
improve
to
HRC on
in
significance
terms
the
can
it
that
the
been
only
seems
views
of
of
marginal
human
effective
also
reporting
analysis,
than
of
examining
(1)
10
under
have
provisions
in
7 and
of
a
fate
their
of
experience
otherwise
the
disappearance
the
final
the
the
also
in
7 violation
consideration
conclude
these
possibly
article
articles
in
However,
procedure.
and
HRC's
its
7 and
articles
inhuman
treatment"
of
by
that
views
uncertainty
concerning
and
difficult
an
continuing
The
communications
the
no
the
the
violate
Uruguay,
caused
whereabouts.
inform
been
of
been
a "practice
in
finding
and
can
of
prison
relative
have
detention
of
conditions
and
provisions
developments
constructive
at
has
there
Similarly,
or any accompanying
explanation.
been
no
clear
statement
on
mental
or
from
torture.
More
as distinct
physical
psychological
10(1),
which
exactly
violate
has
there
but
Covenant
the
of
b21
rights
protection.
There
9.30
international
of
elimination
and
laws
civil
measures
directed
torture.
These
and
number
of
Filartiga.
of
V.
human
rights
international
202
courts.
202
generally
630 F.
ch. 1,
2d. 876
pr. 1.37
criminal
human
and
an
large
rights,
a
codes,
which
States
rights
(1980),
above.
Court
and
and
consider
The
watershed
another
the
namely
by
standards
966
in
Appeals
of
highlighted
19 ILM
of
a range
practices.
protection,
human
and
governmental
has
Pena-Irala
suppression
provisions,
similar
United
and
national
protecting
instruments
and
the
the
include
organizations
non-governmental
torture
monitor
decision
to
international
of
national
of
for
international
of
panoply
administrative
institutions
national
array
exists
(1980).
method
of
use
national
See
CH. 9
The
The
protection.
flourish
and
survive
its
report
In
world.
International
from
to
recognised
was
Europe
and
organization
and
related
9.31
The
within
the
features
principal
Many
ill-treatment.
HRC
the
also
Committee
Against
suggestions
and
on
and
period
complex
regime
for
Torture.
the
See n. 1 above.
204
See n. 1 above.
may
report
Each
torture
on
which
other
previsions
the
States.
of
contains
obligations
in detail
address
and
under
Council
of
the
these
protection
(U. N. C'. A. T. )
a series
1980
January
Convention
facilitating
of
ill-treatment
the
American
a domestic
203
the
206
make
the
play
and
practices
of
matters
The
process.
Under
such
it
U. N. C. A. T.,
n. l above,
articles
International
Emerging
The
Donnelly,
J.
(1986)
1-23.
NILR
33
pp.
Torture,
and
prevention
1-16.
Regime
elected
Chanet
reporting
"comments
may
of
establishment
as
can
cover
reporting;
205
206
regime
the
effective
provisions
Committee
the
that
Nations,
of
provides
Convention
procedure
more
United
torture
of
suppression
for
the
Convention
of
in
role
effective
by
for
produced
204
of torture
205
These
undertakings.
raised
now
Nations
United
is
torture
of
Organization
practices.
a definition
an
reports
need
has
represents
impressive
however,
The
the
0,. P.
seemingly
countries
mid-1983.203
the
reporting
to
and related
practices
continues
in every
geographic
region
of the
"Torture
In The Eighties",
Amnesty
cites
ninety-eight
the
under
under
reality,
torture
of
phenomenon
HRC
views
in this
developments
further
of
its
and
procedure
the
of
considerations
622
and
consider
See
Against
and includes
(France),
see
CH. 9
207
appropriate".
Committee
new
more
in
deficiencies
assumed
to
article
40(4).
the
in
the
State
211
the
HRC
be
effectively
of
the
U. N.
of
the
visiting
the
its
to
Committee
208
209
Article
Articles
State
State
Article
the
party
concerned,
211
Article
212
Report
the
19,
contain
is
it
that
and
final
visiting
Torture
of
opting
Whether
the
by
be
that
ratification
parties
opt
they
communication
work
Committee
new
of
whether
out,
will
the
level
for
provides
opt
out
into
procedures.
U. N. C. A. T.
prs.
3.29-3.35
21 and
above.
22 U. N. C. A. T.
respectively.
20 U. N. C. A. T. With
the agreement
inquiry
include
to
could
a visit
20(3).
article
28
being
the
for
States
whether
inter-state
and
by
interpretation
the
procedures,
received
ill-treatment
that
jurisdiction,
See ch. 3,
210
on
Convention,
individual
207
by
overtaken
and
against
212
and
depends
Torture
Against
in
derogation.
torture
on
party
to
of
a
by
the
out
provision
no
or
reservations
it
Convention
advance
with
state
torture
opt
been
operated
Unfortunately,
to
European
visits
compulsory
the
210
advance
have
be
to
to
that
important
most
major
to
the
appears
parties
The
The
information"
reliable
practiced".
optional
communications
system
indications
procedures.
of
"any
under
provides
was
with
"which
permits
also
however,
co-operation
of
systematically
making
Torture.
HRC has
the
comments
individual
209
inquiry
in
well-founded
marks
and
Convention,
basis
general
the
give
particular
than
parties
its
to
appear
address
U. N. C. A. T.
The
Committee
text
in
under
confidential
the
the
States
Against
Committee
would
directly
to
scope
inter-state
U. N.
mandatory
on
date
208
Committee
to
provision
specific
for
procedures
the
This
623
of
the
U. N. C. A. T.
See n. 1 above
(1987).
and
the
accompanying
Explanatory
the
v4'.
CHAPTER
10:
14.1
ARTICLE
10.1
Article
14.
1.
be equal
shall
persons
In the determination
All
tribunals.
against
at law,
hearing
him,
rights
be
shall
excluded
morals,
in
security
the
the
all
order
public
a democratic
lives
private
extent
in
court
from
strictly
special
of
the
courts
and
of any criminal
charge
in a suit
and obligations
a fair
to
entitled
independent
competent,
by
law.
established
may be
of
his
of
everyone
by
a
tribunal
of
or
before
or
The
part
(ordre
society,
the
parties
in
necessary
circumstances
and
press
the
and
a trial
of
and public
impartial
for
public)
or
or
the
when
so
the
where
public
reasons
national
interest
requires,
opinion
publicity
to
or
of
the
would
10,11
For
UDHR;
provisions
see
similar
arts.
8,10
XXVI
ADRD;
7,26
6 ECHR;
AMR;
arts.
art.
arts.
art.
history
drafting
14
For
the
AFR.
of
article
see
(1959);
A/4299
Docs. A/2929
pp. 42-44;
pp. 9-17
and
'Guide',
See
Noor
Mohammed, - Due
Bossuyt,
pp. 277-319.
in
Persons
Accused
Of Crime,
Of Law For
Henkin
Process
Bill
Of
(ed. ),
International
RightsICCPR,
The
The
Guarantees
Ibid.,
For
An
Person
Accused
pp. 138-165;
(1980)
20 Ind. JIL
Covenants,
The U. N. Human Rights
Under
198-211;
in
R.
Lillich,
Civil
Rights,
T. Meron
177
at
pp.
In
International
And
Human
Rights
Law
Legal
(ed. ),
139-145;
Natural
Issues,
F. Newman,
Policy
pp. 115
at
And The New International
Due Process
Covenants
Justice,
(1967)
Rights:
Prospectus,
Law
Human
Public
On
The
P. Sieghart,
International
Law Of Human
pp. 274-313;
(1983);
The
P. Van
Dijk,
Rights,
pp. 268-285,291-307
To A Fair
Trial
Under
International
Of An Accused
Right
Law (1983).
in
further
this
For
material
and
recent
studies
In
Right
Harris,
The
D.
J.
To
A
Fair
Trial
see
area
(1967)
As A Human
16 ICLQ
Right,
Proceedings
Criminal
(ed.
),
Human
Criminal
Andrews
J.
A.
Rights
In
352-378;
pp.
(1982);
Study
Comparative
S. Hertzberg
and
Procedure
-A
The
Protection
In
The
Human
Rights
of
C. Zammuto,
Under
And
International
Process
Instruments
Criminal
(1981);
And
Constitutions
I. D Duchacek,
Rights
National
Today,
(1973).
the
In The World
See also
ch. 4,
Liberties
M. A. Rannat,
In
U. N. studies:
Study
Of Equality
following
2/
Of
Justice,
Administration
Doc. E/CN. 4/Sub.
The
1
296/Rev.
(Footnote
Continued)
Lri
interests
the
prejudice
in
rendered
otherwise
disputes
matrimonial
persons
2.
Everyone
the
right
him,
guarantees,
(a) To be
shall
in full
informed
charge
(b)
To
have
himself
to
this
him,
be informed,
not
in
and
the
of
until
have
shall
proved
guilty
charge
the
against
following
minimum
detail
and
nature
and
and
in
a language
for
facilities
to
the
of
cause
the
communicate
with
to
defend
own choosing;
legal
if
assistance
he does
and to have
right;
in
where
case
any
require,
he does
children.
equality:
promptly
through
and
concern
offence
undue delay;
without
in
his
tried
own presence,
be
or
of
criminal
to
time
adequate
his
defence
of
of his
counsel
(c) To be tried
To
any
be entitled
understands
him;
against
preparation
(d)
of
he
which
proceedings
guardianship
a criminal
innocent
judgement
any
be
at law shall
juvenile
of
law.
determination
everyone
the
or
the
but
a suit
interest
the
requires
or
in
or
where
with
charged
to be presumed
to
according
3. In the
case
except
public
made
625
justice;
of
a criminal
tu
of
and
his
legal
not
have
legal
assistance
interests
the
own choosing;
assistance,
of
assigned
justice
case
of
to
so
if
Continued)
(Footnote
The
In
Amnesty
Laws
And
Their
Role
L. Joinet,
(1972);
Doc.
Of
Rights,
Promotion
Human
And
Safeguard
(1985);
L. M.
2/1985/16
Singvi,
Independence
E/CN. 4/Sub.
Of The Judiciary,
And Assessors
Jurors
And Impartiality
2/
4/Sub.
Of
Lawyers,
E/CN.
Doc.
Independence
The
And
Treatment
Study
On Discriminatory
And Add. 1-6;
1985/18
Linguistic
Ethnic,
Racial,
Religious
Or
Of
Members
Of
Of.
Levels
In
Various
The
The
Administration
At
Groups
Military,
Such
As
Police,
Justice,
Criminal
Arrest,
And
Judicial
Investigations,
Administrative
Including
Execution
And
Of
Trial
Sentences,
Detention,
To
Lead
Which
Or
Or
Beliefs
Contribute
Ideologies
The
Justice,
Administration
The
Of
Criminal
In
Racism
1
introduction
2/L.
766,
4/
Sub.
and
E/CN.
ch.
and
Docs.
/
1982/7.
2.
4/Sub.
E/CN.
Ln
(e)
him
To examine,
have
or
obtain
on his
witnesses
free
guilt.
confess
4. In the case
against
examination
of
conditions
as
same
to
if
he
used in court;
himself
against
or
testify
the
persons,
take
interpreter
of an
language
the
speak
juvenile
of
will
desirability
witnesses
and
the
under
assistance
understand
cannot
(g) Not to be compelled
as
attendance
behalf
or
such
the
him;
against
witnesses
(f)
To have the
be
626
examined,
the
to
and
lu
shall
procedure
their
of
account
the
and
age
to
their
rehabilitation.
have the right
to
5. Everyone
of a crime
convicted
shall
higher
by
being
his
a
sentence
reviewed
and
conviction
to law.
tribunal
according
been convicted
has by a final
decision
6. When a person
his
and
when
subsequently
offence
criminal
a
of
of
the
the
the
unknown
convicted
or
on
pardoned
fact
shows
suffered
of
as
punishment
which
in
acquitted
each
of
The
be
he
tried
has
or
been
already
the
with
accordance
again
punished
finally
law
and
country.
Procedure
Reporting
Introduction.
10.2
14
Article
in
provision
2
that
to
for
14 Under
Article
has
liable
be
shall
offence
been
him.
to
procedure
penal
there
who
has
discovered
newly
has
been
a miscarriage
or
new
he
or
be compensated
according
shall
conviction
is proved
it
that
the non-disclosure
of
in
is
fact
time
partly
or
wholly
unless
attributable
7. No one
reversed
person
such
of
an
that
conclusively
justice,
for
that
ground
result
to law,
been
has
conviction
promoting
is
article
not
covered
4(2)
by
ICCPR.
the
2
non-derogation
has
It
It
On derogation
see ch. 7 above.
least
some parts
of
article
at
been
the
(Footnote
Continued)
"; ti
subject
of
During
the
feature
central
is
at
texts
procedural
and
codes
rights
guaranteed
sought
to
its
various
aspects
aspects
but
that,
to
reports
the
penal
been
have
compliance
has
of
its
"Not
complex
provisions
all
that
the
will
reports
need
civil
and
complex
14
of
have
to
State
the
of
of
the
different
that
specific
provided
The
relevant
members
is
given
"article
and
the
of
14.
closely
the
with
nature
of
codes,
14.6
HRC
article
how practical
effect
in the
domestic
law
noted
14
article
article
and
general
members
is
of
by
understand
concerned.
HRC
The
Covenant
codes
for
examined
critically
that
Constitutions,
accompanying
of
as
its
of
The
administration
importance
State
of
parts
appropriate
in
provisions
proper
regarded
and
therefore,
great
attached
the
the
ensuring
surprising,
not
HRC have
that
law
of
has
its
although
been noted.
often
long
been
has
it
reports
alone
14(4).
article
State
with
9 has
rule
HRC stated
comment the
"aimed
are,
5
justice".
It
the
of
under
of
article
hearing
with
fair
627
comment
consideration
dealt
been
generally
relationship
to
right
general
IU
comments",
details
on
the
Continued)
(Footnote
Commission
see International
of Jurists,
non-derogable,
is
it
(1983),
Study
of Emergency,
p. 426 where
of States
"Some
has
in
direction
that,
this
progress
suggested
international
been
by
law".
made
already
3
1984
Comment 13/21,
General
adopted
on 12th April
23
1984
July
(SR
516)
537),
Doc. A/39/40
(SR
and
in
Doc.
CCPR/C/21/Add.
3.
Also
143-147.
pp.
4
9 covers
liberty
the
Article
to
and
right
of the person.
security
5
G. C. 13/21,
n. 3 above,
pr. l.
6
rights
7
identifies
n. 2 above,
14, pp. 424-426.
SR 366 pr. 12
(Tomuschat
20 distinct
on Iran).
L. n
legislative
implement
HRC's
other
and
each
of
number
methods
of
adopted
article
of
article
14
have
work
14".
The
involved
an
of which
examples
only
can
artificial,
somewhat
into
a paragraph
by
and comments
a few illustrative
though
to
specifically
questions
and
outline
a schematic
It is instructive,
be given.
down
HRC's
the
break
to
paragraph
b2i
provisions
of
considerations
enormous
the
tu
analysis.
is
It
G. C. 13/21,
n. 3 above,
pr. l.
information
to
that
relevant
article
note
in
introductions
the
general
contained
often
2
article
of States
on
parties
the sections
6 above.
2
ch.
see
article
to
important
14 is
also
to and in
On
reports.
CH 10
(1)-.
14
Article
629
to ascertain
how the
of the HRC have sought
"all
before
persons"
of
courts
equality
and tribunals
hearing"
to a "fair
and public
and the entitlement
are
9
in the domestic
law of the
States
parties.
guaranteed
has been
directed
to
the
terms
Particular
scrutiny
of
10.3
any
Members
between
distinctions
discrimination
citizens
against
political
political
of
grounds
been
have
13
capacity.
aliens10
12
opinion.
Similarly,
to
the
example,
"With
reference
to
before
equality
by
avoiding
the
in
mentioned
many
serious
that
unequal
would
Iceland
need
See e. g.
done
was
46 of
and
SR 67 pr. 19
in
tribunals
and
also
to
was
the
of
not
in
For
steps.
Covenant,
achieved
legislation
simply
as
There were
report.
barriers
and language
to
access
on
the
cultural
and there
was
interesting
be
had
14
courts
discrimination
make
or
difficulty
practical
article
social,
could
take
paragraph
any
questions
legal
on
put
emphacized
and
offenders11
concerning
restrictions
have
Members
the
stressed
before
equality
courts
and
securing
and
the
courts
the
extremely
question
of
hear,
therefore,
doing
(Tarnopolsky
to
cost.
ensure
It
what
that
on GDR).
10
65
(Graefrath
SR
See
on
e. g.
pr. 34
188
SR
(Dieye
Sweden)
Czechoslovakia);
pr. 24
on
for
deposit
the
cautio
requirement
a
concerning
Reply
See
SR 188
judicatum
also
at
solvi.
pr. 31.
"The
2
the
HRC
the
on,
general
comment
of
of
paragraph
15(27),
the
C.
Covenant",
G.
under
aliens
of
position
(1986).
pp. 117-119
Doc. A/41/40
11
SR
on
(on
Ln
before
equality
those
14
to
access
profession".
that
Some members
the
principle
not
merely
in
16
find
would
one
the
of
procedural
the
of
in
judiciary
In
practice.
the
specify
texts
and
before
of
are
the
legislature".
14
judiciary
17
from
The
guaranteed
should
legislative
and
the
of the
impartial
to
the
courts
actual
for
office;
and
independence
branch
this
of
and
in
manner
transfer
executive
sentence
the
courts,
parties
regard
and
the
final
and
promotion,
functions
their
law
the
qualifications
their
terms
of
of
appointed,
the duration
governing
conditions
of
with
on
and
public
independence
and
establishment
independent,
are
particular
and
appointment,
the
they
that
ensure
cessation
for
provide
which
the
fair
constitutional
that
of
it
equality
States
particular,
but
another
HRC stated
information
by
established
relevant
in
competent,
judges
which
the
are
view
"meant
the
vis-a-vis
little
specific
been
comment
detailed
their
law,
and
citizen
though
the
equal
legal
to
citizen
to ensure
that
taken
equality
steps
including
to
access
courts,
equal
impartiality
hearings
and competence,
the
meant
and
the
general
"more
useful,
really
indicated
HRC have
before
the
equality
of
has
terms
its
In
courts
between
equality
15
There
executive".
discussion
parties.
of
630
courts
the
of
equality
the
also
the
10
and
the
is
comment
(Graefrath
392
Iceland).
For
pr. 6
on
(1981).
4
Doc. CCPR/C/10/Add.
see
Iceland's
report
(Graefrath
SR 117
Byleorussian
on
see
pr. 50
Similarly
SR 221 pr. 31 (Vincent-Evans
on Colombia).
SSR),
15
Ibid.,
SR
SR 187 pr. 26
pr. 50 (Tarnopolsky
16
Case,
(Tomuschat
on
on Poland).
decision
See the
A, vol.
EUCT, Series
17
G. C. 13/21,
of
11,
n. 3 above,
Poland).
the
EUCT
(1970).
pr. 3.
in
See
the
also
Delcourt
CH 10
in
terms
18
clearly
doctrine.
10.4
There
under
the
charge"
of
classic
been
also
procedure
perhaps
surprising
and
little
of
obligations
separation
of
powers
discussion
specific
"criminal
the key terms
19
in a suit
at law".
in
bearing
the
mind
jurisprudence
expressions
but this
the
reporting
and "rights
is
This
has
of
631
is
article
petitions
18
simply
probably
a reflection
40 as a reporting
process
20
The
scope
procedure.
Cf. The
Graefrath
comments
of
U. K.
For
below.
a recent
perspective
(1987).
Law,
Constitutional
ch. 9,
the
on
rather
of
in
the
nature
than
latter
text
to
n. 50
C. R. Munro,
see
19
the
the
During
the
consideration
of
report
of
Case,
Series
to
the
Konig
EUCT,
FRG Mr. Opsahl
referred
labour,
finance
A, vol. 27 (1978),
and asked
whether
and
be
by
14,
SR 92
would
covered
courts
article
social
See n. 20 below.
pr. 37.
20
' 'civil.
the
regards
expression
rights
and
has
declined
EUCT
the
to give
an abstract
obligations'
but
has
definition
established
a set
of
applicable
however,
differ,
Members of the EUCT still
principles.
those
Bentham
the
of
principles,
application
see
g.
e.
on
97,
(1985):
Series
A,
EUCT,
Netherlands,
vol.
article
v.
by 11 votes
the
to 6. Recently
6 ECHR held
applicable
for
the first
time
the applicability
EUCT has considered
has
6(1)
ECHR
to
It
social
security
matters.
of article
in
law
its
the
principles
established
case
reaffirmed
by
determining
decided
the
the
cases
whether
private
and
involved
law
See
elements
predominated.
public
or
Netherlands,
EUCT,
Series
A,
v.
Feldbrugge
vol. 99
EUCT,
FRG,
Series
Deumeland
A,
(1986);
v.
vol. 100
divided
The EUCT is similarly
(1986).
on the expression
Campbell
"criminal
see e. g.,
charge",
v. U. K.,
and Fell
6 held
A, vol. 80 (1984):
article
applicable
EUCT, Series
6
to 3. Generally
by 4 votes
on the
scope
of article
Van Dijk
pp. 133-147;
ECHR see Fawcett,
and Van Hoof,
(Footnote
Continued)
As
CH 10
decision
comment,
"In
however,
the
general,
that
recognize
determine
law.
at
and
at
a suit
fails
to
give
any
concepts
in
article
it
of
State
to
State
the
be
can
concepts
more
itself
but
appear
to
problems
ECHR at
at
the
article
(Footnote
be
by
valid
to
the
level
the
level
in
State.
This
for
information
the
concepts
to
relation
in
their
practices
its
parties.
This
giving
14(1)
article
only
by
the
greatly
autonomous
HRC
would
criticism
is
be
from
widely
recognised
interpretation
of
might
key
the
understanding
with
not
it
to
vary
indicate
that
criticism
definition
assessed
if
these
obligations
obvious
compliance
States
with
22
or
If
that
by
and
in
a suit
necessary
how
'rights
criteria
regional
universal
14 (1)
.
detail
interpreted
even
occasioned
the
greater
open
in
to
in
meaningfully
also
State
relevant
and
procedures
obligations
all
HRC should
so
to
provide
14(1).
the
criminal
to
systems".
is
of
more
are
comment
to
the
legal
respective
only
dealing
from
charge'
law'
not
all
explain
'criminal
to
also
practices
it
parties
and
general
fail
applies
but
its
parties
determination
widely
important
an
in
states
14
rights
makes
to
This
of
issues
individuals
vary
States
of
reports
their
diversity
and
the
of
21
Protocol.
the
Laws
matters
subject
article
against
charges
the
address
for
procedures
to
been
Optional
the
under
HRC did,
The
indeed
has
expression
632
that
the
6
article
compounded
content
to
Continued)
6(1)
Harris,
The
Application
J.
D.
Of
Article
238-247;
pp.
To
Administrative
(1974)
ECHR
BYIL
Law,
The
Of
W.
Bradley,
The
ECHR
Law
A.
And
Administrative
157-200;
pp.
21
(1983)
Osgoode
Impressions,
Hall.
L. J.
First
F.
C.
J.
Kidd,
Disciplinary
The
And
Proceedings
609-635;
pp.
Trial
Fair
Under
A
On
The European
To
Right
convention
36
(1987)
ICLQ
Rights,
pp. 856-872.
Human
21
See Y. L. v. Canada,
10.26
pr.
22
G. C. 13/21,
n. 3 above,
pr. 2.
below.
CH 10
important
10.5
Two
fair
hearing'
legal
the
matters
of
general
have been raised
by
that
have
is
organized,
the
or
operating
applicable
their
exercise
"wished
who,
know
to
lawyers
With
regard
information
grounds
legal
to
the
of
consideration
public
aid
France
article
14
both
civil
sought
conditions
the
problems
25
For
of
report
State
have
the
raised.
were
profession?
have
certain
members
the
was
application
during
example,
Sir
Vincent-Evans
that,
commented
In
connection
which
a court
obtaining
even
with
to
applied
he observed
proceedings,
case might
justice
more
so
with
that
not
regard
(Tomuschat
of
in
to
the
Covenant,
and
criminal
in
involved
costs
prevent
only
the
sometimes
23
25
profession
limitations
discretionary
any
24
interest?
there
of
and
scheme
aid
to
availability,
it
secure
aid.
required
their
only
was
its
on
to
necessary
a legal
of
who
practicing
or
on the
control
and
required
qualifications
legal
profession
independent,
or
servants
before
they
of
legal
concern
legal
the
free
public
authorization
Were
how
it
Was
organized.
24
members
restrictions
and
in practice
freedom
to
and their
23
is that
A typical
approach
profession.
Mr. Tomuschat,
to
relevance
profession
and the availability
information
sought
on how the
They
of
633
a person
a criminal
the
from
but
case
recognition
of
(Tomuschat
on Tanzania),
in
Iran).
If
a given
the
was interfered
with,
72
SR 431 pr.
warped",
on Bulgaria).
decision
the
See
the
EUCT in
Airey
of
A, vol. 32 (1979).
Series
See also
A. 8158/78
Ireland,
21 D. & R. p. 95; A. 11714/85
(refusal
U. K.,
v. v. U. K.,
legal
minor
aid concerning
charges).
v.
v.
of
CH 10
634
had referred
Mr. Guillame
to legal
right.
civil
but that
in France
was often
not granted
except
be interesting
the
poorest
very
and it
would
know
paragraph
of
14.
Republic
Ombudsman
or
improve
The
by
established
Discussion
and
nature
forms;
and
The
nature
Members
10.7
law'
and
have
26
439
SR
Add.
Doc. CCPR/C/22/
to U. K. representatives.
the
generally
with
have
members
has
of
the
offices
for
the
the
of
be
could
to
used
in
particularly
hearing
judiciary
hearing'
attention.
on (a) the
(b)
tribunals;
and
by
tribunal
focused
courts
an
of
detailed
primarily
(c)
the
public
impartial
attracted
jurisdiction
in
guarantee
and
or
pr. 44.
2 (1982).
of courts
determine
to
sought
extraordinary
in
and
and
'public
the
courts29
29
'fair
powers;
organisation,
28
aid
connection
justice
of
has
nature
27
the
all
its
and
the
thereon.
limitations
(a)
of
(d)
legal
representative
asked whether
defensor
del
pueblo
and comment
jurisdiction
separation
for
France
and
HRC
was
of
requirement
independent
competent,
the
administration
28
areas.
to
that
example,
the
the
14.27
to
that
mechanisms
other
in securing
may be useful
respect
For
Dominican
in
was
profession
in
raised
article
lawyer
article
10.6
been
however,
recognised,
individuals
situation
26
legal
the
concerning
have
also
systems
rural
current
individual.
class
middle
Matters
the
what
aid
jurisdiction
the
of
tribunals
The
Similar
and
that
French
questions
tribunals.
existence,
special
dealt,
or
for
report
were
is
put
below.
pr. 396.
the
ICCPR does
not
of
article
, sentence
in preference
the
term
'court'
term
the
have
14
members
'tribunals'.
to
use
CH 10
example,
labour
with
or
procedures.
military
of
have
operation
Members
sought
in
respect
particularly
that
assurances
the
with
did
in
explanations
from civilian
of
possibility
authorities
bodies
that
critical
attention
30
See e. g.
the
If
removal
authorities
the
have
been
36
and
have
that
of
asked
whether
to
concerned
34
Among
considered.
matter
close
'Special
Courts',
'Self-Management
SR 77 pr. 29
tribunals
such
members
was being
have
attracted
Committees',
Security
matters,
and
in
accordance
operated
of
returning
civilian
kind
of
civilian
14.33
article
jurisdiction
civilian
exercise
of
tribunals
such
guarantees
requested
jurisdiction
the
disputes
or
economic,
social
or
30
or that
applied
special
rules
has
been
particular
the
concern
32
tribunals.
or
revolutionary
details
jurisdiction,
their
of
matters,
31
Of
administrative
635
(Hanga
the
the
and
35
often
'Public
37
Courts',
on Norway).
See n. 18
above.
31
See
e. g.
SR
221
pr. 30
(Vincent-Evans
on
See
e. g.
SR
84
pr. 28
(Vincent-Evans
on
Colombia).
35
Madagascar).
36
37
Yugoslavia).
See e. g.
See
e. g.
SR 90 pr. 13
SR
98
(Tarnopolsky
prs.
51-52
on
Iran).
(Vincent-Evans
on
CH 10
'Comrades
Courts',
40
Courts',
38
'Gun
and
Consideration
the
question
the
establishment
the
Courts'
the
of
Courts',
41
special
courts
42
thought
clearly
the Covenant,
contravene
"With
aforementioned
it
was planned
judicial
Declaration
by
members
member
such
14.. he
had
up
special
courts,
order,
to
try
members
of
had,
of
with
in
outside
the
to
right
previous
Any
punish
foreign
but
crimes,
judicial
the
the
he provisions
have further
of the
details
contrary
like
Covenant,
and he would
43
those
about
plans".
38
SR 155
pr. 15
See
e. g.
creation
order
of
would
tribunals
the
that
corruption.
the
course,
would
noted,
set
charged
the
Government,
the
of
of
step
to
administration
Government
One
article
to
regard
raised
Covenant
of
the
try
to
that
Security
Suriname
with
administration.
Committee
'State
in
compatibility
of
39
.
situation
the
of
previous
the
'Sharia
636
such
be
certainly
(Tomuschat
on
to
to
to
Ukrainian
SSR) .
39
40
41
42
See e. g.
See e. g.
SR 283 pr. 22
Declaration
members of
43
information
1 May
of
the HRC.
This
was
1980
(Opsahl
on
Iraq).
on Mali).
(Vincent-Evans
on Jamaica).
in a Government
contained
to
which
was
circulated
(Mr. Tarnopolsky).
SR 224
The
of
pr. 15
replies
in SR 227.
He did
State
are
reply
representative
the
not
but
by
to
the
Mr.
Tarnopolsky
raised
point
specifically
inform
"On
14
1980
the
HRC that,
the
did
June
he
had
jurisdiction
to
council
transferred
the
of
Military
its
judicial
in
authorities
all
persons
the
civilian
2.
Note
the
Ibid.,
Professor
pr.
comments
of
custody",
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10
that
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14
Political
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2
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283-4;
Sieghart,
ICJ
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pp.
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also
459,
8.
recommendation
p.
above,
CH 10
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10.8
These
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together.
45
pr. 8.25
46
Trial
See
clearly
when the
judicial
the
and
lines
prs. 61-64.
(1963).
of
the
the
courts.
14
article
(c)
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bodies.
The
Judiciary.
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6.45
the
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46
be dealt
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appeared
See n. 40 above.
Mbenge
See
fair
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power
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courts
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decision
10.40 below.
SR 537
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And
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Powers
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HRC members
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44
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civilians
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47
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Mr. Opsahl
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SR
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appointment,
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50
51
See e. g.
SR 131 pr. 19
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SR 109 pr. 71
See e. g.
on USSR).
The
Ombudsman's
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The
Procuracy
C. T. Reid,
[1986]
States,
P. L. pp. 311-326.
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See e. g.
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56
57
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on Spain).
54
55
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on Bulgaria).
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53
or
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SR 32 pr. 37 (Tomuschat
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44, parts.
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66
See e. g.
SR 89 pr. 40
67
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on Ukrainian
SR 154 pr. 26
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SSR).
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at SR 68
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for
its
In
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and
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73
occasionally
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Similarly,
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71
72
73
G. C. 13/21,
n. 3 above,
governing
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SR
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impartiality
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Comment
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powers
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71
impartiality.
discretionary
extensive
implications
642
422
by
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pr. 37.
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"Whilst
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EUCT,
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appearances
(1982),
30-31.
53
Campbell
See also
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vol.
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(1984);
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EUCT,
80
Sramek
K.,
A,
U.
vol.
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84
(1984);
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vol.
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CH 10
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The
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much to be desired".
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Mr. Opsahl
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judicial
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States
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actual
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75
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75
CH 10
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78
Compte,
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43
EUCT,
vol.
Belgium,
(1987);
127
A, vol.
Series
May 1988).
79
as
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80
This
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644
Van
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(1981);
EUCT,
H.
Belgium,
v.
(26
Ekbatani
EUCT,
Sweden,
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terms
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example
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59
USSR).
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81
64
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SR
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116
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82
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64
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Covenant.
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State
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86
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87
the frequency
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What restrictions,
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88
hearings.
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have
Members
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court
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(Footnote
Continued)
Czechoslovakia);
SR 258 pr. 61
83
Secrets
it
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84
pr. 27.
85
86
SR 98 pr. 68 (Tomuschat
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on Italy).
on
Yugoslavia);
SR 69 pr. 56 (Hanga),
to the
Official
referring
1920.
Act
The U. K. government
in 1987
announced
to reform
the
Official
Secrets
Acts.
proposes
12th June 1988, p. l.
Sunday Times,
SR 109 pr. 46
The USSR report
SR 65 pr. 26
(Prado-Vallejo).
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at SR 112
is
Doc. CCPR/C/l/Add.
22 (1978).
(Opsahl).
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in
SR 66 pr. 16.
(Bouziri).
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the
pr. 41
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meant
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SR
141
10.
to
Similarly
public
policy",
pr.
contrary
155
(Tomuschat
SR
Justice'
'Socialist
see
pr. 15
SSR).
Ukrainian
SR
135
87
See
e. g.
Cf. A. 11552/85,11553/85
restrictions
reporting
1981.
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of
State
"acts
on
on
State
representative
to
gather
accurate
SR
such proceedings,
(on
Doc. A/39/40
GDR).
pr. 509
11658/85
U. K.
and
on
V.
the Contempt
Act
under
of Court
occasionally
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trials.
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646
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for
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89
trial,
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organizations
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under
extent
right
in
experience
State
14(1),
article
the
Uruguay
of
Uruguay
concerning
indicate
the
long
of
sentences
down
handed
report
HRC's
the
of
under
in
obligations
"It
was implicit
the
of
consideration
Mr. Tomuschat
regard
Iu
to
of
rarely,
During
party's
family
accused's
more
and,
whether
asked
(.ri
of
In
that
trial
that
be
should
the
connection,
provided
the
with
text
of
91
decisions
despite
repeated
requests".
any court
14 the HRC stated
in its
comment on article
general
that,
publicity
in
safeguard
1,
paragraph
power
the
large.
at
society
to
reasons
noted
that,
including
89
all
in
out
or
that
apart
be
must
members
open
of
to
the
SR 136 pr. 47
90
same
time,
that
part
press,
of
SR 357 pr.
that,
inter
alia,
without
convicted
be
produced
could
pr. 22.
have
the
public
It
should
the
for
be
exceptional
that
public
in
and
must
(Tarnopolsky
of
14,
article
considers
and
courts
paragraph.
from
such
the
important
an
individual
the
Committee
the
See e. g.
the
acknowledges
circumstances,
hearing
At
exclude
spelt
is
hearings
of
interest
of
"The
general,
for
not,
on Romania).
See
Bulgaria).
SR 154
trials
SR 187
pr. 49
replied,
had been
evidence
SR 373
CH 10
It
persons.
of
in
the
which
judgement
is
noted
is
public
a particular
that,
with
certain
92
the
may be
States
of
State.
Admission
reference
inspired
by
the
packing
the
the
to
particular
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alleged
with
publicity
As
even
not
take
place
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form
of
It
92
93
in
that
persons
note
of
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where
public
to
there
of
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in
order
inter
under,
G. C. 13/21,
See e. g.,
A. 10243/83,
146;
E. H. R. R. 54.
94
reporting
a requirement
remains
HRC stated
accused
the
on
n. 3 above,
to
trial
some
permissible
categories
persons
of
in
practice
paid
some
by
obviously
to
the
the
EUCM
or
in
the
does
a backup
safeguard
94
judgement.
a public
in its
general
comment
article
of
from
is
alia,
the
effective
in
court
proceedings
legitimately
safeguard
it
such
provided
A number of recent
applications
proceedings.
the
have
exclusion
concerned
of
press
restrictions
93
Finally,
U. K.
hearing
public
is
of members of the press
in
bringing
importance
terms
of
bear
deficiencies
to
on possible
particular
the
defined
the
of
courts
trial,
strictly
safeguard".
HRC had
the
assessment
category
in cases
even
from
excluded
The
limitations.
persons
be
as an "important
if
helpful
been
for
criteria
to
,
be made public".
HRC regards
the
that
notable
requirement
have
would
only
should
must
exceptions,
It
limited
be
instance,
647
rights
14(1),
in
the
of
judges
pr. 6.
Harman
A. 10038/82,
v. U. K.,
Newspapers
Times
and Others
7 E. H. R. R.
8
U. K.,
v.
14 of
Covenant
the
that
Note
requires
article
"shall
be
judgement
the
whereas
made public",
that
be
"judgement
6
that
the,
ECHR
requires
shall
article
in
decisions
See
the
EUCT
the
publicly".
of
pronounced
(1983);
EUCT,
Series
71
Axen v.
A,
Italy,
vol.
v.
Pretto
A, vol. 72 (1983);
Albert
and Le Compte
FRG, EUCT, Series
(1983);
Series
A,
EUCT,
58
Sutter
v.
Belgium,
vol.
v.
EUCT, Series
A, vol. 74 (1984);
Campbell
and
Switzerland,
EUCT, Series
A, vol. 80 (1984).
V. U. K.,
Fell
CH 10
have
should
made
of
the
of
violations
95
the
It
95
in
a suit
G. C. 13/21,
consider
these
is
prosecution.
comment does not expressly
in
(1)
14
the
of article
obligations
to
authority
648
at
rights
difficult
during
to
to
extend
determination
law".
n. 3 above,
any
pr. 15.
allegations
any
understand
alleged
of
stage
of
why
the
violations
"rights
and
CH 10
Article
14(2):
10.11
Members
the
is
innocence
presumption
inquired
have
given
given
presumption
to
respect
have
matters
of
has
confined
the burden
of
operation
100
proof.
also
in
restrictions
members
statutory
The
related
been
raised.
innocence.
of
the
97
effect
96
as to how the
in
domestic
effect
for
in
provided
expressly
legislation?
or in other
649
Constitution,
In
and
any
practice,
on
their
presumption
law.
Was
the
Penal
how
event,
for
of
exceptions
issue
of the
101
They have
Code
was
the
example,
with
98
Generally
media?
to
considerations
standard
of
it
the
proof99
to
the
use
of
and
the
burden
of
confessions
to
pointed
basic
apparent
96
10
(2) (a) ICCPR which
Note also
article
provides
"Accused
in
that,
persons
shall,
save
exceptional
be segregated
from convicted
persons
and
circumstances,
be
to
treatment
to
subject
separate
appropriate
shall
its
General
In
their
as unconvicted
persons".
status
10 the HRC noted
the presumption
comment on article
of
in the context
innocence
of the
segregation
of accused
from
G. C. 9(16),
Doc. A/37/40
convicted
ones,
prisoners
8.
96-97,
pr.
p.
97
(Tarnopolsky
64
SR
See
e. g.
pr. 44
on
Czechoslovakia).
98
See
Doc. A/42/40
e. g.
pr. 658
Doc. A/41/40
(on Afghanistan),
pr. 392
reply
(on
at
99
Hungary);
pr. 663.
See e. g.
A/39/40
pr. 151
(on
Guinea).
CH 10
inconsistencies
In
explanation102
its
lack
and
that
of human
protection
terms
or entails
ambiguous
103
ineffective".
to
further
requested
and
650
the
Occasionally
it
presumption
of
the
than
the
during
has
proof.
accused
Canada
proof.
Mr. Opsahl
have
to
considered
penalty
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authorities
presumption
has pointed
under
of
that
publicly
an
he
other
taking
legal
the
considered
avoid
courts
of
than the
other
104
innocence".
to
the
of
an
which
innocence,
of
an
pay
public
action
person
could
accept
person
a
being
to trial;
sent
and
accused
to
the
whether
proceedings;
from
refrain
should
whether
in order
102
of
those
the
of
costs
guilty;
presumption
significance
standard
of
that
burden
the
concerning
be asked
for
It
might
example,
whether
had to
who had been acquitted
person
than
prosecutor
but declare
detention
and
very
it
render
suggested
a wider
report
be
might
provision
implications
Mr. Janca
or
in
that,
commented
"The
the
has
the
which
stated
burden
of
consideration
the
been
the
expressed
conditions
innocence
of
matters
is
rights,
possibility
accused
is
held
the
respected
regime
violating
of
the
(Opsahl
65
SR
on
e. g.
pr. 26
35
18
(Prado-Vallejo)
386
SR
and
pr.
Czechoslovakia);
(Hanga
402
SR
Mexico);
on
pr. 46
(Graefrath
on
(Tomuschat
473
23
SR
reply
pr.
on Sri Lanka),
Australia);
44.
477
SR
pr.
at
103
104
clearly
ECHR.
See
G. C. 13/21,
n. 3 above,
pr. 7.
'
fully
not
in the report
did
"He
provided
that
only
not
would
2,
has
Mr. Tomuschat
the
hostile
was
so
criminal
and
of
Covenant
to
the
as
definition
in
as
government
much
practice
the
of
courts
to be demonstrated
solely
its
to
scope
broader
105
106
107
of
truly
as
of
criminal
violate
article
individual
any
be
liable
to
offences
such
and on the
in
dealing
It
them.
with
framed
that
such broadly
political
the
be
political
information
was
necessary
criminalize
comment
general
interpretation
such
not
measure
14,
suggest
may itself
would
discussing
on
were
association
might
innocence
by
required
needed
provisions
had
article
of
by
sanction
merely
friends.
Much fuller
with
the
to
to
subjected
such
offence
of innocence,
general
subversive
far
seemed
also
persons
be placed
in
with
106
Covenant...,,.
It
they
so,
criminal
issues
needed
In
the
of
but
although
that
gone
presumption
14(2)
"
If
the
of
as
offences
measures,
presumption
vague
10.105
article
contradiction
of
the
of
violation
"The
on
information
the
understand
and
even
terms
the
that
UJl
institutions
in
paragraph
'J
could
labour
corrective
been
sentenced.
be
convicted
persons
investigation
preliminary
labour
corrective
under
Lf
HRC as
article
and
not
dissent".
a
whole
14(2)
intended
107
adopted
than
simply
See n. 96 above.
SR 198 pr. 5
(on Mongolia).
(on
Uruguay).
SR 357
A number
of
pr. 12
the Optional
Protocol
article
decisions
under
concerning
"subversive
to
for
have
prosecutions
19
related
11
below.
475
51
See
SR
ch.
pr.
see
also
activities",
the use of confessions
concerning
(Tomuschat
on Guinea)
(Tomuschat
29
413
the
Austria)
SR
pr.
on
on
and
individual
the
that
arrest
on
of
ground
an
possibility
the
offence.
repeat
might
Lri
far
to
relating
matters
as
Mr. Janca
"By
or
reason
burden
of
the
and
1V
but
proof
did
Mr. Tomuschat.
of
proof
accused
the
of
not
The
had
is
charge
benefit
the
on the
therefore
for
a duty
from prejudging
refrain
This
broad
accordance
approach
to
the
with
all
the
as
this
the
prosecution
the
of
the
until
can be presumed
beyond
doubt.
reasonable
proved
innocence
implies
of
presumption
in
innocence,
of
charge
guilt
treated
go
HRC commented,
presumption
the
expressly
doubt.
has
been
Further,
a
right
the
to
be
It
is
principle.
public
outcome
presumption
authorities
of
of
in
No
a trial".
innocence
to
108
is
the words of
be welcomed
which
as the presumption,
human
fundamental
to
the
HRC "is
protection
the
of
109 is increasingly
under
attack
and the subject
rights",
110
the ECHR.
number of cases under
of a growing
to
108
pp. 179-183.
109
110
62
vol.
(1984);
A, vol.
1987).
(C. A. ).
G. C. 13/21,
n. 3
above,
pr. 7.
Cf.
Fawcett,
Ibid.
Switzerland,
A,
Series
EUCT,
Minelli
See
v.
49
Adolf
Austria,
A, vol.
(1983);
EUCT,
Series
v.
Series
FRG, Nolkenbockoff
FRG, EUCT,
Lutz
v.
v.
(1987);
Salabiaku
(16th
123
July
France,
EUCM,
v.
R. v.
Alladice,
11th
The Times
May 1988
See also
CH
14(3:
Article
10.12
As
have
members
111
of
pre-conditions
in
stated
3
paragraph
is
which
a
its
residual
have
of
to
the
of
prosecution".
Some important
which
been
often
have
been
noted
indicated
112
See
e. g.
G. C. 13/21,
See Fawcett
YBECHR 494 at 548-550.
115
116
Guinea).
State
SR 187 pr. 50
113
114
14(1).
G. C. 13/21,
See pr.
See
10.5
e. g.
n. 3 above,
p. 148;
n. 3 above,
the
HRC
also
of
the
judges
should
of
made
any
as
stage
procedural
legal
14(3),
115
aid
have
system
already
Members
have
the
representatives
with
article
of dealing
116
They have
pointed
basis.
111
article
article
to
such
the
sense
ultimately
during
accused
and
under
under
above
desirability
point
raised
this
allegations
matters
profession
of
rights
14,
article
the
general
legal
the
of
fairness
is
the
of
of
comment
any
HRC
the
observance
the
ensure
112
1".
In
safeguard
consider
exhaustive,
requirements
hearing
3 of
rights
114
the
equality,
to
"full
related,
As
the
general
order
authority
violations
its
paragraph
under
accused
fair
are
not
guarantees,
In
"In
that,
stated
of
"the
to
sufficient
by article
required
concept
113
one.
in
trial.
comment,
"minimum
the
and
criminal
always
as
the
then
though
minimum
are
not
hearing
minimum,
general
14(1),
article
secured
fair
are
paragraphs
the
cases.
whether
14(3)
Clearly
criminal
of
determine
to
being
latter
the
in
sentence
article
of
equality".
first
the
sought
guarantees"
653
guarantees
minimum
with
1C'
14(3)
to
on
a point
apparent
(Tarnopolsky
gaps
by
or
on Poland).
pr. 5.
Nielson
v.
Austria,
EUCM,
pr.. "-5.
above.
SR
475
pr.
31
(Vincent-Evans
on
CH 10
inconsistencies,
654
doubts,
expressed
and
for
asked
further
clarifications.
10.13
14(3)(a)
Article
discussion.
has
have
Members
relevant
possible
law
its
In
attention
than
more
domestic
of
provisions
inadequacies.
little
attracted
done little
the
point
note
to
any
comment
the
HRC
and
general
or
that,
stated
"State
is
respected
(a)
and
those
Committee
all
of
notes
'promptly'
informed
in
given
first
is
the
manner
made by
if
the
course
authority
of
procedural
steps
of
the
of
that
as
to
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information
soon
as
The
the
be
is
charge
In
authority.
prosecution
must
arise
the
when
a court
or
an
decides
to
take
person
him
charges,
the
this
subparagraph
detention.
right
investigation
against
right
in
that
competent
this
criminal
not
requires
described
an
14,
Article
persons
further
how
explain
cases
Committee
opinion
in
the
not
ensured.
to
applies
including
do
often
reports
suspected
of
The specific
such.
3 (a) may be met by
of
requirements
subparagraph
in
the
charge
either
orally
stating
or
writing,
information
indicates
the
both
that
the
provided
117
facts
it
is based".
law and the alleged
on which
or
crime
The
publicly
to
reference
names
the
taking
as
"procedural
of
steps"
suspected
of a crime
a person
as constituting
a
is
important
obviously
as exactly
when a person
charge
118
to determine.
is charged
can be a difficult
question
be difficult
it
in
to determine
However,
may still
what
against
practice
in States
requirement
117
118
Hoof,
a
constitutes
inquisitorial
with
that
the
G. C. 13/21,
See Fawcett
pp. 254-256.
'procedural
systems
information
n. 3 above,
step',
of
given
particularly
The
procedure.
relate
to
both
pr. 8.
pp. 145-147,184;
Van
Dijk
and
Van
CH 10
law
the
jurisprudence
10.14
the
and
under
In
respect
655
facts
alleged
the
ECHR.
of
article
the
parallels
119
14(3)(b)
clarification
and justification
of any
limitations
the
on
preparation
or
specific
120
during
defence.
For
example,
consideration
Mr. Janca commented,
of Poland
report
requested
"The
report
right
to
indicated
counsel
that
by
the
proceedings,
to
accused
in
that,
and
refuse
such
right
of
conformity
3 (b),
of
Similarly
hearings122
and
120
SR 92
pr.
accused
with
the
whether
communication
right
See Fawcett
See
39
e. g.
(Opsahl
spirit
have
secured
asked
at
there
the
123
freedom
the
preparatory
the
authorising
lawyer,
be
could
at
the
attend
it
present
to
person
he
could
limitation
to
seem
article
14,
whether
the
stage
of
was
even
of the
be
in
paragraph
right
to
preliminary
were
circumstances
when
123
A serious
was permissible.
to communicate
in
was indicated
pp. 186-188.
SR 51 pr. 35
on
(Vincent-Evans
FRG).
186
SR
The
pr. 47.
(1979).
2
See
Doc. CCPR/C/4/Add.
Cf.
(Tarnopolsky
R.
on Morocco).
W. L. R. 920.
"-
that
not
of
121
121
122
other
That
did
the
any
cases,
Covenant".
on the
restriction
119
the
members
was
written
exceptional
had
without
another
authorization.
the
communicate
only
designate
to
the
could
to
right
of
and
while
his
with
the
reserve
or
meeting
Prosecutor,
general
the
of
choosing
during
that,
confer
nonetheless
accused
However,
fact
the
own
directly
with
communicate
being
present.
person
limited
the
his
of
him
have
members
See
e. g.
-SR
357 pr. 14
See e. g.
SR 93 pr. 40
on
Libya);
is
Polish
report
327
SR
also
pr. 49
(1988]
2
Samuel,
v.
(Tomuschat
(Tarnopolsky
on Uruguay).
on FRG).
CH 10
the
Romania
of
report
Criminal
656
concerning
person
accused
the
require,
defence
for
counsel
days.
thirty
If
for
extended
Contact
the
court
or
defence
not
the
detention
to
in
communicate
some form of
prosecutions
notwithstanding
in
example,
concerning
prisoners.
helpful,
more
124
125
clear
response
to
the
127
provision
See
prohibited
by
extended
has
with
v.
the
been
this
about
of
be
days.
article
14
the
securing
when
the
State
of
do
33,
reservation
"adequate
HRC's
p. 18
so
by
Uruguay,
reports
for
so,
Australia
facilities"
general
to
comment
was
(1978).
135
SR
(Bouziri)
pr. 43
;
SR 136 pr. 22 (Opsahl).
Reply
at
And Criminal
Evidence
Act 1984,
(Vincent-Evans),
Cf.
Police
60.
pr.
126
See Caldas
127
a
the
Doc. CCPR/C/1/Add.
be
opportunities
of
Fortunately,
may
concern
consideration
some
than
is
accused
126
touched
The
upon.
has not been discussed
"facilities"
the
[sic]
material
with
counsel
isolation
been
of
his
thirty
not
is
HRC members
expressed
its
and doubted
compatibility
provision
125
(3) (b) and (d)
.
has the difficulty
Only
10.14.1,
rarely
right
less
than
may
of
number
prohibit
prohibition
more
counsel
of
once
124
of
order
contacting
not
the
necessary,
period
submitted".
of
an
based,
from
arrest
a period
a period
with
where
under
is
so
by
may,
it
which
counsel.
investigation
the
authority
on
person
accused
an
reasons
defence
contact
of
prosecuting
the
stating
may
interests
the
where
held
its
of
Code,
"An
172
article
pr. 10.35
pr. 59
SR 140
s. 58.
below.
l
Doc. CCPR/C/14/Add.
prs. 256-257
referring
the
decision
United
States
of
Court
Supreme
the
(1977)
97 S. Ct.
1491
Bounds v. Smith
to
in
CH 10
'adequate
is
"What
of
circumstances
include
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which
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as
with
counsel.
have
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of
recourse
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accused
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the
his
choice,
to
their
to
counsel
their
in
clients
accordance
with
able
standards
professional
from
any
quarter".
requirements
of
access
to
with
communication
129
the ECHR.
under
counsel
parallels
Obvious
problems
The
and
privilege
The
reference
interference
by
article
optional
a key
14.
Many
Protocol
lawyers,
in
standards"
though
accordance
that
so
with
lead
legitimately
to
those
the
that
abuses
to
G. C. 13/21,
129
See Fawcett
130
and
the
of
p. 188.
below.
any
undue
and
evidence
jurisprudence
interest
public
themselves.
undue
without
protection
afforded
under
faced
cases.
the
to
referred
defence
be
130
is
it
the
must
representation
"established
professional
by
defence
by
restrictions
n. 3 above,
represent
or
14 have
lawyers.
128
for
without
communications
article
with
established
present
restrictions
in
political
note
to
of
the
of
particularly
interesting
respect
aspect
and
their
representation
concerning
difficulties
the
be
is
this
to
and
documents
privilege
professional
legal
to
to
able
communications.
pressures
128
influences
an
respect
judgement
and
influences,
restrictions,
or
be
full
to
want
communicate
giving
of
be
should
not
should
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as
communicate
Furthermore,
counsel
conditions
case,
a person
request
lawyer.
confidentiality
Lawyers
and
does
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evidence
his
engage
or
must
other
prepare
accused
person
requires
subparagraph
the
to
to
When
association
and
requires
the
on
facilities
the
documents
opportunity
himself
defend
but
case,
to
accused
well
depends
time'
each
access
657
pr. 8.
lawyers
the
State
could
with
CH 10
10.15
have
Members
guaranteed
has
Concern
courts.
lengthy
trial
131
procedures.
of
and
indicate
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asked
detention
pre-trial
statistics
to
"In
in
that
may
delay
ideal,
such
before
in
periods
to
rarely,
give
133
of
trials.
an
interesting
sparsely
problem
(c)
14(3)
to
it
as
these
charges
every
minimum
longer
special
Doc. A/41/40
See
e. g.
(on
79
Poland).
A/42/40
pr.
Doc.
language
is
this
be
would
the
(on
pr. 292
to
made
Although
circumstances
131
be
commencement
effort
...
than
trial
always
and
to
of
areas
before
not
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is
trial
delay
may
hear
to
present
delays
populated
of
court
However,
proceedings.
keep
have
maximum
article
problem
available
difficulties
of
and
a special
arises
immediately
to
regard
and
raised
remote
more
Australia,
which
others
areas,
remote
the
for
representatives
duration
of
the
prosecution
with
more
interpretation
the
Germany
the
drop
average
report
Of
State
the
procedures,
and
and,
normal
Australian
concerning
applied
the
on
The
the
to
whereby
difficulties
132
State
proof.
unduly
accelerated
Republic
charges
domestic
over
over
its
article
its
suggested
a system
certain
investigation
even
of
of
both
and
streamlining
particular
caused
practice
Federal
introducing
by
pursue
been
the
requirement
expressed
One member
of
example,
the
been
from
advisability
the
procedures
representative
might
in
is
(c)
14(3)
how
asked
658
the
delays
Finland);
132
The question
SR 92 pr. 40 (Opsahl
of
on FRG).
during
raised
consideration
of the second
delay
was also
292;
FRG,
the
Doc.
A/41/40
pr.
of
see
report
periodic
in
decision
the
294.
See
the
EUCT
the
of
pr.
at
reply
(1968),
EUCT,
Series
11-15,
A,
7,
FRG,
vol.
pp.
v.
Wemhoff
of
proceedings.
the
simplification
on
133
SR 293
See e. g.
(Vincent-Evans
44
439
pr.
on Austria).
(Tomuschat
pr.
34
on
(Lallah
France);
on
Portugal);
413
SR
pr.
SR
33
Uri
are
not
and
are
requirements
members
to
opportunity
of
States
which
should
a trial
it
should
end
this
make
available
proceed
instance
HRC
ICCPR.
the
guarantee
HRC does
from
this
the
will
the
relates
take
must
be inconsistent
134
paragraph".
to
views
the
mind
"This
stages
runs
their
take
a matter
on
golden
of
HRC stated
that,
to
only
but
commence,
and judgement
some
spread
geographical
wide
135
not
the
by
time
by
the time
also
be rendered;
all
delay'.
To
undue
'without
place
'undue'
or
to
not
failed
HRC
comment
general
which
The
to
parties
its
In
in
bearing
importance
unreasonable
this
of
the
of
indicate
Again
b59
therefore
considered
the
with
be
to
considered
IU
be
a procedure
right
effective,
must
in
that
the
trial
to ensure
order
will
both
in
'without
delay',
first
undue
136
and on appeal"
.
it
begins.
If
not indicate
when the period
point
be
the
of
the
when
then
charge
the
or
court
to
according
the
prosecution
the
against
suspected
authorities
137
for
him
As
the end
names
as
such.
or
publicly
person
be
to
this
clearly
seem
at
the
period
would
relevant
of
138
It
that
not
appears
appeal.
the end of any possible
but
delay'
be
'without
the
undue
period
whole
must
only
take
that
each
procedural
individual
stage
134
steps
Doc. CCPR/C/14/Add.
See
(1987).
2,
78
CCPR/C/42/Add.
p.
Doc.
135
to
See the Introduction
136
G. C. 13/21,
137
138
n. 3 above,
So too under
7,
A,
Series
vol.
EUCT,
Hoof,
Van
Dijk
and
Van
take
must
this
place
pr. 263
'without
(1981)
and
thesis.
pr. 10.
above.
the ECHR, see the Wemhoff
v. FRG,
Fawcett
pr. 18 (1968);
pp. 164-170;
pp. 256-257.
CH 10
delay'.
undue
the
under
10.16
and
this
14(3)(d)
Article
attention
role
ECHR.
If
so
139
660
again
follows
has
attracted
the
have
members
and various
stressed
140
importance.
have
Members
asked
practice
consistent
its
vital
for
details
or procedures
excluding
or restricting
a
of any rules
141
have been raised
defendants
Doubts
at trial.
presence
in absentia
before
tribunals
trials
military
and
about
142
in absentia.
One member has taken
the
view
appeals
in his
to be tried
the right
that
presence
also
applies
143
to juveniles.
right
A number
to legal
of
matters
assistance.
have been
144
Were
raised
there
restrictions
145
assistance?
on the choice
of legal
146
lawyer
be
foreign
Could
chosen?
a
if
be
so,
and,
on
what
rejected
limitations
139
Milasi
v.
140
offences,
See also
below.
141
84 pr. 28
For
Italy,
recent
examples
EUCT,
Series
see
A, vol.
or
Could
the
chosen
person
147
What
grounds?
Baggetti
v.
119
(1987).
Italy,
in
the
Particularly
so
case
of
serious.
see e. g. SR 271 pr. 29 (Tarnopolsky
on Kenya).
in
decision
Mbenge
the
Zaire,
v.
pr. 10.40
See e. g. SR 93 pr. 40 (Tarnopolsky
(Vincent-Evans
on Madagascar).
142
SR
See e. g.
SR 78 pr. 14 (Tomuschat
below;
Case,
pr. 10.40
(1985)
89
vol.
. _.
143
the
concerning
SR 222 pr. 53
144
See
Czechoslovakia).
e. g.
on
FRG);
SR
357 pr. 16
(Tomuschat
on Uruguay);
See also
the
Mbenge
on Norway).
Colozza
Series
Italy,
EUCT,
A,
v.
(Koulishev
SR
64
on Colombia).
pr. 20
(Esperson
145
on
See e. g.
SR 250 pr. 35
(Tomuschat
on Denmark).
%-n
remedies
for
existed
contact
149
had
commenced,
hearing?
preliminary
during
of
0DI
denial
of
consideration
by many members,
taken
that
information
"Further
on the
by legal
counsel
assistance
fact
the
presupposed
reports,
some
they
placed
were
required
for
Covenant?
".
by
convicted.
under
149
the
the
defendant
lawyers
but
to
organized
as
if
liable
to
the
under
bore
who
legal
the
of
services
rights
to
and
obstacle
the
their
desirability
was
assistance
According
serious
as
for
The
instructions
with
State
the
the
when
even
152
have
Others
suggested
which
148
paying
stressed
of
such
independent
persons
defence
of
of
welcome.
the
were
case,
instructions
the
be
inquired
for
responsibility
members have
met
the
151
have
Members
that
would
accused
providing
be
would
of
under
that
Government,
it
Was
aspect
accused
persons.
in Guinea
were
If
officials.
public
institutional
Government
to
only
lawyers
responsible
access?
spoke
existence
under
acting
not
Covenant
the
that
148
before
a legal
assistant
proceedings
for
in
example,
respect
of
a
150
The
Mr. Tomuschat
approach
of
is typical
of the report
of Guinea
to
possible
LV
the
Some
assistance.
of the
defendant
that
for
cost
has
a
costs
being
been
practice
would
See e. g.
SR 69 pr. 36
(Tarnopolsky
on U. K. ).
See e. g.
SR 31 pr. 42
(Tarnopolsky
on Ecuador).
be
150
SR
CCPR/C/6/
152
See
475
Add. 5
e. g.
pr. 50.
(1980).
SR 92
pr.
The
41
(Opsahl
Guinean
on
report
FRG).
is
CH 10
inconsistent
to
declaration
legal
Australia
that
note
made
the
regarding
the
aid with
In its
general
153
14(3)(d).
article
with
662
interesting
interpretative
an
consistency
in article
obligation
in
It
of
means-tested
154
14(3)(d).
that,
comment the HRC stated
have dealt
Not all
reports
with
all
aspects
of the
in subparagraph
3(d).
as defined
of defence
right
has
The Committee
not
always
received
sufficient
information
the
of
of
any
assures
system
in person
or
himself
his
own choosing,
does not
a person
legal
assistance.
have
the
pursuing
challenge
it
to be
observance
Again
all
the
of
act
nor
how the
either
by
assisted
of
key
to
role
of
for
pay
must
in
to
right
believe
they
justified
held,
defence
the
of
if
the
for
are*
absentia
counsel
are made
fearlessly
and
if
case
exceptionally
defend
lawyer
and
the
of
his
or
the
to
right
defences
the
article
right
him
against
accused
diligently
the rights
155
HRC stresses
implementation
The
in
of
of the
during
or what arrangements
have sufficient
means
When
unfair.
present
be
to
conduct
necessary".
the
charge
his
available
trials
reasons
more
to
right
protection
be
to
accused
determination
legal
the
concerning
strict
is
lawyers
all
in
the
the
14.156
153
For
See e. g. SR 92 pr. 54 (Graefrath
on FRG).
its
law
the
the
FRG
of
of
provisions
see
the applicable
(1977).
18
19
CCPR/C/1/Add.
Shortly
Doc.
after
p.
report,
initial
the
of
report
of the FRG the
the consideration
in the FRG violated
the applicable
practice
EUCT found
(3)(e)
6
Luedicke,
Koc
ECHR,
Belkacem
v.
see
and
article
A, vol. 29 (1978).
FRG, EUCT, Series
154
Status
of
155
156
pr. 10.14.1
Subsequently
International
G. C. 13/21,
See
also
above.
withdrawn,
Instruments,
n. 3 above,
G. C. 13(21),
pr.
Human Rights
see
(1987).
pp. 86-87
11.
ibid.,
pr. 8
cited
in
CH 10
10.17
for
With
to
regard
information
the
members
inadequacies.
have
159
the
of
report
"The
State
For
Uruguay
to
expending
the
provided
be
to
in
stages
in
all
right
primarily
in
the
accused
had
little
the
were
opportunity
gathered
evidence
It has been asked
on written
in
evidence
investigation
in
evidence
Romania);
158
to
given
the
See
e. g.
SR
29
taken
the
the
seriously
limited
to
challenge
prosecution".
pr.
enforcing
when
159A
rely
to see how
14(3) (e) or
could
article
comply
with
hearing
requirement
440
evidence.
influencing
accused
SR 135
See
pr. 59
e. g.
SR 440 pr. 29 (Herdocia-Ortega
as
176 of the
article
(CCPR/C/1/
Add. 57,
they
the
the
of
was
the authorities
whether
160
is difficult
It
alone.
could
such a situation
fair
the general
indeed
161
14(1).
157
that
(e)
of
in
difficulties
since
of
broadly,
taking
opportunity
by
consideration
the
preliminary
dangerous
or
commented,
14(3)
article
The provisions
of
proceedings.
Penal
Procedure
Code of Military
p. 5)
rejecting,
of
interpreted
considerable
in
Uruguay
were
for
during
Mr. Tomuschat
asked
defence
the
158
Again
expenses.
inconsistencies
or
to
example,
have
members
grounds
on behalf
their
met
pointed
guarantee
had
Covenant
There
the
witnesses
the
whether
and
14(3)(e)
article
concerning
restricting157
663
in
article
(Vincent-Evans
on France).
(Herdocia-Ortega
on
on
France).
159
SR 387
pr. 62.
159A.
160
(Esperson
SR 89 pr. 40
See e. g.
in
decision
Sutter
Switzerland,
the
v.
also
74 (1984).
A, vol.
161
Fawcett
A. 768/60
Recueil,
See
Pfunders
pp. 196-7;
v.
on
See
Iran).
Series
EUCT,
i,
(1962),
cited
Austria,
A. 788/60,6
Continued)
(Footnote
by
CH 10
its
In
14(3)
same
(e)
comment
general
"designed
to
was,
legal
witnesses
and
witnesses
is
There
as
to
of
powers
of
be confronted
the
or
witnesses
the
may be
hearsay
the
accused
attendance
of
any
162
prosecution".
a witness,
any
right
restrictions
on calling
different
of
classes
of
163
evidence.
14(3)(f)
members have laid
article
on the importance
of the assistance
164
"free".
being
Members have stated
is obliged
to pay that
a defendant
165
Covenant.
For example,
the
to
practice
the
of
that
is
an
if
contrary
Hungarian
report
that,
stated
on interpreter's
expenses
by the prosecuting
advanced
"The
charged
guilty".
as
166
cost
to
service
authority
defendant
the
YBECHR 490.
EHRR 145.
See
also
A. 11454/85
v.
Netherlands,
162
G. C. 13/21,
n. 3 above,
pr. 12.
92 (1985);
Series
A, vol.
EUCT,
(1980);
37
A,
Goddi
Series
vol.
(1984);
76
A,
A. 11170/84,
vol.
(14 July
decn.,
1987).
admiss.
163
164
and
be
shall
if
found
EUCM,
10
Cf.
Bonfisch
v.
Artico
Italy,
v.
EUCT,
Italy,
v.
B.
Austria,
v.
decisions
See the
the
of
FRG,
Koc
Series
v.
and
Belkacem
ibid.,
FRG,
Ozturk
40-42;
v.
vol.
prs.
165
be
shall
Continued)
(Footnote
Austria,
EUCT,
Series
EUCM,
the
article
cross-examining
to
admittance
for
example,
evidence,
to
10.18 With respect
stress
great
interpreter
or
witnesses,
that
the
compelling
on who
with
to
guarantee
available
comment
no
HRC stated
the
examining
are
664
EUCT in
Luedicke,
(1978)
A,
vol. 23
73 (1984).
SR 186
See e. g. SR 92 pr. 41 (Opsahl
on FRG);
(Opsahl
SR
(Tomuschat
Poland);
320
20
37
on
on
pr.
pr.
Icelandic
See also
the
State
at
Japan).
representative
SR 251 pr. 10.
166
11, P. 5 (1977).
Doc. CCPR/C/1/Add.
CH 10
Mr.
Opsahl
167
position.
not
its
In
is
right
and
the
cover
reply
to
aliens
language
in
by
used
more
in
embodied
to
as
in
inquired
as
this
of
violation
in
14(3)(g)
to
the
right.
is
It
ignorance
to
"This
proceedings
nationals.
which
themselves
satisfy
Constitution,
penal
the
the
of
obstacle
article
did
that,
stated
difficulty
or
major
to
than
and
practice
for
a
court
respect
little
well
the
still
representative
outcome
cases
constitute
169
defence".
may
With
as
HRC
the
the
of
was
State
the
168
comment
importance
10.19
point.
independent
applies
basic
of
specific
general
this
whether
questioned
The
665
of
the
of
understanding
the
right
have
members
that
this
code
of
done
is
right
or
criminal
existence
of
a remedy
170
has
Mr. Dimitrijevic
based
the question
of convictions
on confessions
raised
and the possible
to
relevance
of violations
of the right
17.
in
He,
article
privacy
"Wondered
conviction
means
be
and
whether
its
relevance
167
168
169
170
187
SR
Receuil
171
171
methods)".
comment
general
of
evidence
constituted
which
(surveillance
In
were any
based
solely
could
confessions
by
there
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other
the
provisions
on
could
the
appointed
which
basis
the
a violation
HRC
of
in
cases
be
of
of
obtained
privacy
to
the
Covenant,
SR 228 pr. 4.
Ibid.,
pr. 18.
G. C. 13/21,
n. 3 above,
pr. 13.
(Tarnopoisky
SR 142 pr. 13
See e. g.
(Tomuschat
Poland).
See
on
pr. 26
in Fawcett,
i,
p. 197.
cited
SR 441
in
this
area
Communications
v. U. K.,
Malone
on Spain)
A. 1083/61,
For limited
pr. 13 (on France).
provision
in
U. K.
the
the
Interception
of
see
1985
Act
decision
to
the
enacted
meet
EUCT, Series
A, vol. 82 (1984).
V11
"In
article
to
testify
or
In
000
the
safeguard
considering
7 and
article
in mind.
borne
confess
10,
order
paragraph
practice
articles
which
1,
the
compel
himself
against
to
these
violate
provisions
of
should
be
accused
frequently
to
provisions
are
used.
by
that
provided
evidence
require
should
form
of
any
other
of
such
methods
or
means
172
is wholly
unacceptable".
compulsion
the HRC's
invocation
with
accords
of other
articles
methods
The law
This
this
a. .l
of
raising
questions
7 and 10 during
the reporting
of
172
G. C. 13/21,
173
See ch. 9,
n. 3 above,
pr. 9.6
above.
pr. 14.
confessions
procedure.
under
173
CH 10
(4):
14
Article
10.20
In
and
the
In
and
175
no
its
limited
varied
concerning.
at
age
still
existence
of
governing
account
to
in
same
The
some
circumstances
concern
10(2)(b)
maximum
to be
courts
procedures
and
article
of
the
subject
176
parties.
that,
sufficient
this
extra
age
a
which
at
a
juvenile,
the
the
procedures,
juveniles
and how
for
juveniles
take
and
against
arrangements
desirability
Juveniles
under
adults
last
sentence
174
the
guarantees
the
such relevant
matters
as the
a juvenile
may be charged
with
special
rehabilitation'.
the
States
of
HRC stated
have
furnished
considered
special
'the
of
article
rehabilitation
is perhaps
the
offence,
criminal
is
person
a
these
which
social
consideration
importance
of
practice
reports
of
example,
institutions
specialized
of
obvious
comment
general
minimum
all
The
doubt
"Not
laws
kind
the
many
information
for
any
the
given
surprising
of
of
in
engaged
themselves
to
confined
information
the
provided
concerning,
nature
and
taken.
measures
details
reports
composition
in
operation
Juveniles.
largely
further
requesting
in
State
174
have
members
discussion
or
comment
have
They
For
terms
general
little
relatively
14(4).
Procedure
667
of
are
protection
177
14".
comment
safeguards
their
promoting
to
enjoy
as
are
at
accorded
suggest
might
and
least
that
procedures
Other
of the ICCPR that
provisions
specifically
juveniles
6(5),
or
children
are
articles
18(4),
14 (1)
23M
24.
and
and (3),
,
175
176
Children
Prisons:
K. Tomasevski,
In Adult
(1986).
Perspective
On
U. K.
the
International
juveniles
the
Police
Criminal
under
and
affecting
[1986]
O'Driscoll,
J.
JSWL pp. 32-41,65-76.
1984
see
Act
177
G. C. 13/21,
n. 3 above,
pr. 16.
Cf.
An
law
Law
UH lu
for
14(4).
juveniles
will
be
necessary
668
to
comply
with
article
CH 10
14(5):
Article
10.21
have
HRC members
or
179
imposed,
information
further
sought
States
of
the
on
for
parties,
the
to
whether
review
was limited
facts
the
the
to
sentence
and
extended
body180
the
the
reviewing
of
composition
there
whetter
limitations
on
were
exclusions,
181
They
procedures.
those
inadequacies
apparent
the
During
non-compliance*
on
Court.
the
of
consideration
Revolutionary
exceptions
any
or
focused
was
attention
its
review.
concerning
example,
law
the
and
1`8
procedures
review
or
appeal
of
right
669
the
183
practice
have
182
pointed
report
of
and
State
The
or
to
Iraq
procedure
of
representative
that,
stated
"The
Court,
revolutionary
protect
the
Revolution
in
created
was
not
a truly
1969
to
exceptional
178
in
is
for
the
The
now
provided
right
also
2. Under
the
ECHR
the
ECHR,
to
Protocol
article
Seventh
is
to
Contracting
of
set
up courts
not
compelled
party
a
6
if
it
does
but
then
article
or
cassation
appeal
Case,
Delcourt
the
to
see
proceedings,
such
applies
11,
A, vol.
Series
pr. 25 (1970).
EUCT,
179
See e. g.
pr. 56
Doc. A/40/40
(on
Chile).
180
See e. g SR 356
181
(Vincent-Evans
223
SR
See
pr. 9
e. g.
See
(Dieye
SR 328 pr. 13
on Morocco).
in Monnell
EUCT, vol.
U. K.,
v.
and Morris
Colombia);
decisioll
(1987).
182
pr.
13
(Tarnopolsky
on Uruguay).
on
the
115
SR
See e. g SR 89 pr. 18 (Vincent-Evans
on Iran);
20
355
(Graefrath
Japan);
SR
20
pr.
on
319
pr.
Rica
Costa
The
report
of
(Prado-Vallejo
on Uruguay).
Code
Rican
"Unfortunately
Costa
the
that,
acknowledged
Procedure
against
establishes
some
sentences
Criminal
of
is
is
that
to
which
cases
there
say,
no
appeal,
which
instance.
in
In
this
the
heard
connexion,
sole
are
".
for.
are
called
reforms
legislative
(1979).
46,
11
For some comments
see
CCPR/C/1/Add.
p.
Doc.
(Hanga),
(Prado-Vallejo),
27
236
12
SR
235
pr.
pr.
SR
240
23.
SR
(Janca);
reply
52
at
pr.
pr.
183
45
Iraq's
For
Doc. CCPR/C/1/Add.
report
see
G. C. 13/21,
See also
n. 3 above,
(1979).
pr. 4.
CH 10
court...
however,
the
subject
to
that
practice,
President
the
in
and
sentence,
Republic
recommendations"
.
immediately
Mr. Tomuschat
information
this
between
President
186
appeal.
thus
the
the
to
article
hoped
that
information
situation".
to
pointed
and
and
not
in
except
replied
that,
14,
the
full
of
187
184
185
SR 203
pr.
30.
SR 230
pr.
31.
the
"contradiction"
appeal
way
as
and
made
would
efforts
the
court
of
representative
legislation
Iraqi
and
5,
to
the
and
coverage
paragraph
Iraqi
legal
special
case
by
accused
Committee
the
the
of
the
that
appeared
of
the
review
President
could
provided
the
to
14(5)
the terms
of article
185
The
representative
a
replies
rights
under
186
matter
into
looked
184
citizen
in
served
it
still
of Iraq,
failed
to provide
of
the
Mr. Tomuschat
"despite
Republic
Iraqi
any
who
the
a case
explanation.
an
requested
that
replied
courts,
final
recourse
no
the
which
and
ordinary
were
was
of
such
referred
commission
the
the death
sentence
capital
punishment;
decree.
be ratified
by a presidential
however,
the
condemned
could
person
case of
must in fact
request
there
appeal.
the
In
from
offered
its
findings
Court
in
670
of
convicted
to
persons
Covenant.
the
soon
protection
He
further
obtain
improve
that
187
(Ed. ), n. 1
SR 204 pr. 7. Noor Mohammed in Henkin
'by
higher
"Review
tribunal
according
a
comments,
above,
from
that
the
the
might
law'
review
of
suggests
to
the
that
State.
to
It
from
State
suggests
also
differ
'according
in procedure
law'
both
be
to
and
must
review
by
the
of
an
whim
merely
will
or
not
substance,
importance
155-156.
The
the
right
of
of
p.
official",
by
highlighted
been
in
has
years
recent
review
(Footnote
Continued)
This
Iraq's
of
information,
of
the
the
the
of
that
comment
("infraction",
guarantee
is
offences.
serious
has
information
In
that
the
of
procedures
and
requirements
judgement
before
is
and
review
not
the
of
the
word
tribunals
to
only
in
which
take
show
the
most
not
enough
concerning
the
the
access
tribunals,
to
way
other
"crime"
which
particular
satisfied
criminal
the
connection,
reviewing
be
its
HRC stated
to
provided
in
typical
undermined
drawn
confined
this
of
must
it
"prestuplenie")
been
and
reconsider
14 the
article
of
appeal,
powers
Austria
of
Austria,
of
principle
on
versions
"delito",
process
report
because
5
that,
paragraph
regards
as
"Particular
attention
language
This
explanation
is highly
the
of
14(5)
article
humanitarian
general
consideration
comment
40 process.
article
suggested
to
reservation
important
very
189
law.
its
and
consideration
Vincent-Evans
In
for
request
reply
workings
during
188
to
report.
comment,
During
Sir
periodic
second
information,
further
turned
again
was
question
appeal
account
the
to
what
against
procedures
fair
the
of
Continued)
(Footnote
before
U.
N.
Human
the
Rights
Commission
of
allegations
in
including
States
Iraq,
certain
see
executions
summary
1,28
Special
Rapporteur,
the
Reports
of
ch. 8, notes
above.
188
3.
See Doc. A/42/40
Doc. CCPR/C/37/Add.
prs. 373,
the situation
has not been altered.
that
374. It appears
189
_n
requirements
of
is
helpful
in
of
14(1)
the
to
the
referring
hearing
guarantees
191
proceedings.
14".
article
The
comment
applicability
in article
190
decision
191
ECHR.
b/2
hearing
190
public
and
IU
to
G. C. 13/21,
in Fanali
v.
See
n. 178
fair
appeal
explicitly
and
and
public
review
paragraph
See
n. 3 above,
pr. 17.
Italy,
pr. 10.52 below.
above
on
the
situation
1 of
also
the
under
the
14(6):
192
Article
justice.
10.22
have
Members
compensation
in
domestic
compensation
for
miscarriages
if
law,
at
established,
specifically
or
constitution
details
sought
of
extra-statutory
be
information
the
Penal
of
miscarriages
of
justice
193
how
all?
for
194
Code?
scheme
supplied
for
on
in
the
given
Was
the
effect
right
in
Was there
operation?
cases
to
right
is
example,
specific
of
some
195
of
the
form
Could
the
192
This
9(5)
ICCPR
provision
complements
article
for
to compensation
provides
an enforceable
right
which
detention.
for
is
It
of
unlawful
victims
arrest
or
interesting
to note
9(5)
for
that
article
provides
an
"enforceable
to
right
compensation",
whereas
article
"shall
be
14(6)
that
the
provides
only
sufferer,
This
former
to the
wording
was preferred
compensated".
the majority
because
that
of the HRCion felt
each State
be left
between
to choose
an administrative
or
should
its
judicial
to
remedy
according
own preference,
see
4/SR...
E/CN.
3 of the
See also
at
now article
remarks
for
Protocol
to
the
ECHR which
Seventh
provides
"or
law
the
to the
according
of
practice
compensation
[19831
See G. Ganz,
Public
Law p. 517.
State
concerned".
193
See e. g. SR 111 pr. 25 (Esperson
on Mauritius);
SR 291 pr. 27 (Bouziri
on Jamaica).
194
195
See e. g.
SR 213 pr. 21
(Tarnopolsky
on Senegal).
is interesting
to note
that
Australia
made a
14(6)
be
"may
to
that
article
compensation
reservation
to
than.
by administrative
procedures
rather
pursuant
legal
154
Human
Rights
Status,
provision",
n.
specific
is
28.
The
Australian
"this
that,
p.
report
stated
above,
be
to
a satisfactory
specific
as making
considered
Doc. CCPR/C/14/Add.
1,
legislative
provision",
pr. 302
Despite
its
(1981).
withdrawing
most
of
reservations
has been maintained,
reservation
this
see Australia's
(Footnote
Continued)
It
application
A
compensation
197
compensation?
have
of
members
moral
of
means
the
of
number
United
whether
was in
the
Kingdom
representative
Kingdom
with
conformity
"Although
the
ex
14(6).
article
inter
gratia
198
payment.
that
the
His
practice
and it
Covenant,
to
199
Government
accorded
would
accord
see
The
more
therefore
the
United
closely
one,
to
refuse
considered
spirit
the
of
it
could
with
the
whether
to
as
that,
alia,
with
any
payments
make
also".
of
there
doubts
expressed
system
replied,
Were
the
Home
made
laws?
196
not be
letter
during
the issue
raised
again
consideration
's
U.
K.
Subsequently
the
the
second
periodic
report.
of
domestic
institutional
for
U. K. resisted
calls
reforms,
it
did
though
concede
a number
of important
procedural
200
has now agreed
The U. K. Government
to
the
reforms.
HRC members
Continued)
(Footnote
report
periodic
second
1987).
196
197
at
reply
provision
decision
Moroccon
p. 25.
See
e. g.
Doc. CCPR/C/42/Add.
SR 327
pr.
51
2,
(Tarnopolsky
on
p. 84
(May
Morocco).
(Hanga
SR 482 pr. 12
See e. g.
on New Zealand);
SR 487 pr. 43 (as corrected).
For
an interesting
to be given
to a judgment
publicity
or
on the
innocence
621 of
the
establishing
see Article
2
Code of Criminal
Procedure,
Doc. CCPR/C/10/Add.
198
SR 69 pr. 24 (Graefrath),
pr. 36 (Tarnopolsky),
(Tomuschat)
during
2nd
For
the
92
and
report.
per
pr.
17
(1977),
Doc. CCPR/C/1/Add.
Add. 35
U. K.
see
reports
is
interesting
It
to
New Zealand
that
(1978).
note
"the
14(6)
to
right
reserved
not
apply
article
expressly
it
is not
that
by the existing
satisfied
to the extent
for
to persons
ex gratia
payments
as a
who suffer
system
justice",
Rights
Human
miscarriage
a
of
of
result
n. 154 above,
Status,
199
200
SR 148 pr. 73
See
'Miscarriages
(Mr. Cairncross).
Of
Justice',
Sixth
(Footnote
Report
Continued)
of
L.n
of
establishment
for
compensation
In its
general
"It
is
by
seems
statutory
miscarriages
comment
from
1V
many
of
the
supplement
necessary,
it
into
area to bring
202
02
Covenant"
.
scheme
201
justice.
HRC stated
State
observed
or
legislation.
not
often
domestic
675
cover
this
right
that,
that
reports
insufficiently
guaranteed
States
their
line
to
should,
legislation
with
the
where
in
provisions
this
of
Continued)
(Footnote
Committee,
Session
1980-81,
H. C. 421.
Home Affairs
the
Governments
(1983).
See also
the
For
reply
see Cmnd. 8856
by JUSTICE,
'Home Office
Reviews
two reports
of Criminal
(1968),
'Compensation
Wrongful
For
Convictions'
(1982);
A. T. H.
Smith,
Of
The
Prerogative
Imprisonment'
Of Pardon
The Power
And Criminal
Public
Justice,
Mercy,
p. 398 at pp. 436-9.
Law (1983)
201
202
See the
Criminal
G. C. 13/21,
Justice
n. 3 above,
Bill
pr. 18.
1988
[H. L. ].
14(7):
Article
10.23
in
bis
non
203
idem.
to article
14(7)
have asked
respect
members
it
the domestic
rules
were
whether
compatible
with
and
be given.
examples
practical
of its
whether
effect
could
inconsistencies
have
to
They
pointed
apparent
and
204
details
For example,
of relevant
case law.
requested
that
the power
the view
President
was expressed
of the
or
With
Minister
Prime
court
another
Egypt
of
persons
of
to
order
by
acquitted
retrial
State
before
Security
14(7)
be
to
contrary
article
was
and
should
205
The Netherlands
the question
report
raised
reviewed.
14(7)
international
had
article
whether
of
or
only
Court
domestic
application
206
The
point
received.
to
response
interesting
the
customary
Article
14(7)
number
Sweden.
has
209
14(7)
article
203
204
205
206
207
208
is
not
was
not
text
Commissions
been
and
7,
SR 207 pr. 13
See
Doc. A/38/40
provision
and
in
Rights
Human
when
proposed
4.
article
(Movchan
on Canada).
pr. 299.
Doc. CCPR/C/10/Add.
Italy,
Norway
controversial
See e. g.
V.
of
Aboriginal
and
as the
in
the
surprising
included
Protocol
See A. P.
law
raised
application
Netherlands,
proved
in
subject
of reservations
including
Austria,
Denmark,
Cf. ECHR,
See
the
was
the
Iceland,
This
HRC members
report
States
of
France,
Finland,
conclusive
reply
has
now been
resolved
207
Optional
Protocol.
question
of
both
criminal
under
208
law.
punishment
no
Australian
the
In
by
the
under
communication
but
3.
10.57
pr.
prs.
148,169.
n. 36 above.
209
texts
For the
of these
154
Status,
n.
above.
Rights
-
below.
See
reservations
also
see
ch. 9,
Human
in
Committee.
Third
the
during
210
the
consideration
On
of
number
of
occasions
have
HRC members
reports
these
at
reservations
and suggested
211
be reconsidered.
The HRC as a body
they
that
should
in its
to these
reservations
general
comment,
responded
differing
have
State
"In considering
reports
views
concern
expressed
been
often
expressed
as to
14. Some States
article
of
the
need
procedures
make
for
the
trial
in
bis
by
prohibited
idem
as
retrial
to
reservations
It
is
very
useful
made
reservations
dialogue
States
under
parties
which
may
HRC's
expressed
210
211
212
now
to
the
meaning
for
the
by
States
HRC to
ICCPR
reconsider
and
unnecessary
understanding
G. C. 13/21,
prs.
of
46-63
SR 30 pr. 13
n. 3 above,
circumstances
and
the
of
principle
7.
paragraph
of
in
bis
ne
7".
in
respond
as
and
it
withdraw
in
the
article
212
continues
pr. 19.
to
way
the
encourage
reservations
light
the
of
14(7).
(1959).
(Graefrath
may
their
this
should
ne
This
idem
reconsider
paragraph
parties
40
of
to
14,
article
parties
a resumption
in
parties
appear
See e. g.
to
It
cases.
States
most
to
relation
criminal
between
contained
article
of
exceptional
States
encourage
in
that
pursuant
of
understanding
parties
resumption
distinction
a clear
justified
make
7
of paragraph
have even felt
scope
reservations
Committee
the
to
seems
to
the
on Finland).
678
14
Article
Under
The
breadth
of
Optional
Protocol.
Introduction.
10.24
14
The
under
central
reporting
in the
importance
invocation
is
article
HRC's
of
the
Uruguay.
In
article
The
scope
10.25
14
views
the
parallel
dominant
EUCT
decision
determination
in
article
jurisprudence
on the
discussion
Pension
213
214
the
of
frequent
the
The
vast
concerned
the
HRC has
provisions
of
the
the
of
these
scope
ECHR have
of
and
214
However,
from
the
the
has
O. P.
the
scope
of
"rights
some assistance.
is undoubtedly
Was dismissed
the
of
had
a
EUCM and
the
under
merits
do offer
the
of
charge"
law".
at
suit
decisions
admissibility
The most important
10.26
215
Y. L.
Y. L. v. Canada.
basis
the
of
on
army
application
views
of
6
in.
any
"criminal
obligations
HRC.
14 have
of
more
the
its
213
14.
article
expressions
in the
role
expressions
or
article
to
O. P.
the
under
of
of
by
to
on article
view that
one
14 have been violated.
occasioned
members
number
the
of
of
attested
substantial
Although
no
view
further
of
majority
expressed
considerations
has
testified
process
the
importance
That
HRC's
the
and
three
that
in
Canadian
disorders.
His
alleged
medical
for
by a
a disability
pension
was rejected
held
disability
Commission
that
Y. L. 's
which
See prs.
10.1-10.23
above.
de
"droits
text
French
reads
et obligations
identical
The
French
civil".
expression
charactere
in
6
ECHR.
Until
day
before
ECHR
the
the
article
appears
in
1950
draft
the
two
had
English
texts
used
signed
was
"rights
in a suit
The
terms
and obligations
the
at law".
"civil
then
text
to
was
altered
and
English
rights
it
to
the
to
make
conform
more
closely
obligations"
See
Newman,
Travaux
text.
ECHR
n. 1 above;
French
iv,
6 ECHR
On article
vol.
pp. 1007-1119.
Preparatoires,
20
above.
n.
see
215
The
Doc. A/41/40
p. 145.
CH. 10
arose
neither
his
military
That
(1952).
nor
service,
decision
as
Board
an Entitlement
the
Finally,
author
The
in
14(1)
the
Commission
appeal.
Two
to
was unsuccessful.
Review
Board
the
did
proceedings
by
envisaged
before
proceedings
in
guarantees
State
The
respects.
was inadmissible
the
because
on
Pension
the
the
violated
communication
Act
rulings.
that
of
number
the
earlier
Board
Review
Pension
Pension
An application
rejected.
to
with,
the
confirmed
were
alleged
author
connected
by
required
appealed
the
confirmed
which
of
directly
was
was
applications
subsequent
that
of,
out
679
constitute
not
article
argued
party
ratione
a
the
materiae
"suit
at
14(1).
In
article
addition
domestic
had not
that
State
claimed
remedies
party
decision
because
the
of the Board had not
exhausted
216
before
the Federal
Court
of Appeal.
challenged
law"
as
it
that
decided
and
author
Working
HRC's
The
the
"That
decision
the
whether
instance
last
of
Covenant".
the
it
To
might
which
claim
before
the
law"
at
It
party.
within
217
the
WGC requested
the
assist
questions,
the following
"(a)
Canadian
How does
between
relationship
Canadian
deriving
obligations
217
from
such
Ibid.,
pr. 4.
Ibid.,
pr. 5.
require
the
author
Pension
(WGC)
from
meaning
the
obligations
law?
public
of
as to
in the
pursued
of
Board
article
inter
answers,
rights
finding
Review
domestic
the
been
noted,
a relationship
and
under
information
a member
Are
rights
civil
216
State?
been
Communications
on
further
needed
State
the
"suit
Group
the
classify
the
Army
the
and
the
obligations
considered
or
to
alia,
law
and
was a
14(1)
rights
to
be
and
CH. 10
(b)
different
there
Are
Canada
Does
servants?
statutory
regime
contractual
(c)
there
Is
regime
under
There
labour
to
the
classification
by
the
domestic
With
and
and
Canadian
reference
the
"The...
various
expression
language
every
one
is
the
at
relationship
law"
at
is,
texts
of
law"
or
is
its
based
the
the
on
the
parties
statutory
forum in
or
entities),
individual
which
the
right
especially
upon,
inherent
is
no
Ibid.
Further
in
equivalent
than
rather
(governmental,
question
the
in
in
on
the
common
difference
questions
language
the
of
systems
is
to be
related
in
right
of
one
the
autonomous
the
systems
between
the
a "suit
of
or
on
law
and
53,
texts.
other
of
parastatal
question
each
resolve
concept
status
else
legal
the
language
the
nature
in
article
alone
various
Committee
and
under
do not
in
the
Covenant
the
of
those
of
view
texts
remedies.
219
attached
differently
formulated
texts
discrepancy
apparent
218
was
"suit
expression
authentic.
equally
The travaux
preparatoires
that
jurisprudence
the
of
by
that,
HRC stated
In
domestic
employed
the
regulation
219
law.
employers
persons
importance
some
and
private
from
here
clearly
to
by
civil
between
law)
public
law)?
civil
in
Canadian
contract,
218
ECHR and
the
of
categories
a distinction
employed
echoes
strong
are
under
persons
Government?
the
(under
distinction,
between
law,
make
(under
680
particular
may provide
adjudicated
there
where
public
to
and
domestic
the
decisions
the ECHR have taken
Recent
under
law aspects
the
public
and
examining
private
of
approach
See
Feldbrugge
the
and
situation.
particular
a
of
20
n.
above.
cases,
Deumeland
law
private
and
the
over
control
instance
or
or
statute
on
the
facts
the
basic
would
appear
in
provisions
the
author
26.1
.
jurisprudence
the
law".
They
the
appear
222
14".
that
the
seem,
forum
to
in
220
221
Meyere
(1981).
222
this
Ibid.,
prs.
the
interesting
did
however,
to
are
opinion
forum
neither
that
note
criteria
which
a
the
nature
the
would
which
of
scope
was
"suit
and
criteria
based
the
three
in
that
accept
of
as
constitute
is
the
"nature
opinion
the
conjunctively
the
221
to
situation".
concerned
"two
the
contain
ensure
the
to
not
"it
echoes
individual
an
on
met.
article
the
view
Firstly,
9.1-9.3.
Cf.
Ibid.,
pr. 9.5.
EUCT,
Belgium,
v.
Doc. A/41/40
in
any
view,
does
adjudication
individual
case
to
obligation
determine
Their
Act
stressing
dispute
or
right
adjudication
is
It
that
argued
in
ECHR
HRC's
the
decision
HRC's
of
system
hearing
HRC added
the
of
Court
Y. L. 's
possibility
legal
particular
factors.
members
of
the
or
dominant
at
the
of
right"
they
the
Again
the
finally
that
concluded
in
because
a fair
to
right
this
in
examined
a pension
the
reveal
not
Federal
the
for
HRC
the
Canadian
the
that
In
review.
the
claim
case
Covenant"
the
of
his
"do
allegations
breach
10
the
of
by
to a fair
right
for
by
claim
a pension
be looked
irrespective
at globally,
had to take
the author
steps
which
have
220
to
order
exercise
first
at
provided
be
must
features.
particular
adjudicated".
On
specifically
of judicial
communication
must
author
the different
of
in
normally
either
present
communication,
in relation
to the
hearing
the
courts
proceedings
appeal
by way
else
each
regard,
light
of its
In
the
where
p. 150.
Le Compte,
Series
A,
CH. 10
in
because
had
Crown
the
from
essentially
the
Secondly,
Pension
latter
contract
Review
facts
the
of
the
in
opinion
the
case
to be that
appears
judicial
supervision
determination
the
an administrative
branch
of
certificate
the
to
exceptional
that
inter
grounds,
the
-excluded
exceptional
in a suit
the
view
223
President
On
one.
in
HRC's
the
was of
223
14
article
a kind
procedure
at law by
had
for
possibility
of
a
the
who
their
tribunal.
an
C. A.
various
legislation
relevant
those
having
judicial
under
recourse
procedure.
been
violated
on
that
alia,
Republic
the
of
(administrative)
alleged
a court.
14 a much
6 ECHR. It
article
the better
claim
the
and control.
to challenge
C. A. had sought
v. Italy224
him
to
teach
to
under
a
authority
given
to
issued
by an education
C.
A.
chose
office.
limited
appeal
of
article
to
subject
10.27
In C. A.
the
law.
Canadian
factor
critical
and
differing
quality
have given
would
has been given
to
argument
scope than
narrower
the majority
is submitted
the
was
executive
lacking
Canada,
under
Board
the
a soldier
features
specific
within
in
Government
between
relationship
many
a labour
functioning
body
The
the
Canada
682
chose
use the
determined
to
rights
The
HRC took
that,
important
decision
the
of the EUCM in the
(1981)
the
21
D. & R.
p. 5,
concerning
Kaplan
"An
decisions,
6
to
executive
article
of
application
it
6(1)
was held
which
interpretation
under
of article
of every
right
on the merits
of appeal
a full
to provide
decision
would
rights
affecting
private
administrative
lead
to a result
with
which
was inconsistent
therefore
long-standing,
in
legal
most
and
position
the existing,
did,
32.
6
States",
Article
Contracting
the
p.
of
judicial
to
of
a
right
review
however,
guarantee
before
body
its
decisions
a
with
complying
executive
decisions
the
Recent
of the EUCT have concerned
terms.
the
to
necessary
supervision
degree
with
of
comply
6,
EUCT,
W.
U.
K.,
article
see
of
e.
g.,
v.
requirements
(1987).
A, vol. 121, prs. 80-83,
Series
224
See
Case,
Doc. A/38/40
p. 237.
683
"According
to
the
to
him
to
open
author's
pursue
domestic
before
proceedings
himself
to avail
chose
the
circumstances,
have been deprived
article
determination
(1)
14
the
of
"rights..
of
with
two
mutually
of
requirements
the
chooses
of
article
14(1).
article
C. A.
by
tainted
all
submitted
constraint
having
Ibid.,
of
held
HRC
applicable
225
is
nature
exclusionary
the
Thus
his
waived
It
guarantee.
for
to
to
party
determine
a dispute
well
and
the
the
he
recourse
the
thereafter
cannot
the
whether
the
article
present
by
guaranteed
remedy
14(1)
article
not
be
of
a bar.
the
226
must
waiver
ignorance
communication
the
victim
alleged
administrative
to
an
provides
satisfy
rights
right
of
made by
impartial
exclusive
may
that
law"
at
his
although
the remedies
may not
the
to
claim
and
a State
which
14,
By electing
effectively
"without
a suit
alternative
procedure,
have been deprived
of the
to
claim
in
if
one
these
under
guaranteed
have
Covenant
the
to
that
procedures,
of
right
suggests
victim
alleged
of
he
way
In
validly
independent
competent,
225
tribunal".
decision
Republic.
cannot
the
of
means
by
procedure
the
of
author
a
The
the
was
Instead,
courts.
of
President
the
to
appeal
it
own submission,
his
by
case
be
inadmissible,
14(1)
nature".
is at
227
pr. 12.
226
ECHR
the
De
Weer
On
waiver
under
v.
see
(1980);
35,
Series
A,
H. v.
Belgium,
EUCT,
vol.
Belgium,
127,
(1987);
A,
Colozza
Series
vol.
pr. 54,
v.
EUCT,
A. 1197/61,5
YBECHR
On
above;
n. 142
Italy,
p. 88.
domestic
Canada,
Y. L.
ignorance
remedies
of
see
v
individual
including
the
10.26,
thereto,
opinion
pr.
above.
pr. 10.26.1
227
Doc. A/38/40
p. 237,
pr. 6.
CH. 10
10.28
the
Canada228
v.
inter
claimed,
hearing
and
fair
a deportation
his
release
the
case
order
from
prison.
not
involve
did
but
charge
involve
Pinkey
States,
United
denied
to
in
Finally,
is
there
no
684
to
The
in
come
into
effect
State
indication
had
case
party
determination
the
he
his
of
was
v. citizen
that
alia,
review
which
229
P,
regard
argued
on
that
of
a criminal
it
whether
could
to
as
of
been
determination
in
of rights
or obligations
230
The allegations
deportation
at law.
concerning
suit
inadmissible
held
on the
were
ground
of
non-exhaustion
231
remedies.
of domestic
the
independent
Competent,
Hearing;
Fair
and
impartial
tribunal.
In
10.29
both
the
general
"fair
containing
vital
it
that
concerned
229
S. D.
evidence.
found
not
material
Doc. A/37/40
p. 12,
evidence
4 that
the
function
p. 101;
prs.
of
Pinkey
an allegedly
defence
in chapter
We noted
is not its
it
that
228
In
under
S. D.
there
have
violation
of
O. P.
allegations
guarantee.
had
the
under
specific
hearing"
that
allegation
communications
and
mainly
argument
view
many
Canada
v.
any
had
HRC expressed
the
for
support
been withheld.
P's
233
HRC has
the
PIS
briefcase
missing
The
232
taken
O. P.
to
the
provide
view
a
p. 12.
12-13.
230
Ibid.,
Cf.
2992/66,
A. 2991
Alam,
pr. 14.
and
Singh
10 YBECHR (1967)
U. K.,
v.
Khan
and
p. 478
at
decisions
For
EUCM
that
decisions
500-504.
recent
on
pp.
deportation
do
involve
the
and
not
normally
expulsion
determination
of
civil
rights
and
obligations
see
Uppal
Others
U. K.,
3 EHRR 319;
and
A. 8244/78,
v.
9 EHRR 512.
Lukka v. U. K.,
A. 12122/86,
231
232
233
Ibid.,
S. D.
prs.
12-16.
p. 12.
Doc. A/37/40
p. 101
pr.
21.
CH. 10
judicial
of
Conteris
In
because
lack
the
with
of,
violations
(g).
The
and
violation
General
in
hearing
se,
Cariboni
as
allegations
the
operation
founded
of
ch. 4,
function
On the
of
prs. 4.44-4.45
above.
235
236
at
Doc. A/40/40
Ibid.,
pr.
the
(b)
(c)
also
(d)
and
which
that
first
C's
instance
236
records.
absence
fair
the
using
237
of
fair
a
have
tribunals
violations.
HRC found
Uruguay238
the
v.
14 (1)
basis
that
on the
hearing,
and public
without
234
be
the
14
article
were
court
concept.
military
Along
perhaps
at
the
simply
of
hearing.
violation
was
into
a residual
14(1)
14(3)
court
may
article
there
finding
entered
HRC
public
additional
military
not
the
and
the
expressed
of
article
14(1)
the
HRC
hearing
seeming
to
Alternatively
article
fair
alia,
the
decisions
the
of
violation
fair
no
inter
statements
hearing
been
only
ignored
235
a
public
article
were
been
of
the
grounded
per
had
had
there
review
Uruguay
v.
there
that
view
judicial
234
or
authorities.
national
own
from
appeal
685
not,
in
However,
a
C had
undue
HRC under
violation
been denied
delay,
the
by
O. P:
of
a
an
see
p. 196.
9.
Cf.
A. 911/60,
EUCM,
4 YBECHR
p. 198
p. 222.
237
Mpandanjilla
Others
Zaire,
and
V.
held
in public;
the
trial
Doc. A/41/40
p. 121,
was not
no
in
two
the
served
were
on
of
accused;
and
summonses
heard
the
accused
three
were
not
cases
at the
pre-trial
inter
HRC
The
the
that
expressed
view,
alia,
stage.
14(1)
because
denied
they
was violated
were
a
article
hearing.
The position
fair
the
and public
adopted
under
definition
that
for
ECHR is
no abstract
of
criteria
a
be given
hearing
in
individual
that
fair
can
and
each
the
the
has to be
of
proceedings
course
as a whole
case
Nielsen
the
Case,
A. 343/57,
see
IV
YBECHR
assessed,
(1961)
p. 494 at pp. 548-550.
238
be
will
(A/43/40).
In
Doc. C/31/D/159/1983
in
the
published
(27 Oct
1987).
This
view
HRC's
1988
Report
Annual
L. n.
independent
impartial
and
raising
matter
impartiality
of
the
although
the
question
the
military
courts
'Public
hearing'
10.30
It
is
these
pattern
consistent
trials,
closed
the
allowed
judgement
the
been
right
charged
In
public
with
offences
State
241
of
these
two
alleged
violations
of
the
operation
of
242
They
with
or
a
and
article
a
14:
neither
the
relatives
close
failure
to
243
Uruguay
v.
and
conspiracy
during
the
to
allowed
was
reveal
of
writing
if
any,
Touron
hearings
were no public
instance.
T
first
was not
at
himself.
The judgement
defend
There
14.240
violations
counsel,
to be present,
special
consider
the
Uruguay.
strong
or
article
concerned
alleged
in
conducted
year
sentence
imprisonment.
military
to
of
that
perhaps
HRC expressed
judgement'.
of
his
victim,
alleged
on
nine
years'
of
Most
in
the
'Public
tribunals
military
that
have
was
fifteen
to
convenient
requirements
specific
only
independence
and
tribunal
comment
together.
requirements
The
the
of
operation
and
239
requested
prosecutor
the
about
in its
general
bbb
tribunal.
he was in fact
sentenced
noted
already
*We have
concern
Lu
not
make
T had
subversion.
whole
procedure
be present
or
to
The
made public.
to the HRC,
submission
made the following
do
hearings
be
that
not
"It
public
explained
must
trial
The
legal
the
Uruguayan
order.
under
exist
party
239
Ibid.,
pr. 10.
240
tribunals
Series
Series
For
See pr. 10.7
above.
Engel
Others
and
see
(1976);
22
Sutter
A,
vol.
A, vol. 74 (1984).
241
Cf. The
94 above.
78 and
242
P. 196;
Pietraroia
243
decisions
under
Conteris
See
e. g.
v.
Uruguay,
Weinberger
V.
Doc. A/36/40
v. Uruguay,
Doc. A/36/40
p. 120.
ECHR cases
on
Netherlands,
v.
Switzerland,
v.
the
ECHR cited
military
EUCT,
EUCT,
in
notes
Uruguay,
Doc. A/40/40
Doc. A/36/40
p. 114;
p. 153.
is
in
conducted
to
opportunity
by
means
and
244
judge".
HRC did
The
express
formal
of
to
14
The
hearing.
that
assume
hearing.
public
institutionalized
operation
this
members
open
their
respect
happened.
O. P.
can
article
Touron246
"The
with
include
statement
the
article
state
this
inform
party
way
and
procedure.
case
the
State
the
the
a
an
the
HRC were
to
this
If
the
O. P.
under
views
245
it
would
still
institutional
questions
of
during
Committee's
article
If
such
40
suggests
in
14
order.
raise
In
to
amount
expression
of
inappropriate
this
the
of
not
to
seems
legal
to
them
violations
could
party
submission
of
Uruguayan
they
thought
to
the
so,
submission
alia,
article
had
public
no
state
does
writing
violation
view
in
effect
If
the
of
in
trial
the
of
submission
counsel
before
the
this
inter
the
his
through
refer
has
accused
statements
specifically
not
the
and
himself
the view
that,
expressed
simply
because
been
had
(1)
violated
but
of
writing
40
indeed
process
in
this
has
concerned
and
the
HRC's
experience
under
the
guide
its
approaches
under
the
In
its
final
HRC commented
has
party
request
'of
texts
reporting
be
that
any
views
on
the
to
the
that,
not
it
court
responded
be
should
furnished
orders
decisions
or
244
Doc. A/41/40
Ibid.,
pr. 5. In Gilboa
v. Uruguay,
decree
that,
to
the
of
128,
alleged
pursuant
a
author
p.
1973 the publication
of any judgement
of military
June
The
HRC
no
prohibited.
made
expressly
was
courts
because
the
14 violations
findings
article
on alleged
ibid.,
had not been completed,
pr. 7.2.
trial
245
Ibid.,
In Gilboa
the author
v. Uruguay,
alleged
before
"The entire
the military
courts
procedure
that,
14".
The HRC made no response
is in violation
of article
finding
Cf.
The
of
a
this
pr. 7.2.
allegation,
to
in
inhuman
treatment
Libertad
prison
of
at
practice
ch. 9, prs. 9.18-9.18.1
above.
Uruguay,
246
Doc. A/36/40
p. 120.
'-n"
the
to
relevant
1V
is
Committee
The
matter.
by
ppp
gravely
this
Although
omission.
similar
have been made in a number of other
requests
cases,
has never
the Committee
the
yet been furnished
with
decisions.
This
tends
texts
to suggest
of any court
judgements,
that
even of extreme
gravity,
as in the
concerned
are
case,
present
the
circumstances,
basis
of
such
the
accept...
that
amounted
to
Members
of
the
been
had
he
for
imprisonment
failure
a public
without
the State
party
250
Covenant.
any
requirement
247
In
the
to
justify
to
subvert
pr.
to
action
inter
because
no
State
party
the
public
against
State
The
representative
promised
in future
the
would
cooperate
Government
with
and 373. See also
n. 335 below.
SR 355-357,359
250
Doc. A/38/40
Ibid.,
tried
given
with
has
by
the
ever
hearing
it.
11.
248
249
HRC
alia,
was
had been
no reason
in accordance
this
date,
an
upset
The
disclosed,
the
to
of
exceptions
in answer
to an allegation
Ibid.,
by
told
was
he was detained
and a half
years
four
(1)
14
and
reporting
preparations".
facts
the
the
when
where
prison
to
judgements
Uruguay
of
Uruguay249
to
cautiously
down
during
on
Touron
Luis
rather
hand
to
criminal
fact,
this
Committee
article
hearing
to
unable,
before
it,
representative
that
view
of
violation
raised
and
the
expressed
up
sentenced
"conspiracy
Constitution
the
feels
Committee
HRC took
in
writing.
proceedings
against
247
".
trial..
a fair
the
in
down
information
the
of a
allegation
phrased
in writing
the state
with
before
the
he appeared
248
process.
Estrella
In
10.31
v.
whom he met at
official
that
handed
not
p. 150.
pr. 10.
that
HRC,
his
see
L1.
The presumption
innocence
of
lu
13y
(A. 14(2))
of
It
the
to
attempt
article
14(l)
these
violations
innocence
10.33
1980
similar
of
in
informed
he
The
and
to
has
there
the
its
HRC
been
him'
Antonaccio
sentenced
fifteen
years
simply
expressed
of
to
general
promptly
understands
against
cases
have
been
no
also
constituted
a
253
innocence.
We have
evident
be
(3)
and
of
presumption
broad
approach
charge
the
explain
subsequent
has
held
there
Committee
which
is
there
although
behind
this.
reasoning
in
However,
'To
innocence
of
presumption
and
the
of
detail
the
violations
of
that
suggestion
already
comment.
nature
which
of
the
noted
the
violation
the
in
in
no
252
presumption
254
in
and
cause
of
language
of
the
A. 14(3)(a).
v.
to
Uruguay255
thirty
special
the
A was tried
imprisonment
years
security
view
251
that
measures.
article
in
July
plus
The
HRC
14(3)(a)
de Massera
Ambrosini,
Uruguay,
and Massera
v.
Doc.
Doc. A/34/40
p. 124; Perdoma and De Lanza v. Uruguay,
A/35/40
p. 111.
252
See
the
Nielsen
2 YBECHR p. 412
Case,
at
is
decn.
inquiry
Under
446-448,
ECHR
the
admiss.
no
pp.
6(2)
violation
of article
when a
made as to a possible
6(1)
fair
in
the
trial
of
requirement
article
violation
been
found,
Belgium,
has already
see De Weer v.
n. 226
decision
Court
the
See
the
German
Federal
also
of
above.
(1980)
339.
in
1
HRLJ
p.
noted
253
Sequeira
See
Uruguay,
Doc. A/35/40
e. g.
v.
p. 127.
254
See pr. 10.. 11 above.
255
Doc. A/37/40
p. 114.
CH. 10
had
violated.
in
living
while
to
indication
party
to
contact
and
"The
Committee
certain
to
of
the
the
need
no
actually
taken
the
transmit
in
17
of
judicial
the
the
the
1977
authorities.
in
judgement
State
party
to
a view
failed
256
257
69
if
with
there
article
Doc. A/38/40
Ibid.,
is
in
make
its
enabling
court.
steps
to
order
known
to
the
to
according
1978,
of March
days before
three
that,
before
the
conclusion
sufficient
author
to
whose address
the judgement
in
fact
the
any
in
therefore
hearings
the
about
him
court,
that
the
with
efforts
the impending
to
prepare
his
facie
prima
evidence
of a failure
14(3)(a)
is a burden
there
on the
p. 134.
pr. 14.2.
of
author,
trial
second
issued
only
thus
proceedings,
257
defence".
comply
the
to
informing
of
the
The
both
that
clerk
given
not
had
reports
summonses
party
was
Committee
court
to
and
true
he
that
reproduced
is
It
State
to
correctly
August
confirms
Thus,
the
has
party
press
is
be
regard
limits
those
through
the
be
of
With
accused.
however,
that
place.
summonses
is
Belgium
taken
by
state
must
duly
can
contention
only
indication
However,
authorities
State
The
state
explicitly
been issued
by
had
on
which
the
with
trials
had
the
views
there
responsible
author's
the
they
after
judgements
efforts
specified.
the
challenged
known
of
that
communication,
present
be
not
appear
the
contact
establishing
learned
an accused,
acknowledges
limits
expected
to
inform
its
obligation
M,
sentenced
He
In
press.
the
of
and
Tribunals.
the
256
Zaire
v.
tried
Zairian
through
some
HRC gave
Mbenge
twice
was
by
trials
these
about
Belgium,
punishment
capital
in
Similarly,
been
690
CH. 10
State
to
party
those
steps
inform
the
must
article
article
14(3)
have
by
The
both
matter
Lanza
was
inter
ground,
legal
to
it
was
alleged
as
he
to
him
to
M. C.
to
the
he
no
A was
been
able
on
(d)
the
with
HRC
the
14(3)
to
Uruguay260
v.
choose
had
the
him.
(b)
his
defence.
of
the
assigned
appointed
right
HRC
The
violated
was
own
counsel
was,
and
counsel
his
defence
of
lawyer
visit
the
effective
denied
twice
view
on
no
relatives
Article
question
had
the
to
the
rights
contact
and
Perdomo
14(3)
denied
prepare
In
article
was
covered
expressed
de
A's
clearly
least.
at
appointed
the
for
is
Antonaccio
either
to
unable
of
communicate
In
to
dossier
with
to
and
M. C.
unable
with
violations
258
case.
facilities
of
that
that
comply
other
Mbenge
the
that
view
to
effort"
to
counsel
violation
lawyer,
was
comment
(b)
Uruguay259
communicate
therefore,
made
and
A's
expressed
or
(3)
although
A's
examine
because
14
that
and
be
to
assistance.
never
in
and
(A. 14(3)(b).
access
failure
and
choosing'
alia,
access
had
defence
taken
actually
"sufficient
and
of
v.
there
that
time
own
article
de
and
result
in the
his
of
10.34
may then
as happened
his
has
a
The
of
counsel
to
victim.
adequate
preparation
it
steps
amount
alleged
14(3)(a)
'To
the
show
691
261
right
The
of
HRC
access
258
11 of
(75)
below.
See pr. 10.40
Cf.
Resolution
"On
Council
Committee
Of Europe,
of Ministers
the
of the
in
held
the
absence
governing
proceedings
the
criteria
Of
Resolutions
Committee
Adopted
By
The
the
accused",
of
(1977).
Relating
to Crime
Problems,
Ministers
vol.. III,
259
260
261
Doc. A/35/40
p. 111.
Doc. A/37/40
p. 114.
in Simones
Ibid.,
pr. 20. Similarly,
v.
is
That
interesting
case
Doc. A/37/174.
also
to invoke
failure
of a court-appointed
counsel
See ch. 4, pr. 4.108,
domestic
remedies.
n. 706.
Uruguay,
the
on
alleged
CH. 10
to
the
inter
alia,
and
copies
to
access
file.
court
alleged,
262
that,
HRC noted
for
a right
provide
copies
with
investigation
ground
violates
particular
case
facilities
to
person
as
proven,
of
to
access
depend
will
deprives
unfairly
explicitly
be furnished
in
criminal
allegations
occurred".
it
not
OF.
adequate
his
case.
to
does
a violation
264
is
It
Covenant
denied
relevant
the
that
denial
the
been
documents
relevant
if
all
asserting
had
a charged
accepted
3(b),
paragraph
whether
all
Even
were
for
author
of
...
to be
he
263
Norway
v.
of documents
"The Covenant
The
of
O. F.
In
that
692
the
of
there
would
of
article
be
no
14,
that
submitted
documents
relevant
on
in
the
accused
of
whether
the
defence.
his
Denial
of
prepare
documents
be
to
permissible
certain
may
under
access
interests,
laws
to
relating
public
privilege
national
265
in its
As noted,
comment
general
and confidentiality.
"facilities",
"must
14
the
HRC
that
stated
article
on
adequate
include
access
requires
accused
Allegations
10.35
the
and
HRC of
Zaire
to
documents
to
to
and
his
prepare
have
been
the
harassment
but
most
of
case".
made in
of
the
other
defence
which
evidence
266
the
to
ccmmunications
in Uruguay
lawyers
allegations
have
concerned
262
ECHR
the
Under
the
equivalent
of
provision
facilities
held
the
EUCM has
that
the
(art. 6(3)(b))
include
do
to
accused
person
an absolute
not
an
granted
be
it
file,
to
the
may
access
court
although
of
right
in certain
lawyer
he or his
that
implied
circumstances
it,
X
7138/75,
have
A.
to
v.
reasonable
access
must
X v. U. K.,
D. & R. 9, p. 50. See also
A. 5282/71,
Austria,
5
A. 8427/78,
Hendriks
Netherlands,
p. 99;
v.
C. D. 42,
EHRR 223, prs. 140-144.
263
264
Doc. A/40/40
Ibid.,
p. 204.
pr. 5.5.
265
The
U. K.
For
a recent
21,1986,
October
Times,
266
above.
case
see Taylor
Scott
J.
v.
Anderton,
CH. 10
State
the
to
prior
situations
unhindered
access
States
taking
not
for
counsel
In
10.35.1
four
the
inadequacy
lawyer.
"denied
was
275
counsel".
267
p. 179.
below.
of
A more
Madagascar274
it
but
14(3)(b)
article
that
view
where
of
in
E's
not
make
See e. g.
Izquierdo
however,
See,
Marais
v.
v.
above.
269
See ch. 4,
pr. 4.11
at
273
274
275
pr. 10.43
The
breach
the
Marais
v.
M
that
view
with
communicate
that
suggests
of
with
communicate
in
HRC
comment
express
that
the
Doc. A/37/40
Uruguay,
Madagascar,
pr. 10.43
n. 143 above.
p. 154.
5.1,9.2.
Ibid.,
prs.
Ibid.,
pr. 11.
Doc. A/38/40
p. 150.
Doc. A/38/40
p. 141.
Ibid.,
below.
is
clearly
pr. 4.11
272
to
to
See ch. 4,
271
any
legal
lawyers.
years.
been
expressed
opportunity
finding
Doc. A/39/40
two
had
HRC
V.
but
limited
was
defence
over
268
270
choice
finding
the
adequate
This
E's
opportunity
helpful
Scarrone
his
there
did
as
adequate
272
defence.
appointed
times
and
legal
his
have
not
Uruguay273
v.
officially
only
expressed
his
Estrella
In
of
own choice,
him
not
visit
nor
271
the
The
HRC
case.
14(3)(b)
had
been
article
preparation
acting
in
the
noted
importance
individuals268
of
did
who
in
did
the
two
of
him
the
counsel
that
view
for
assistance
on
have
O. P.
already
anyone
269
victims.
not
because
violated
saw
alleged
the
expressed
one
to
the
of
the
on
for
it
the
lawyer,
appointed
developments
him
of
a court
inform
to
to
force
We have
HRC
exception
S did
Uruguay270
the
of
into
entry
267
concerned.
party
statements
clear
the
693
pr. 19.
For
the
facts
of
the
case
see
CH. 10
Vasilskis
In
10.35.2
the
HRC expressed
14(3)
article
legal
278
adequate
defence.
important
is
that
view
(b)
(d)
and
it
rights
in
person
formulating
following
consideration,
its
not
treatment
of
of
counsel
14(3)(b)
article
v.
the
had
that
for
the
own
and,
therefore,
difficulty
of
the
accused
in
that
by
article
of
his
at
communicating
as
of
standard
10(1)
of
him,
deprives
choosing
of
after
the
with
the
of
holding
weeks
possibility
his
is
account
the
her
of
HRC stated
six
The
Uruguay279
when
taken
required
it
also
but
stage,
critical
preparation
incompatible
only
Covenant,
the
276
it
had
court
a lawyer.
a violation
did
have
not
Caldas
observes
incommunicado
is
arrest
of humane
with
the
be
his
of
the
because
Committee
detainee
277
highlights
views
must
preparation
14(3)(b)
article
incommunicado.
The
detained
"The
in
counsel
for
decision
because
the
securing
counsel
assistance
The
10.35.3
with
Uruguay
v.
defence
Va
appointed
of
communicate
for
the
allow
to
enough
276
adequate
defence.
to
afforded
opportunity
694
one
required
by
the
most
of
De Voituret
Doc. A/39/40
Uruguay,
p. 164,
v.
her
daughter,
that
the
alleged
alleged
the
author
her
from
little
expect
very
assistance
could
victim,
from
because,
is
lawyer
"She
defence
prevented
freely.
him
have
take
to
The
conversations
consulting
her
lawyer
by
defence
telephone
the
and
while
place
by a glass
daughter
wall
are separated
and continuously
2.8.
The
by
their
standing
pr.
guards
at
side",
watched
14
the
view
article
no
on
alleged
HRC expressed
violations.
277
Doc. A/38/40
p. 173.
278
279
In
Ibid.,
pr. 11.
Doc. A/38/40
p. 192.
CH. 10
facilities
280
important
defence".
Machado
In
from
view
because
the
take
proceedings
knowledge282
be
tried
HRC
has
to
right
The
10.36
without
has
14(3)(c)
been
opportunities
out
the
nor
indicated
Uruguay
Uruguayan
do
C was
282
283
period
covered
Ibid.,
to
in
He
was
of
communications
tribunals
despite
the
in
spelt
covered
de
Casariego
November
of
of
14(3)(c)
article
in
in
number
clearly
period
connivance
forcibly
article
military
by
trial
victim's
283
counsel.
that
neither
Brazil
when
view
(A. 14(3)(c).
view
example,
the
with
officials.
281
that
HRC has
arrested
delay.
of
the
so
his
a number
operation
it
relates
284
ICCPR.
For
agents
280
in
the
alleged
the
expressed
period
assistance.
to
undue
how
9(3)
285
article
without
time
precise
the
without
this
expressed
14(3) (b)
article
unfortunate
to
HRC expressed
the
14(3)(b)
of article
notification
the
is
It
Uruguay.
of
incommunicado
legal
to
his
of
during
HRC has
the
violated
concerning
mostly
The
access
place
or
held
a violation
of detention
surprisingly,
is
there
a breach
that
police
been
preparation
M was
1981.
May
conditions
barred
M from
effectively
Not
The
to
had
there
that
the
Uruguay281
v.
1980
November
for
695
v.
by
Brazilian
two
abducted
1978
by
to
Uruguay
pr. 13.3.
Doc. A/39/40
See Mbenge
p. 148.
v.
Zaire,
pr. 10.33
above.
In
Uruguay,
Doc. A/38/40
See Nieto
v.
p. 201.
the
failure
the
EUCT held
that
the
of
Goddi
v. Italy,
for
to notify
Court
the lawyer
of Appeal
acting
Italian
in depriving
"was instrumental
the applicant
of a
Goddi,
A,
Series
defence",
EUCT,
'practical
and
effective'
(1984).
76
vol.
284
See pr. 10.15
to n. 136.
above text
r
285
Doc. A/36/40
p. 185.
CH. 10
where
his
month.
In
was
arrest
1979
March
the
HRC expressed
at
then
what
HRC's
been
expressed
the
violated
was
thirty-four
trial
original
up to
period
to be confirmed
exercise
rejected
this
doing,
the
P alleged
his
right
of
286
Van
287
288
Acosta
Uruguay,
289
290
For
Hoof,
of
allegation
or
the
the
any
The
delay
view
288
to
on the
290
It
the
under
and 254-259.
ECHR
for
hearing
block
the
Party
of
part
the
seems
State
allegation
General.
wrong
of
the
acknowledged
see
Van
Dijk
p. 101.
text
pr. 10.15
above,
Uruguay,
Doc. A/39/40
v.
Doc. A/39/40
p. 175.
Ibid.
the
described
ibid.,
pr. 10.
cover
This
State
Party
289
The
appeal.
See
Doc. A/37/40
This
would
P's
the
of
decision
comment.
delay
in the
carelessness
the
practice
pp. 224-228
be
the
and
Attorney-
Doc. A/37/40
general
that
by
attempt
negligence
Ministry
HRC's
where
heard
transcript
judgement.
appeal
not
available.
14(3)(c)
article
final
in
a deliberate
of
and
the
made
of
constitute
Canada287
the
the
of
scope
invariably
almost
found
article
v.
that
up to a
14(3) (c)
period
Another
the
without
view
relative
as
could
not
that
Pinkey
In
10.37
that
view
in Pinkey
tried
article
9(3)?
Most
the
facts
286
1981
by
HRC has
because
was
suggest
would
to
the
conviction
months
the
same
a violation
the
express
clue
the
been
been
not
article
provisions.
against
appeal
of
that
view
of both
been
not
give
no
because
the
violations
HRC has
was
scope
provisions
of
had
the
views
other
two
the
is
C had
If
violated.
is covered
instance
first
trial
been
had
there
did
HRC
had
9(3)
that
the
On 29 July
charged.
because
14(3)(c)
article
delay.
The
undue
article
C was
in
confirmed
publicly
view
of
696
See
to
n. 136.
Lluberas
p. 169;
also
v.
p. 101.
Government
"unusual
as
Colombia
British
of
and unsatisfactory",
CH. 10
was due
delay
the
that
to
entitled
the British
seek
the
it
reply
delay
Supreme
was
being
aware
in
be
must
the
P's
Colombia
must
be
the
has
Committee
the
to
for
Matters
generally
However,
responsibility"
there
that
291
292
293
the
of
be
the
must
R. I. A. A.,
of
the
note
Court
seem
avoiding
organization
Ibid.,
pr. 17.
Ibid.,
pr. 22
British
delay
appears
the
to
the
time,
same
of
the
of
Canada
position
would
administration
and
of
State.
the
This
been
will
294
"objective
expression
295
indicate
It
spelt
could
out.
been some fault
the State
and that
meaning
is not
have
have
complaints.
likely
to have
293
delay.
responsibility
pr. 15.
Ibid.,
p. 516
not
the
responsible.
At
the
examine
purpose
See I. Brownlie,
Responsibility,
295
take
Supreme
does
Ibid.,
294
to
the
itself,
of
prejudicial
appeal.
of
own motion
292
this
of
Rules
responsible
objectively
right
was
Appeal
its
been
he
that
production.
"the
authorities
have
Appeal
producing
of
circumstances
nevertheless,
effective
of
considered
that
of the Government
been
have
competent
remedy,
should
that
might
of
effectiveness
the
however,
Court
their
behalf
in
he
that
the
held
the
that
as
and
mishaps
the
that
particular
and
excessive
State
on
to expedite
steps
The HRC considered
Colombia
Court.
submitted
delay,
the
of
Code
291
in
of
transcripts
from
and
Court
the
Criminal
resulting
transcripts
Even
rest
the
the
British
of
trial
taken
submitted
P in
with
of
Colombia
Government
for
but
nevertheless
from
an order
production
to do under
requiring
In
mishaps
must
responsibility
failed
"administrative
Office",
Reporters
Official
to
697
of
the
(my emphasis).
Systems
pp. 72-73,144.
pp. 38-40.
at pp. 529-531
Of
The
See
the
(1929).
Law
Caire
Of
Nations
Claim,
CH. 10
the
taken
it
Alternatively,
liable
held
of
contrast
the
the
view
stages.
various
An
approach.
the
various
and
in
this
limit
the
297
respect.
alleged
domestic
general
approach
298
remedies.
Many
10.38
ICCPR
in
example,
1976.
June
March
23
in
facts,
296
for
v.
The
as
See n. 301
HRC
they
the
299
300
Doc.
parties
need
State
for
the
with
the
time
concerned
force
concerned.
S
he
States
domestic
of
into
entry
occurred
was
of
299
escaped
in
on
on
in
Uruguay
the
view
that
had
For
custody
force
or
the
arrested
effects
majority
and dissenting
EUCT, Series
A, vol. 7
prs.
4.103-4.104
See ch. 4,
prs.
4.49-4.52
Doc. A/35/40
A/39/40
p. 148.
the
have
to
for
matter
expressed
ch. 4,
See
States
accords
the
into
either
the
which
below.
the
See e. g.
Wemhoff
v. FRG,
298
under
difficult
of
on
until
entered
the
at
however,
case,
it
Uruguay300
detained
O. P.
far
the
relevant
appreciation
the
of
the
'responsibility
effective
decisions
date
and
The
of
be
the
same
systems
decision
to
to
the
make
HRC's
297
in
might
The
Sequeira
1976.
so
objective
margin
O. P.
1975
September
on
HRC to
the
the
and
the
the
of
spanning
periods
been
remedy
the
of
have
legal
approach
involved
of
sense
the
of
facts
to
under
approach
the
first
the
interesting
subjective
based
the
accommodate
unduly
On
approach
no-fault
the
be
to
because
simply
also
individuals
or
well
may
result
is
is
State
that
responsibility
courts
296
authorities,
in
the
of
examination
more
the
submitted
HRC with
a much
transcripts.
system
It
view.
the
of
takes
ECHR which
the
better
is
these
is
It
have
should
the
that
based
no-fault
excessive.
was
they
obtain
indicate
could
a
on
delay
the
because
responsible
were
initiative
to
authorities
698
p. 127.
See
opinions
(1968).
above.
above.
also
Machado
v.
Uruguay,
CH. 10
themselves
disclosed
he was not
decision
The
by
held
for
detention
three
months
10.39
There
date
to
302
to
trial.
HRC to
justify
"the
the
HRC made
Presumably
violated.
had
Party
for
State
the
and
strict
HRC have
Milasi
See
pr. 9.5.
303
304
305
of
the
e. g.
Doc. A/38/40
no
taken
the
point
had
and
been
because
the
or
detailed
To
date
The
306
systems.
factors.
the
of
no
the
structural
comment
on
approach
of
n. 139 above.
the
EUCT in
v.
Uruguay,
G. Barbato
this
responsibility
such
304
Similarly
of
responsibility
the
ch. 4,
Baggetti
Doc. A/38/40
p. 173.
See the
prs.
4.27-4.36
decisions
of
on
the
the
general
EUCT in
or
EUCT has
pr. 7.1.
Ibid.,
See
HRC.
306
made
proceedings
any specific
305
its
claim.
to
the
on
14(3)(c)
was
the
to
approach
Cf.
The
cases,
302
p. 124,
approach
O. P.
activity".
on
article
attributable
in
legal
problems
301
this
indicated
numerous
comment
that
supplied
placed
seditious
delays
administrative
taken
no
substantiate
HRC has
the
of
view
the
4(2)
article
load
view
not
to
information
under
high
the
the
by
attempt
extraordinary
by
system
of
expressed
period
of time
14(3)(c).
S was in
less
than
and for
301
into
force.
shortest
entered
party
period
Unfortunately
State
State
judicial
Uruguayan
simply
any
the
of
delay.
undue
Party
any State
in
delay
holding
alleged
a
in Vasilskis
the
v. Uruguay303
Exceptionally,
to
during
months
14(3)
article
without
article
in
total
the O. P.
after
has been little
submission
referred
violate
nine
trial
the
represents
also
the
to
alia,
date
that
after
inter
of,
brought
violations
because
violation
constituted
699
approach
n. 74 above.
CH. 10
for
individuals
for
criteria
in a particular
the
307
delays.
HRC has
The
determination
308
case.
In
of
a number
HRC has concluded
700
not
is
what
of
communications
yet developed
"undue
delay"
Uruguay
concerning
by
default
that
way of
article
has been violated
because
had
14(3) (c)
Uruguay
simply
failed
to supply
any information
or documentation
as to
309
the outcome
of criminal
proceedings.
the
in
Trial
legal
own presence,
counsel
(A. 14(3)(d).
assistance.
10.40
It
is
in
a case
instructive
the
which
in
the
safeguards
.
Zaire310
Mbenge
v.
the
Governor
of
1974
was
living
to
capital
and
sentenced
learned
of
no
received
HRC observed
the
begin
to
Belgium.
He
by
punishment
trials
summons
through
to
appear
the
HRC's
the
before
had
was
Zairian
to
views
in
of
Covenant.
left
twice
In
former
and
Zaire
tried
in
and
tribunals.
newspapers.
the
right
importance
citizen
Shaba,
of
the
vital
of
Zairian
province
in
the
14(3)
article
M,
own choosing,
with
HRC stressed
M
He
had
The
tribunals.
that,
307
FRG,
of
EUCT see
e. g.,
Eckle
v.
308
(though
Cf.
Fawcett,
the
that
pp. 164-170
note
is
in
The
text
misprinted
parts).
criteria
established
by
factual
EUCT
the
the
the
are
or
complexity
of
used
issues
by
legal
the
the
raised
own
case;
applicants
in
the
the
manner
and
national
which
competent
conduct
have
dealt
FRG,
the
Buchholz
v.
case,
see
authorities
42,
A,
(1981);
Series
Zimmerman
EUCT,
vol.
and
pr. 49,
66,
Switzerland,
EUCT,
Series
A,
Steiner
v.
pr. 24
vol.
For
the
(1983).
see
a recent
application
criteria
of
117,
Austria,
EUCT,
Series
A, vol.
Erkner
v.
and Hofauer
(1987).
309
Nieto
V.
310
See e. g.
Uruguay,
Caldas
v.
Doc. A/38/40
Doc. A/38/40.
p. 134.
Uruguay,
p. 201.
Doc. A/38/40
p. 192;
L_6 6
CH. 10
"According
14(3)
article
is
to
be
to
entitled
himself
defend
everyone
and
to
in
inadmissible
for
the
informed
permissible
present)
exercise
effective
the
to
made
his
trial
Otherwise,
the
time
adequate
defence
his
examine,
him and
witnesses
On the
had
was
violated
charged,
311
(art.
Ibid.,
to
the
article
tried
(art.
that,
all
of
circumstances
person,
although
examined,
in
sufficiently
his
right
under
proper
date
the
cannot
his
of
have
the
the
the
be
should
about
the
Judgement
the
and
has
place
of
attendance.
is not given
of
preparation
himself
defend
own
choosing
opportunity
witnesses
attendance
and
behalf
(art.
14(3)(e)".
14
article
notwithstanding
due notification
for
,
the
14 (3)(a)).
the
be
to
the
of
his
request
in particular,
assistance
nor does he
obtain
on his
facts
rights
14 (3) (b)
have
or
Indeed,
steps
necessary
beforehand
accused
to
reasons
Nevertheless,
the
accused,
and facilities
14 (3) (d) )
(art.
some
exercise
in the interest
accused,
inform
him
legal
through
in
accused
him
and
the
absence.
are
requires
of
absence
the
against
proceedings
in
absentia
been
the
inform
to
taken
of
that
presupposes
person's
in
proceedings
of
justice.
of
administration
requirements
14 cannot
be
article
proceedings
to
presence
legal
through
other
rendering
the
when
the
of
declines
advance,
in
his
or
irrespective
accused's
in absentia
proceedings
instance,
(for
in
tried
and
Covenant,
the
of
person
This
provision
assistance.
enshrined
of due process
as invariably
construed
absentia
701
to
against
examination
31'
of
HRC expressed
Zaire
the view
that
14(3) (a) (b) (c) (d) and (e) because
M
and
pr. 14.1.
convicted
in
circumstances
in
CH. 10
he could
not
which
due process
enshrined
10.41
Most
in
tribunals
or
counsel
to
access
his
counsel
the
Uruguay:
or
close
the
trial.
tortured,
the
reduced
B was denied
on
In
his
was
its
The
B was
own
of
or
the
no
the
those
of
choice
fourteen
of
communications
a military
by
appointed
that
B and
from
seeking
the
sentence
alia,
that
of
counsel
officio"
legal
the
allegedly
his
trial
counsel,
Four
authorities.
forced
were
others
any
from
by
defence
"ex
that
be
to
right
inter
was alleged,
have legal
victim,
months
but
the
1979
March
of
effective
alleged
allowed
of
military
no
access
neither
pattern
under
other
counsel
M. R.
the
reply
assistance
appeal.
that
to
refrain
Colonel
legal
right
asserted
to
than
It
and
own choice
M. R.,
Colonel
threat
appeal.
the
his
witnesses
no
relatives
313
Many
a delay
in
sentenced
He was
was
practice
trials,
closed
after
and
began.
same
conflicting
submissions
314
State
party.
315
B was arrested,
v. Uruguay
Burgos
In
the
and
of
communications
of
problem
and
author
operation
a limited
choice,
legal
assistance,
at
present
raise
the
safeguards
312
provisions.
in
the
allegations
HRC have concerned
the
in
violations
the
enjoy
the
of
to
submitted
effectively
in those
702
at
State
denied
choosing
State
all
times
party
the
party
and
also
right
asserting
B had
that
submitted
he had lodged
that
an
the
rejected
have
to
he
that
defence
was
not
allegation
counsel
of
prevented
312
is interesting
Ibid.,
the use
to note
pr. 21. It
"due
in
does
the
term
the
process"
which
not
appear
of
in
in Mbenge is also
The decision
Covenant.
considered
8.25
See
EUCT,
8,
Goddi
Italy,
above.
pr.
also
v.
ch.
(1984).
A, vol. 76,
Series
313
314
see
See the
cases
cited
in
pr. 10.30
the
HRC to
above.
these
problems
CH. 10
from
having
one
that
and
703
accused
themselves
persons
and
from
list
the
authorities
choose
of
316
lawyers.
In
the
reply
court-appointed
author
"since
indicated
that,
accused
persons
can only
choose
from
lawyers
lawyers
drawn
their
a list
of military
up
the
not
by
to
access
Government,
lawyer,
civilian
who
of a fair
safeguards
In its
expression
it
had
taken
had
party
own counsel,
has
"It
that
him,
been
B. R.
did
as
the
obligation
of
of
317
318
319
320
this
a civilian
the
with
"genuine
and
the
proper
HRC indicated
that
enjoy
testimony
witness
and
others
arrested
and
I. Q.,
whose
parents
forced
to
agree
to
officio
for
party
counsel.
that
view
B was
It is
State
no
M. S.
opportunity
on
had
the State
although
from choosing
his
prevented
Burgos
the
counsel,
for
a State
permissible
316
were
318
because
violated
319
legal
counsel.
choice
choice
Lopez
HRC expressed
take
not
that
refuted
including
are attorneys,
legal
counsel".
The
fact
B was
(B)
not
the
the
of
did
views
however,
not,
indicating
had
of
that
stated
with
trial.
account
provided
he
317
that
and
husband
unconnected
have
might
defence"
impartial
her
Government",
Uruguayan
the
forced
spell
to
party
example,
to
320
14 (3) (d)
article
to
accept
that
unfortunate
to
ex
out
the
the
whether
the
HRC
of
extent
free
the
permit
preclude
Colonel
it
is
possible
7.1,7.4.
Ibid.,
prs.
Ibid.,
pr.
Ibid.,
pr. 11.5.
Ibid.,
pr. 13.
8.
In Machado
the
State
v. Uruguay,
argued
party
defence
independent
"Are
officio
that
ex
counsels,
in
hierarchy
to the military
lawyers
who are not subject
(Footnote
Continued)
CH. 10
10.42
defence
when
already
had to
been
difficulties
the
Some of
the rights
securing
of
detained
incommunicado
have
of
is
person
321
noted.
a
704
In
a number of
of detention
the
HRC has
the
cases
to
effect
on the right
legal
in
to
For
have
assistance.
example,
access
322
included
the
Carballal
allegations
v. Uruguay
more
incommunicado
detention,
five
the
than
months
much of
consider
tied
time
extremely
and
harsh
the
that
view
blindfolded,
regime
"the
assistance".
its
views
of
all
them,
of
have
there
been
allegations
before
military
in
lawyers
defence
the
decision
national,
was
which
en route
in
Madagascar.
aircraft
landing
(Footnote
HRC in
a
to
passenger
Mauritius,
M was
tried
harassment
in
any views
harassment
on
was
African
the
tribunals
but
allegations.
lawyers
defence
the
legal
of
these
Uruguay
to
conditions,
or
C from
access
cases
HRC has not yet
expressed
324
A case
the
where
of
article
detention
access
helpful
if
alleged
barred"
an
HRC expressed
his
of
be more
of the
"effectively
The
violation
to
subjection
assistance.
As noted
10.43
been
conditions
him
from
barred
323
It
would
indicated
which
effectively
perhaps
to legal
of
had
there
because
14(3)
and
detention.
on
made
and
by. the
M,
of
HRC
a South
chartered
emergency
for
sentenced
an
Continued)
functions.
technical
These were
of their
the performance
the
that
in
conformity
with
should
principles
strict
legal
technical
any
counsel
of
a
and
nature",
regulate
p. 148, pr. 8.
Doc. A/39/40
321
322
above.
p. 125.
323
Ibid.,
pr. 13. Similarly
148,
A/39/40
p.
pr. 13.
Doc.
324
See pr. 10.35 above.
325
Doc. A/38/40
p. 141.
in
Machado
v.
Uruguay,
CH. 10
the
overflying
country
the
endangering
statement
by M's lawyer.
Marais'
left
Madagascar;
became
Maitre
Although
defence,
in
him
the
basement
of
and,
subsequently,
prison
police
Madagascar,
thereby
effectively
to
interim
an
between
communication
legal
counsel,
327
Hamel".
to
party
in
In
HRC
State
barring
obstacles
ensure
party,
the
that
for
facilities
326
of
the
the
failure
communication
Maitre
lawyer
effective
Eric
his
and
access
Ibid.,
pr. 17.1.
to
brought
a communication
4.11
4,
above.
pr.
ch.
327
Ibid.,
pr. 5.1.
Hamel
client
to
each
and
Maitre
Eric
the
State
clarification
hampered
had
it
and
hitherto
family
of
failure
the
there
to
and
of
means
his
access
that
should
"the
his
ability
information
victim,
information
noted
of
consideration
the
the
provide
requested
from
him
his
326
HRC
alleged
light
political
expelled
alia,
particular
the
the
requested
the
detained
Ambohibao
Marais".
inter
on,
clarification
and
political
Hamel,
Dave
the
trial
the
impairing
represent
his
prepare
Malagasy
the
further
decision
to
Maitre
arrested
to
unable
during
1982,
was
December
From
and
the
he
was
days
February
authorities
police
its
11
On
from
client,
Marais
two
Marais.
permit
so.
Hamel
for
except
itself.
Dave
Dave
his
doing
Maitre
with
communicate
In
1981,
May
to
Hamel
Eric
for
see
from
refused
Maitre
obtained
prevented
repeatedly
Later
to
Natai,
subsequently
attorney
Magistrate
examining
1979
was
Hamel
faced
Jean-Jacques
attorney,
defence
The
country.
difficulties
the
Madagascar.
the
thereby
and
the
of
outlines
he
into
authority
security
first
"Dave
re-entry
without
national
of facts
HRC's
705
"requested
been
any
access
to
have
from
had
other.
the
The
proper
State
Hamel
Maitre
subsequently
the HRC in his own right,
see
CH. 10
inform
should
the
party
in
it
this
connection".
ones
went
unheeded
329
sentence.
as found
(d)
disclosed
M had
with
communicate
his
to the
right
the
finding
of
counsel,
Maitre
a violation
of
of
lawyers
or
harassment
of
in
law
and
subsequent
a letter
of
a
view
remission
that
and
the
often
14.331
article
example
of
this
respect
of
the
328
329
330
331
Malagasy
the
O. P.
can
above
assist
Ibid.,
pr. 7 at
Ibid.,
prs.
Ibid.,
pr. 19.
pre-trial
legal
in
the
freedom
intimidation
of
the
the
securing
rule
rights
how the
its
reporting
procedure.
in
process
operation
can
of
by
with
important
The
40
matter
represent
preparation
to
been-noted
because
and
principle
a pre-condition
and
to
effective
authorities.
interference,
without
a most important
already
HRC under
the
under
is
has
It
the
to
and
(b)
opportunity
Hamel,
rights
of
facts
the
14(3)
article
adequate
M's
defend
to
Article
10.44
of
representation
assistance,
interferences
of
the
taken
copy
requesting
by
steps
to
assistance
of his
counsel
his defence
has been interfered
and prepare
330
is
Malagasy
The decision
authorities.
him
in
violations
been denied
his
the
requests
HRC expressed
The
because
of
for
except
by
M
written
purportedly
Committee
328
These
706
access
experience
deliberations
332
Another
be
seen
to
counsel.
in
(b).
15.1-15.2.
"IACM
has
The
prs. 10.34-10.35.3
above.
fundamental
that
human rights
view
are
expressed
State
lawyers
a
assume
where
who
violated
for
defending
individuals
for
detained
responsibility
to threats
are subjected
of
reasons
and acts
political
including
intimidation,
such
measures
as withholding
licences
to practice;
they
are
their
a fortiori
where
detained,
", Sieghart,
killed,
maltreated
or 'disappear'
IACM,
l
Paraguay
Third
Report
citing
above,
on
n.
(1978)
IACM,
86-87
Report
and
p. 233
on Argentina
pp.
(1980).
332
See
the
in
above.
CH. 10
This
matter
Uruguay.
concerning
Uruguay333
it
assistance
while
is
defence
was
been
kept
the
of
judge
to
the
had
no
representative
access
pre-trial
10.45 No decision
of
the
notwithstanding
to the appropriate
and
choosing
one
the
offered
grounds
14(3)(d)
substantiating
337
.
In
pay
O. F.
v.
offences
333
Uruguay,
334
335
336
337
338
counsel
Norway
Doc. A/35/40
Doc. A/36/40
Ibid.,
See the
the
State
including
335
with
J. S.
In
summary
in
p. 243.
pr. 6.
Doc. A/40/40
p. 204.
v.
O. F.
of
counsel
aid
by
authorities
her,
there
violation
was
with
See
defendant
the
where
of
also
Doc. A/37/40
to
had
were
no
article
fill
Weinberger
prs.
own
for
prosecuted
a duty
her
pr. 16.
Doc. A/38/40
Ibid.,
p. 127.
p. 114.
members
that,
view
dispute
of a domestic
as
in respect
of
authority
alleged
(non-compliance
HRC
the
legal
338
steps
The
with
14(3)(d).
chosen
an
no
matters
expressed
the
of
until
a
brought
with
counsel.
has been concerned
article
remuneration
to
minor
raise
relevant
existence
to
right
Uruguay
of
to a defendant,
aid
award
been represented
by-legal
fact
a legal
had in
the
had
report
merits
HRC
the
Canada336
the
legal
been violated
334
During
assistance.
to
of
V.
to
right
authorities
been
S had
legal
communication
on
no
14(3)
opportunity
and
Sequeira
because
the
State
number
in
but
occasions
him
for
trial.
to
the
communications
three
access
aspect
aid
on
article
the
HRC took
legal
detention
commit
of
of
number
example,
S had
that
that
view
consideration
the
in
by
recognised
not
been
initiated.
has
taken
expressed
he
because
For
alleged
prosecution
before
a military
had
in
raised
was
707
274-275.
two
in
v.
CH. 10
form
exceeding
and
trivial
339
fine.
and
could
His
request
of
expense
that
view
the
State
the
author
particular
of
(e)
has
witnesses
tribunal.
In
in
trial
support
Mbenge
absentia
have
of
expense
witnesses
and
the
'
him.
against
not
before
of
to
a
cases.
present
military
that
HRC observed
the
due
article
number
allowed
case
Zaire342
that
view
small
A was
his
of
v.
without
him,
inter
deprived
accused
to
the
rights
in
notification
the
of
alia,
14(3)(e).
article
have
'To
he
cannot
court.
10.47
Uruguay341
v.
in
his
the
expressed
in
violated
been
Antonaccio
this
attendance
behalf
under
witnesses
has
HRC
The
10.46
the
(e) ).
14 (3)
(Art.
as
the
at
would
the
the
on
small
HRC expressed
in
show that
to
obtain
appointed
examined,
witnesses
conditions
same
to
to
justice"
of
lawyer
at the
have
and
examination
The
was refused.
had failed
of
be
were
charges
lead
to
counsel
or
examine,
him
against
Both
only
"interests
'To
In
practice
assignment
340
party.
State
14(3)
in
the
required
the
speed
the
case
limit).
the
for
708
'
To date,
339
340
341
342
343
free
the
understand
(Art.
or
14(3)(f)).
no views
Ibid.,
pr. 3.4.
Ibid.,
pr. 5.6.
of
assistance
have
speak
343
an
the
See pr.
10.5
language
this
concerned
p. 134.
Cf. Fawcett,
pp. 198-199
See pr.
above.
10.40
used
provision.
Doc. A/37/114.
Doc. A/38/40.
if
interpreter
above.
on ECHR practice.
in
CH. 10
'Not
to
It
is
the
and
allegations
based
default
For
four
a
of
each
made
decisions
are
the
on
Burgos
that
these
cases
no
reply
in
effect
allegations
it
had
such
refute
the
court
been
allegations
of
tribunal
and
considered
was
at
raised
for
requests
relevance.
Both
seem
trial
to
show
either
was
these
article
State
344
him
party
345
346
Ibid.,
had
allegedly
cut
to
off
admit
HRC
been
p. 176.
p. 150.
no
by
an
reply.
expressed
violated
On
HRC's
decisions
electric
subversive
been
not
the
subject
including
torture,
pr. 13.,,
Doc. A/38/40
had
Uruguay
v.
of
allegation
compulsion
Estrella
made
the
Doc. A/36/40
the
or
was
allegations
14(3)(g)
to
orders
In
article
need
would
judgement
the
court
and psychological
hands would
be
the
these
of
physical
his
that
Again
refuted
ignored
pianist,
an
them.
to
it
psychological
were
against
had
any
forced
order
that
that
or
by
asserted
which
Uruguay
and
force
or
victim.
were
Burgos
covered.
to
the
in
the
concert
effort
in
Presumably,
of
rejected
copies
physical
be
to
In
all.
decisions
that
party
State
the
view
the
State
transcript
provide
expressed
345
violated.
cases.
the
HRC
the
allegations
14(3) (g)
of
to
of
others
and several
false
to
threats
sign
statements
under
in
legal
the
used
proceedings
subsequently
had not
that
the
State
Considering
party
witnesses
or
article
number
Uruguay344
v.
that
view
small
Uruguay,
simply
in
example,
in
that
concerned,
party
the
expressed
in
violated
unfortunate
himself
against
14(3)(g)).
has
been
has
(g)
testify
(Art.
'
guilt.
HRC
The
to
compelled
confess
10.48
14(3)
be
to
709
of
would
346
E,
to
severe
the
threat
saw,
activities.
basis
the
the
because
in
of
that
view
of
the
CH. 10
made
attempts
to
and
confess
Conteris
In
as
This
to
only
349
torture.
been
by
'In
the
be
shall
of
such
as
date,
To
10.49
no
confess
view
persons,
on
guilt.
7
article
to
rather
than
the
procedure
their
of
account
age
and
their
promoting
of
(Art.
14(3)(g)
14(4)).
have
views
this
concerned
350
provision.
'Everyone
his
to
In
sentenced
tribunal
convicted
of
conviction
higher
10.50
to
the
expressed
article
HRC's
take
will
'
rehabilitation.
of
juvenile
desirability
the
HRC
ill-treatment
severe
case
the
the
himself
against
torture
of
because
C's
testify
a violation
means
interesting
is
refers
had
forced
C was
to
Uruguay348
v.
there
that
view
him
compel
347
guilt.
to
710
and
tribunal
Montejo
to
one
Colombia
v.
year
7 November
to
of
1979
being
law.
351
imprisonment
for
have
shall
sentence
according
de
on
a crime
the
'
the
reviewed
(Art.
offence
by
14(5)).
tried
M was
by
right
and
military
of having
347
348
Ibid.,
pr. 10.
Doc. A/40/40
p. 196.
349
to
Cf.
Italy's
Ibid.,
pr. 10.
reservation
154
9(5)
Covenant,
Human
Rights
n.
-Status,
article
38.
HRC's
For
the
on article
most
recent
view
p.
above,
Uruguay,
Doc. C/31/D/159/1983
v.
14(3) (g)
see Cariboni
(27 Oct 1987).
350
Cf. On permissible
of
restrictions
on the right
in
Golder,
decisions
the
EUCT
the
to
see
court
of
access
(1975);
A,
Winterwerp
V.
vol. 18,
p. 19
Series
Series
A, vol. 33, p. 29 (1980).
Netherlands,
351
Doc. A/37/40
p. 168.
CH. 10
711
10 of Decree
to article
No. 1923 of 6
sold
a gun contrary
1978,
September
the
Statute
Security.
also
called
of
did
instrument
This
not
type
make this
particular
of
(contravencion)
to
by a higher
subject
review
offence
M alleged
that
the
inter
alia,
article
court.
violated,
this
contested
"It
application
14(5).
the
Decree
State
party
the
phrase
law to
of
The
allegation,
in
that
argued
"according
to
that
law"
the
provision,
leaves
it
to
national
in
determine
which
cases
and
circumstances
be made
higher
to
may
application
a court
of
instance
if
the meaning
and that
of this
provision
be differently
interpreted,
it must be borne
should
in
mind that
disturbed
of
the
public
4(1)
article
Covenant,
the
may take
14(5)
establishes
a review
by
a higher
in
mandatory
a criminal
leaves
law"
offence
it
to
cases
which
to
legal
offences
delitos
and
a higher
and
the
since
circumstances
"according
to
determine
in
application
It
court.
explained
in
in
force
Colombia,
regime
divided
are
into
principle
making
such
involving
possible-cases
national
to.
referred
general
phrase
law
to
two
of
consequently
without
the
situation
meaning
that
measures
tribunal
all
a
the
within
Government
....
of review
the
experiencing
order,
the
of
article
made
is
Colombia
categories,
may
that
be
under
criminal
namely
and contravenciones
and that
convictions
delitos
for
all
and for
almost
all
contravenciones
352
by a higher
to review
are subject
court".
information
In her additional
the
and observations
argued,
author
"...
that
dual
article
jurisdiction
and,
therefore,
352
Ibid.,
prs.
14(5)
for
of the Covenant
provides
for
judgements
in criminal
cases
the
Government
cannot
of Colombia
3.2,7.1.
CH. 10
restrict
that
emergency'
provisions
353
Statute'".
With
view
there
was
derogated
Covenant.
State
to
on the
the
context
HRC expressed
communication
14(5)
article
was
to
intended
not
to
review
of
law",
that
true
for
"crime"
the
the
and
infraction".
the
to
"according
modalities
353
354
355
in
for
to
of
seems
law"
the
somewhat
right
Ibid.,
pr. 8.1.
Ibid.,
pr. 10.3.
Ibid.,
pr. 10.4.
refers
to
refers
only
text
refers
to
text
of
de Montejo,
of
imposed
the
the
in
domestic
circumstances,
tribunal
as
355
Covenant".
If
to
simply
for
though
even
ambiguous.
to
is
Committee
imprisonment
of
refers
the
review
14(5),
review,
14(5)
article
out.
carried
to
English
sentence
the
which
article
defined
as "contravencion"
offence
an
is
in all
the
law,
serious
enough,
by
to
a review
a higher
require
provided
The decision
by
of
French
Salgar
Consuelo
on Mrs.
by
recognized
be determined
Nevertheless
that
view
those
text
right
the
while
by
recognized
is
Spanish
States
the
of
the
of
existence
modalities
is to be
tribunal
the
provides
which
to "un delito",
the
Covenant
the
those
are
what
is
a higher
very
merely
the
expression
of
discretion
Rather,
to
by
review
is
It
not
the
14(5)
rights
and
law.
"according
that
the
the
the
since
parties,
Covenant,
the
domestic
leave
to
the
of
by
14(5).
article
considers
in article
law"
the
the
of
of
application
Committee
right
the
article
the
as
to show that
no
in
from
4
with
accordance
article
354
With regard
to the argument
advanced
"according
"une
by
not
'Security
particularly
such
specific
information
party
"The
is
guarantee,
respect
in the
that
712
the
the
question
on article
phrase
domestic
how
of
4.
CH. 10
the
serious
be
should
there
then
approach
seriousness
If
be
must
indicated
by
the
all
is
offence
to
a criminal
in
looking
of
the
all
one
However,
review.
decision
this
circumstances
the
to
the
circumstances
of
difficult
raise
"serious
in
the
right
of a
exclusion
not be a violation
the
offence
that
perhaps
is
right
the
of
suggests
imposed
sentence
irrelevant.
713
be
would
review
or
sufficient,
that,
serious
the
support
necessarily
guarantee
serious".
The
the
would
heavy
civil
on
conviction
his
or
losing
and
her
fine
be
resulted
political
in
the
employment?
We have
had
view
that
minor
require
right
of
general
appeal,
tribunals,
procedure
356
above
in
applies
modalities"
the
restriction
as
in its
that
noted
general
comment the HRC stated
"The guarantee
is
to the most
confined
not
only
357
be read
That
to
comment
could
offences".
already
of
person
convicted
but
required,
if
What
rights?
problems
to
when an offence
356
decision
to require
enough"
review.
be taken
in de Montejo
to indicate
that
might
where
a
in
imprisonment
results
a sentence
of
a
conviction
obviously
would be
would
all
cases
comment
also
include
such
access
requirements
before
to
review
and
tribunals
that
the
that
"domestic
as the
procedures
"most
reviewing
way in which
of
powers
and
not
the
not
matters
might
or
just
suggests
the
and
for
appeals
review
offences
the
takes
account
of
CH. 10
fair
the
of
hearing
and public
14.358
article
is
It
requirements
interesting
also
the
laws
in
to
order
14(5)
article
10.51
In
half
year
the
trial
observed
"...
to
obligation
but
violation
an
under
give
Pinkey
delay
v.
in
for
Canada360
the
production
purposes
right
had
there
P's
the
right
delay
of
The
HRC
be
to
tried
be
should
applied
14(5)
Article
in
the
to
with
right
under
tribunal,
a higher
and that
consequently
in
both
there
these
was
case
a violation
of
361
taken
together".
provisions
have taken
in
HRC could
the approach,
simply
stated
Comment,
General
that
the right
to be tried
without
E. U. C. T.
under
approach
would
14(5)
article
358
to
359
360
361
362
363
right
(c)
14(3)
Article
under
undue
extends
undue delay
362
appeal.
a final
text
and
transcripts
appeal.
conjunction
by
review
its
a two
that,
without
The
been
in
forth
set
the
of
of
remedies
its
adjust
should
to the
359
effect
the
it
violated
was not
party
effective
that
having
been
State
the
paragraph
that
note
14(5)
had
provide
Covenant.
the
of
also
of
to
its
that
view
article
expressed
the view
that
the HRC expressed
only
for
714
of
to
cover
is
This
6(1)
article
the
obviate
which
would
See G. C. 13/21,
n. 190.
the
approach
the
of
perhaps
be
more
in
pr. 10.21,
pr. 17,
cited
p. 168,
pr. 12.
Doc. A/37/40
p. 101.
See also
end of
by the
Such
holding
Doc. A/37/40
Ibid.,
the
taken
363
E. C. H. R.
the
of
up to
period
of
violation
pr. 10.37
an
realistic
above
above.
pr. 22.
text
to
n. 136.
not itself
guarantee
Case,
n. 178 above.
CH. 10
in
since
this
10.52
Some
arose
in
General,
Fanali
in
office
of
that
no
President
the
of
law
'ordinary'
individuals"
to
the
Republic
or
the
Italian
juridical
the
Covenant.
The
the
State
5(2)(a)
to
reservation
The
the
of
reservation
"Article
prejudice
allowed
An
Ministers.
"no
appeal"
to
Constitutional
by
F claimed
violated
objected
to
b)
and
14(5)
the
of
Italian
this
made
upon
5,
shall
of
for
of
aspect
of
14(5)
of
of
admissibility
a)
by
grounds;
"other
President
the
article
the
the
Court
that
system
Constitution
365
the
extended
provisions
Doc. A/38/40
concern
1962
application
in
which,
364
the
committed
the
of
January
the
two
365
competent
decisions
they
as
and
for
Constitution
against
far
as
reads
as follows,
14,
paragraph
to
Italian
C130
Lockheed.
company,
the
25
article
Hercules
type
only
by
O. P.,
Italian
the
the
of
on
public
was
Ministers.
communication
of
by
the
suit
Court'
of
party
abuse
purchase
Force
criminal
Government
in
those
and
Republic
sentenced
related
crimes
in
the
provisions
constitutional
Air
of
is
No. 20
14(5)
members
Court
and
article
retired
America
of
appeal
Constitutional
of
of
134
Article
provided
F,
planes
involved
conviction
concerning
the
States
his
sentenced
with
'Constitutional
the
tribunal.
the
points
364
corruption
military
also
suit
have
tribunal.
and
of
United
the
whom
convicted
connection
Government
The
Italy.
v.
charges
on
fact
a higher
interesting
was
based
from
by
reviewed
sentence
in
P did
case
715
article
under
invoking
the
ratification.
be
Italian
existing
accordance
Republic,
without
with
the
govern
the
p. 160.
On
(a)
5
(2)
O. P.
article
ch. 4,
see
For
4.87-4.99.
decision
the
EUCM see
the
of
prs.
Crociani
v.
A. 8630/79,8722/79,8723/79,8729/79,
et al.
decn.
D. & R. P. 147 (1981).
of 18 Dec. 1980,22
Italy,
CH. 10
conduct,
instituted
level
one
at
before
respect
the Republic
of
the
against
under
either
reservation.
Ministers".
the
two
The
State
party
referred
to
It
objections.
Court
Constitutional
the
HRC expressed
international
the
The
about
despite
level,
the
368
On
continued,
"...
its
on
the
the
wording
where
regard
Since
the
the
This
reservation
366
367
368
369
370
to
of
must
two
is
and
Doc. A/38/40
to
p. 160,
9.2,9.3.
Ibid.,
pr.
11.6.
Ibid.,
pr.
11.8.
Ibid.,
pr. 11.6.
any
no
it
this
pr. 11.4.
these
the
the
doubt
to
competence
domestic
of
the
object
and
differently,
dispute"
it
as
purpose.
it
is
370
*
gives
applicability
of
HRC
depends
case
its
context,
in
the
idea
the
reservation
domestic
the
present
determine
excludes
prs.
at
its
important
clearly
Ibid.,
the
decide
was
reservation
reservation
be had to its
to
upholding
1962.
the
of
read
of
of
there
the
parties
Committee
approach
jurisdiction
Committee
a
that
the
in
to
both
25 January
of
to
constitutional
not be classed
1977
July
of
applicability
of
decision
view
scope
President
reservation
rejected
validity
irregularity
alleged
in
referred
it
was "outside
and that
itself
on the
constitutionality
pronounce
369
law".
for
2
law
the
of
Constitutionality
categories
of
Court
366
the applicability
F contested
of the
its
to
He
his
objections
as
raised
case.
he
further
that
could
argued
and
validity
of
367
proceedings
Constitutional
brought
its
and
only,
the
charges
of
716
State
the
of
party
CH. 10
reserving
international
the
of
accepted
the
both
to
F had
also
to
State
narrow
its
the
him,
but
by
also
of
appeal
been
was
the
of
the
correct
have
372
purpose.
right
inapplicability
the
and
the
as
his
of
consider
would
its
scope
reservation
party
and
that
argued
the
construction
wording
by
confirmed
reservation
to
of
the
of
the
of
proceeded
applicability
view
because
contrary
then
Committee
question
reading
determination
371
the
supervision.
The
only
itself
to
717
not
Italian
provisions
of
2(3)
had
to which
of the Covenant
no reservation
article
he could
He argued
that
been made.
not be deprived
of
for
in article
2(3)
to appeal
the right
provided
of the
if
the
Italian
to
Covenant
reservation
even
article
373
The
HRC
this
14(5)
applicable.
were
rejected
argument,
"The
is
Committee
to
concerned.
overlook
is
It
generally
that
seems
have
to
to
the
nature
true
persons
in
as recognized
unable
the
that
effective
is
remedy
an
of
article
whose
rights
Covenant,
are
remedy".
an
share
But
accessory
this
one,
this
view
the
which
provisions
2(3)
and
provides
freedoms,
violated
general
"shall
right
cannot
it
which
and
be
is
to
right
when the
purported
is
by a reservation,
linked
the
excluded
as in
had
been
the
Evan
this
case.
so,
not
present
in
14(5),
the
right,
case
of
article
purported
is
itself
(appeal).
it
Thus
a
of
a
remedy
consists
invoked
3*71
is correct
it
this
reject
a
submission
would
had
interpretation.
States
that
some
power
of
auto
view
in
individual
the
Judge
Lauterpacht
The
opinion
of
Cf.
Case,
Loans
Reports
France
Norway,
I. C. J.
v.
Norweigan
J. S. Watson,
Autointerpretation,
Competence
(1957)
p. 9;
Continuing
Validity
2(7)
Of
The
Of
Article
The
And
Charter,
(1977)
71 AJIL
Nations
United
pp. 60-83.
372
373
If
Doc. A/38/40
Ibid.,
p. 160,
pr. 6.3.
pr. 11.8.
CH. 10
form
lex
of
is
It
to
there
are
to
2(3)
the
the
However,
independently.
article
other
to
under
the
which
hold
violation
being
the
same
for
view
independent
of
for
violated
of
the
in
be
arrest
miscarriage
terms
of
(right
detention).
jurisprudence
(Art.
justice.
of
of
taken
ICCPR
or
the
EUCT
logically
9(5)
HRC mirrors
the
be
is
article
Covenant.
the
probably
unlawful
of
Compensation
would
taken
article
specialis
example,
for
approach
377
ECHR.
lex
be
this
in
right
in
right
might
that
be
to
need
the
This
but
correct
describes
not
have
would
in
article
found
2(3)
HRC have
to
article
375
follows
This
that
approach
376
13 ECHR.
The
second
argument
compensation
the
here
HRC would
substantive
provisions,
Again
is
one.
another
and
sensible
decision
accessory
of
14(5)
article
right
HRC
subject
of
violation
to
the
it
which
general
arguments
the
an
as
that
be
this
Firstly,
suggest
can
that
separate
distinguished.
article
the
apply
submitted
two
besides
specialis
no meaning
374
2 (3) ".
718
14(6)).
In
10.53
Muhonen
alternative
(instead
of
on
serious
moral
Ibid.,
armed
the
M's
rejected
service
forces)
374
Finland
v.
Board
Examining
378
subject
or
Military
application
to
civil
Service
to
do
authorities
in
the
armed
service
that
he
had
that
proved
not
based on ethical
conviction
unarmed
ground
considerations
pr. 13.
See also
375
ch. 6,
pr. 6.35
above.
Zaire,
Doc. A/38/40
See Ex-Philibert
v.
p. 197.
See ch. 6, pr. 6.33 above.
376
Van
13 ECHR see Fawcett
289-294;
On article
pp.
379-386.
Hoof,
Van
pp.
Dijk
and
377
Ibid.
378
Doc. A/40/40
p. 164.
CH. 10
prevented
379
service.
by
the
of
service
when
and
That
imprisonment.
this
While
before
by
and
facts
the
M applied
The
case
Board
M.
of
18(1)
Ex
a new
to
acceded
granted
and
Examining
a
M was
Board
was
M's allegation
with
(freedom
thought,
of
the
officio
this
on
a
for
months
higher
Subsequently
might
raise
be considered.
should
submissions
perform
for
convicted
sentence
Board.
appeal
to
was
article
the
on
to
and
which
made
twice
He was
favour
religion).
military
eleven
by
confirmed
in
found
of
14(6)
article
not.
that
of
violation
conscience
party
up.
unarmed
refused
was requested
of the
second decision
the HRC to have dealt
The
considered
that
called
pardon
released.
a
confirmed
Examining
and
or
was
Justice.
verdict
the
request
armed
sentenced
serving
Presidential
of
decision
That
refusal
court.
hearing
doing
Ministry
military
this
from
him
719
HRC observed
an issue
under
The
but
question
State
M
did
380
"Such
to
'a
the
HRC expressed
The
person
that,
in relation
compensation
may arise
if
the conviction
of
proceedings
either
he or
has been reversed
she "has
or if
to
a right
criminal
view
on the
pardoned
fact
discovered
shows
been
been
ground
that
new
that
conclusively
381
justice".
or
newly
has
there
of
a miscarriage
M's
the view that
of the case the HRC took
On the facts
judicial
been
by
later
had
never
set
aside
a
conviction
by
his
had
been
that
decision
pardon
motivated
and
it
been
had
than
that
of
rather
equity
considerations
established
379
380
381
that
his
conviction
Ibid.,
prs.
1-2.1.
Ibid.,
prs.
3-9.
Ibid.,
pr. 11.2.
rested
on
a miscarriage
CH. 10
of
justice.
of
article
The
382
had
been
right
to
there
because
14(6)
M had
no
no
violation
compensation.
that
the requirement
makes it
clear
justice
is
It
of
a strict
one.
decision
the
that
the
affecting
HRC's
view
miscarriage
sufficient
is
victim
Accordingly,
720
of
is
not
alleged
altered.
be liable
be tried
to
one shall
or
punished
for
for
he has already
been
an offence
which
again
in accordance
finally
or acquitted
convicted
with
'No
law
the
Schweizer
10.54
In
14(7)
had
had
between
procedure
of
each
and
for
tribunal
military
been investigated
by
1974
the
with
new indictment
S was
in
1971
were
formally
not
concluded
for
appear
an
convicted
have
to
indicates
Ibid.,
or
been
took
at
first
a serious
prs.
which
acquitted.
in
so
fact
the
Nevertheless,
authorities
judgement
for
offence
new
one
in March
1980.
the
(s)
its
pronounced
14(7),
Article
is
person
he has already
the
malfunctioning
of
was
been
not
case.
present
that
tried
does
This
the
on
instance
first
at
The
criminal
Campora
decade
p. 117.
anew
the
almost
a
instance
11.2-11.3.
article
charged
September
the
tribunal
military
until
1980.
judgement
on 10 September
is
if
however,
only
violated
a
again
finally
that
of
issued
382
'
country.
same acts
judge
an ordinary
addition
against
was pronounced
sentence
S alleged
he had been
because
violated
already
1971
and
383
Uruguay
v.
competent
The
charge.
1980
been
the
which
penal
14(7)).
(Art.
before
and
Uruguayan
until
the
handed
down
the
judicial
CH. 10
Covenant".
for
Thus
article
to
amount
circumstances,
undue
delay.
10.55
In
Nieto
to
and sentenced
(as
judiciary
a
series
he
was
of
for
for
those
which
judiciary.
civil
years
distinct
against
started
ten
on
allegation
N had
of
from
In
offences.
due
not
Uruguay385
v.
new
been
The
judiciary)
state
1980,
the
concerned
evidence
"robbery"
the
regarding
commission
and "assault
on the
safety
State
these
party's
offences
in
authorities
of
repetition
instituted
not
on
possess
384
385
386
HRC that
end of
Uruguay,
387
388
the
submission
had
been
no
way
that
no
account,
evidence
Ibid.,
pr. 18.2.
Ibid.,
Doc. A/38/40
before
were
same
facts
sentenced
by
the
Ibid.
pr. 7.
the
proceedings
emergence
of fresh
of
offences"
transport".
of
that
"The
by
now available".
the
fact
the
there
proceedings
since
of
387
that
police
was
had
authorities
388
any
been
did
p. 201.
has been
in
It
to
alleged
communications
the institution
towards
of new proceedings
imprisonment
is
of
a term
common practice
Ibid.,
see e. g. Nieto,
pr. 6.
Ibid.,
as
this
rejected
added that,
investigated
signified
proceedings;
civil
for
"The
were
The
the
shortly
party
of
1972
proceedings
and
that,
ground
because
brought
military
tried
without
in
by
criminal
based
on
those
tried
imprisonment
the
N allegedly
the
been
December
release,
he had
386
that
admission
been
conducted
an
have
proceedings
original
the
of
to
party
reject
an
alleged
14(7)
the
that
the
on
ground
in
the
still
continuing
are
may,
proceedings
original
14(3)(c)
article
State
of
violation
to
contrary
384
system
721
the
the
in
CH. 10
As
25
of
5(4)
article
under
information
to
as
had
they
that
State
the
was
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of
question
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or
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the
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party
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after)
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case
in
person,
accused
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the
requirement
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express
and
officio
would
be willing
would
inevitably
389
390
Ibid.,
See text
criminals
pr.
to
be
to
raise
view
examine
involved.
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acute
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It
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basis
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there
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of
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article
period
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considerable
In
finding
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outcome
no
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of
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article
facts
against
14(7)
article
violate
of
implies
view
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makes
an accused
389
delay'
".
undue
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requirements
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concludes
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war
views
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not
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of
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prompted
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information
of
proceedings,
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of
final
had
In
which
initiate
to
absence
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its
of
HRC
concluded.
party
authorities
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evidence
to
O. P,
the
date
the
that,
observed
"..
State
1983,
July
722
problems
HRC might
take
10.5.
trials
form.
CH. 10
the
Cabreira
In
behalf
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Tribunal
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Covenant".
view
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author
violations.
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inform
the
information
DOC. A/38/40
392
Ibid.,
it
cannot
is
pr. 10.3.
HRC
in
the
information
make
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a finding
2(3)
the
be
Committee
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victim
Covenant
in
on
14 of
and
HRC's
general
with
respect
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suggested
forthcoming
p. 209.
the
information
might
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account
articles
with
alleged
provision
391
of
consistent
specific
dealing
In
the
lack
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requiring
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point.
instance,
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392
is
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on
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alleged
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measures
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information
further
No
State
added
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served
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imposed
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to
merely
The
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and
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of
specific
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measures
offences.
political
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alleged
on C's
1977 contained
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including
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aggravating
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taken
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matter
In reply
circumstances.
imposition
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of
precautionary
alleged
(medidas
de segiridad
eliminatives)
measures
with
illegal
approach
15
"security
of
years
detention
This
fact
391
imprisonment
of
this
examine
in
v. Uruguay
judgement
of
years
was
was
has
defects
offences
same
only
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punished
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of
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10.56
they
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723
more
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CH. 10
obliged
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10.57
In
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Italy
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393
Italy,
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7,
the
of
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The
HRC's
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decision
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will
(A/43/40).
394
of
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394
seems
article
Doc. C/31/D/204/1986
in the
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the
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paragraph
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judicial
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protects
idem".
in
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party,
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sentenced
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paragraph
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those
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and
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making
alleged
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offence
same currency
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724
view
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to
regard
395
accordance
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an
the
14(7).
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HRC's
The State
Ibid.,
pr. 5.3.
for
different
two
tried
A. P. was
ibid.,
5.1.
pr.
Italy,
and
395 Ibid.,
pr. 7.3.
Nov 1987).
The decision
1988
for
Annual
Report
party
offences
also
in
that
argued
Switzerland
CH. 10
14:
ARTICLE
10.58
the
The
APPRAISAL.
of
rights
systematic
and
consistent
of
the
under
in
article
consideration
complex
Committee's
the
undoubtedly
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building
laws
relevant
and
collected
analysis
areas,
developments
in
consideration
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occasion
identified
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initial
consideration
not been repealed
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suggests
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HRC's
that
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removed.
part
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in
its
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standard
look
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example,
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legal
the
397
regimes
operation
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of
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come
military
have
or
denial
put
from
comments
before
again
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features
particular
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14
matters
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reports
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Members
questions
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and
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usefulness
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HRC
the
14
of
new
During
laws
appropriate
repertoire
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396
flexibility.
representatives
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and
article
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of
Having
particular
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on
the
reports
observe
the
parties.
concerned.
periodic
to
facilitated
implementation
State
to
extensive
information
on
of
a very
reports
information
basic
focuses
difficulties
adopted
has
States
of
has
14
The
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Members
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repertoire
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approach.
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14 cries
considerations
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725
40
to
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through
of
inadequacies
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under
of
communications
examination
indicate
both
Protocol
which
and
can
general
optional
tribunals,
396
397
the
See e. g.
see
pr.
pr. 10.21
10.7
above.
above
(on
Iraq).
CH. 10
in
defects
specific
justice
the
interrelates.
work
human
For
rights
example,
inspired
under
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398
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issues'
of
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or
States
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40(5)
survey
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399
400
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399
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14
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FRG).
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pr. 10.23
above
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article
67
HRC
401
the
14
article
foundation
work
respond
above
prs.
State
developed.
solid
further
parties
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of
work.
Doc. A/41/40
been
the
and
pr. 10.15
e. g.
to
between
See e. g.
See
have
extent
considerations
on
been
has
comment on article
it
has already
strengthened
impressive
some
State
to
common
dialogue
the
HRC's
established
can be based.
development
398
parties
have
representatives,
general
so
well
reports,
State
observations
400
ICCPR.
To
respond
representatives
and the States
This
any
now
periodic
to
the
use.
representatives
second
put
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comment
State
to
sent
same
parties.
important
input
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It
process.
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a response
and
by
questions
request
14
article
of
it
of
reflecting
interpretation
its
states
HRC's
14
addition
from
the
put
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advanced
consideration
additional
comments
criticisms
now
the
ECHR may
on
useful
of
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interpretations
it
date
to
and
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criminal
of
to
put
the
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and
experience
be
questions
general
civil
aspects
the
the
it
represents
made,
Apart
jurisprudence.
'list
two
can
and,
general
into
the
the
institutions
representatives.
10.59
The HRC's
experience
of the key
of
Moreover,
a number
analysed
operation
Inevitably
systems.
726
and
in
14(7)).
(Luxembourg);
129
(Sweden).
401
(representative
representative).
See
e. g.
of
the
replies
Spain);
in
Ibid.,
A/40/40
pr. 562
pr. 492
(U. K.
CH. 10
the
dialogue
constructive
in
rights
role
date,
10.60
between
the
them
Optional
Protocol
but
important
of
pronouncements
402
its
terms.
of
the
is
the
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have
comparisons
developed
jurisprudence
accommodation
justice
criminal
suggest
that
raised
under
discretion
the
hearings
guarantees
402
Canada,
403
404
or
14
he
public
article
14.
practice
of
its
interrelate.
the
to
As noted
403
highly
more
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the
ECHR
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be
may potentially
the
States
to
access
important
above.
to
of
14(1)
to
article
judgements,
whether
the
See e. g.,
pr. 10.26-10.26.1
and
challenge
application
including
of
civil
of
article
afforded
right
therefore,
above.
work
issues
key
many
in
any
and
including
systems
under
will
limitations
the
and
article
that
by
poses
practice
a great
of
legal
various
inevitably
The
more
ECHR which
can provide
for
HRC. The
the
ccmparisons
implementation
consistent
404
ICCPR.
content
made
are
the
under
instructive
of
and,
examined
been
made
meaning
and
process
HRC's
the
with
questions
process,
we have
of
Similarly
valuable
40
article
aspects
and
the
early
and
views
the
complemented
which
comments,
general
to
scope
HRC'S
The
reporting
guide
a clearer
provide
jurisprudence
That
HRC
a
the
of
dealt
14
article
than
the
under
put
comments
to
play
its
HRC has
the
on
interpretational
explicitly
the
of
aspects
in
is
the
already
some
done
securing
development
of
number
some important
have
most
14.
article
of
as
HRC can
and the
implementation
the
in
Obviously
stages
manner,
constructive
and
positive
727
to
decision
of
margin
on
rely
who
limit
public
article
14
courts
or
in
v.
Y. L.
above.
this
Obviously
process
difficult,
though
still
easier,
Council
Europe.
homogenous
of
more
of
under
accommodation
ECHR in
the
is
the
CH. 10
405
tribunals,
Although
it
out
the
to
been
do
to
fair
in
approach
"effective"
and
14.407
note
violation
of
of
for
or
compensation,
views
of
the
spelling
14
article
example,
trial,
has
It
applicable
approach
situation,
general
similar
to
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in
the
article
simply
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to
picture
at
practical
Similarly
remedy
victim
the
content
States
what
that
and
406
person.
clear
adopted
rights
regulations.
comment
for
the
of
for
14
article
security
have
to
the
of
not
and
must
fair
looking
implementation
certainly
and
longer
take
HRC seems
EUCT in
the
laws
liberty
seems
emerge
level
the
between
relationship
9 on the
it
will
article
to
the
728
affording
is
be
to
commended.
the
Whether
10.61
has
State
practical
any
produced
14
article
have
of
result
limited
factor.
limited
number
Protocol
and
have
HRC.
The
405
(1975);
406
One
that
the
Uruguay
authorities
is
result
See
Kaplan
407
were
that
much
been
may
have
been
in
parties
to
the
majority
of
during
not
of
C. Morrisson,
European
Human
mind
the
optional
communications
period
co-operating
the
been
have
bear
HRC's
Golder
the
Case,
EUCT,
Case,, EUCM, n. 223 above.
Clovis
In
The
Development
ch. 6 (1981).
System,
Cf.
vast
have
to
seem
they
under
consequence
also
must
No
views
concerned
although
States
its
direct
as
actually
problematic.
HRC that
necessarily
views
of
concerned
Uruguayan
followed
not
HRC's
408
the
the
more
individuals
does
this
released
been
the
When
thereof.
informed
actually
is
results
have
HRC
Series
when
the
with
the
jurisprudence
A,
vol.
18
Of
The
Dynamics
Convention
Rights
decisions
See the
Artico
the
EUCT in
of
A, vol. 37 (1980);
Series
H v. Belgium,
Series
Italy,
(1987)
147
on effectively
avail
point.
vol.
408
See generally
ch. 4, prs. 4.127-4.133
above.
v.
A,
CH. 10
under
article
developed
by
14,
default.
as
under
other
729
articles,
is
largely
CH. 11
730
19.1
Article
11.1
(1)
Everyone
have
shall
interference.
without
(2)
Everyone
shall
of
regardless
in
his
choice.
(3)
The
the
frontiers,
form
Article
It
but
restrictions,
by
law
art,
the
and
or
orally,
through
may therefore
these
are
shall
of
in
any
provided
with
freedom
ideas
and
right
carries
responsibilities.
provided
include
it
be subject
of
seek,
kinds,
all
other
for
be
to
writing
special
only
opinions
freedom
to
right
either
of
of
exercise
this
of
the
right
shall
information
impart
and
receive
have
hold
to
right
this
expression;
print,
the
in
or
media
in
of
paragraph
duties
to
such
and
certain
as
are
necessary:
10
19 UDHR,
For
art.
similar
see
art.
provisions
9 AFR.
The annotated
13 AMR, art.
IV ADRD,
ECHR, art.
art.
in
found
Docs.
history
19 can
be
drafting
of
article
'ch. vi,
5-35
(1954);
119-138
A/5000,
A/2929,
prs.
prs.
'Guide',
See
(1961);
Bossuyt,
generally,
pp. 373-401.
In
Rights,
The
Field
Of Human
U. N. Action
pp. 169-182;
And
Freedom
Of Conscience
And Expression,
K. J. Partsch,
(ed. ),
in
International
The
Freedoms,
Henkin
Political
216-226;
(1981),
210
The
Of Rights
ICCPR,
pp.
Bill
p.
at
Rights,
Human
International
Of
The
Law
P. Sieghart,
Of
Practice
L.
J.
And
327-337;
Macfarlane,
The
Theory
pp.
Speech,
Of
Rights,
Freedom
E. Barendt,
Human
ch. 4;
in
Rights,
Political
And Related
J. P. Humphrey,
(1985);
Law
(ed. ),
Human
In
International
Rights
T. Meron,
Policy
And
Issues,
Legal
pp. 181-188;
p. 170
at
European
Freedom
Of
The
Information
In
G. Malinverni,
On Human
International
Rights
And
In
The
Convention
(1983)
4 HRLJ
And
On Civil
Political
Rights,
Covenant
On
Colloquy
Report
The
International
443-460;
VIth
of
pp.
Convention
Council
On Human
Rights,
European
of
The
(85)
1-17;
19,
Information,
Doc. H/Coll
Article
Europe
(1988).
And Censorship,
Freedom
limitation
A. Kiss,
On
provisions
see
-Permissible
ibid,
(ed.
),
in
On
Rights,
Henkin,
Limitations
Human
Garibaldi,
On
O.
General
229-310;
Limitations
pp.
(1976)
Principle
Of
Legality,
17
ILJ.
Harv.
The
Rights:
The
To
E.
I.
A.
Daes,
The
Duties
Individual's
503-557;
pp.
And
And
The
Limitations
Rights
On
Humap
Community
Under
Article
29
Doc. E/CN. 4/
Of
The
UDHR,
Freedoms
2,
Siracusa
(1983);
III,
chs. II
Sub. 2/432/Rev.
and
ch. 7, n. 1 above.
Principles,
CH. 11
(a)
For
respect
(b)
For
the
rights
protection
(ordre
order
the
of
of
public),
or
731
or
reputations
national
security
health
of
public
of
or
or
others;
of
public
morals.
Introduction.
11.2
Freedom
important
of
opinion
concerns
2
1948
In
inception.
Of
Freedom
the
despite
achieved
little.
work
Nations
work
demands
for
(NWICO).
order
U. N.
new
5
Of
recent
United
of
world
The
demands
inter
years,
Nations
the
expression
information
for
and
U. N.
has
and
of
of
has
principally
Scientific
focus
However,
freedom
the
where
on
alia,
3
to
given
an
its
since
Expression.
area
been
Conference
prepared,
(UNESCO),
freedom
on
a
In
Nations
convened
attention
it
is an
the
of
Organisation
Cultural
United
Freedom
U. N.
4
have
expression
which
on
the
very
the
through
the
consistent
at
expression
the
at
Expression
Convention
draft
and
the
shifted
And
United
to
the
communication
a NWICO have
n. 1 above;
See U. N. Action,
J. F. Green,
(1956).
And Human Rights,
Nations
pp. 76-88,
(Dec. 14,1946).
Resn. 59(I),
principally
The United
See G. A.
U. N. Conference
Final
On Freedom
Of Information,
6/79
(1948).
Doc. E/Conf.
See Humphrey,
Act,
n. 1
ch. 1,
draft
(1984),
50-53;
The
Conference
pp.
a
adopted
above
became
the
Convention
On The International
text
which
(1952),
453 UNTS 191.
Right
of Correction
4
5
See Green,
ibid.,
p. 77.
See L. R. Sussman,
Freedom
Of The
Problems
Press:
in
The
Flow
News,
Of
International
Restructuring
In
In
And
Freedom
The
Rights
World:
Political
R. D. Gastil,
(1980);
One World
Liberties,
Many Voices,
pp. 53-98
Civil
New,
More
A
Just
World
And
Efficient
More
Toward
Communication
And
Of
The
Order,
Report
Information
Commission
For
The
Study
Of Communication
International
(Chairman),
(1980);
MacBride,
UNESCO,
Problems,
Towards
Raman,
And
A New
information
World
K. Venkata
Order:
Problems
Of
Cultural
Access
And
Communication
in
R. St. J. MacDonald
D. M. Johnston,
Development,
and
(eds. ),
n. 7 above,
K. Nordenstreng,
ch. 1,
pp. 1027-1068;
Declaration
(1984).
Media
Mass
Of
UNESCO,
The
CH. 11
come
from
more
general
6
(NIEO).
as
attempt
the
On
and
further
of
possibilities
to
going
economic
have
UNESCO
State
progress
media.
a
context
useful
in
it
controls
of
the
expression,
a
viewed
established
the
of
provide
order
information
has
the
provoked
have
which
other
freedom
on
to
related
world
Nations
8
Within
Information.
HRC was
the
are
increased
United
work
new
States
Western
press
the
Nations
United
and
from
justify
to
recently
Committee
of
from
on
censorship
Most
for
initiatives
The
reaction
States
World
demands
strong
an
Third
the
732
respect
for
new
the
work
to
guide
and
7
the
this
right.
19 Under
Article
11.3
The
provision
in
general
comment
18,1
article
of
consideration
articles
is
19
Article
For
Process.
Reportinq
by the
non-derogation'
not
covered
9
4(2).
It has been the subject
of a
10
40(4).
In
the
under
article
its
State
to
reports
relationship
20,12
literature
21,13
and
on the
2514. has
NIEO
see
been
ch. 5,
noted.
pr. 5.4,
n. 10
above.
7
Demands
for
responsible
U. K.
and the
within
the
UNESCO
withdrawal
for
a NWICO
from
UNESCO
partly
were
U. S.
the
of
(1978).
U.
N.
Doc.
See G. A. Resn. 33/115C,
A/33/45
and
the
UNESCO the
While
recognizing
role
of
central
the
Committee
was assigned
within
a degree
of primacy
U. N. system.
9
On derogation
See SR 356 pr. 18
see ch. 7 above.
Tarnopolsky
on Uruguay).
10
(19),
by
G. C. 10
the
adopted
1983,
27
July
Doc. A/38/40
on
meeting
2.
C/21/Add.
For
HRC's
the
Doc. CCPR/
449,457
and 461.
11
Concerning
the
to
right
See e. g.
and religion.
conscience
the alleged
concerning
on Romania)
its
461st
HRC at
in
109.
Also
pp.
SR
discussion
see
freedom
thought,
of
SR 742 pr. 68 (Aguilar
destruction
and poor
(Footnote
Continued)
CH. 11
19 (1)
Article
11.4
.
of
Members
between
being
HRC have
the
paragraphs
of
article
being
The
preparatory
freedom
view that
15
freedoms.
Apart
restrictions.
the
supports
separate
had
HRC have
are
1.
paragraph
little
very
obvious
reason
for
general
comment
on article
however
"It
should
be
or
paragraph
added
to
Perhaps
without
indirectly,
(Footnote
distribution
it
was
their
say
on
to
the
draft
the
of
what
clear
the
At
publicly
or
Continued)
of religious
in
absolute
they
when
that
point.
normal
circumstances,
little.
1 meant
very
be interfered
with
was
freely
right
imposed
being
that
ended
not
could
it.
Some phrase
make
to
out
opinions
the
might
in
phraseology
no one
and expression
however,
the
HRC pointed
pointed
restrictions
an opinion
knew about
Covenant
the
on
discussion
manifested.
In
start.
Holding
limited
to
open
19,
holding
aired
were
former
the
substance
the
of
difference
clear
19,
of opinion
from
this,
during
this
for
protection
work
of
Chairman
The
the
noted
and 2
latter
the
absolute,
733
should
being
be
protected.
form
to
opinions
directly
or
either
private".
perhaps
if
16
books.
12
Concerning
of
war propaganda
advocacy
and the
is
20
hatred.
Article
racial
or
religious
national,
Partsch,
dealt
comments
ch. 12 below.
n. 1 above,
within
"is
20,
to
practically
that
article
a fourth
paragraph
19",
p. 227.
Article
13
Concerning
the
right
to
peaceful
assembly..
14
freedoms
the political
Concerning
of citizens
in the conduct
to vote,
of public
affairs,
take
part
to the public
be elected
and to have access
service.
15
See Doc. A/2929,
n. l above,
ch. vi,
pr. 120.
16
to
to
see n. 10
as
silence
judgements
Continued)
CH. 11
has
Partsch
that,
commented
"During
discussions
the
that
suggested
"by
only
paragraph
without
opinion
so-called
doubtful,
suggestion
was
to freedom
of
right
by
private
is
obliged
to
that
the
danger
the
interference
private
however,
sources
is
whether
the
a persons
individuals
protecting
by other
the
such
encourage
In
That
interference
State
the
and
well,
freedom.
Thus,
it
article,
was
bar
interference
this
of
1 should
a public
authority".
An individual
has
rejected.
734
and absolute
its
general
comment
"Paragraph
1 requires
be
manner".
on
that
State
might
private
complex
problem
interference
against
in
solved
19
or
is
It
eliminated.
article
as
ensure
from
opinion
can
17
parties
this
the
of
global
HRC
stated
that,
hold
opinions
right
to
1".
paragraph
no
comment
indication
from
welcome
techniques,
is
Covenant
from
18
States
not
helpful
of
the
kind
the
and
world
welcome
concerning
There
parties.
of
re-education
suggest
a
or
no exception
it
information
Allegations
is
This
parties
of
to
right
would
States
to
parties.
brainwashing
of
permits
Committee
States
and
parts
certain
the
The
restriction.
information
The
without
which
"the
protection
of
interference".
mind
is
would
control
centres
in
areas
of
obvious
Continued)
(Footnote
in
Glasenapp
EUCT
-could
and Kosiek,
n. 48 below,
of
in
been
this
have
considered
a
context
as requiring
of a particular
expression
opinion.
positive
17
(footnotes
Partsch,
n. l
above,
pp. 217-218
fact
In
interference
the
expression
without
omitted).
"by
action"
see
was
upon,
governmental
not
voted
pp. 378-379.
n. 1 above,
Bossuyt,
the
18
pr. 21
G. C. 10 (19),
(Tarnopolsky).
n. 10
above,
pr. l.
See
also
SR 457
CH. 11
information.
(2)
19
Article
11.5
Almost
(3)
paragraphs
has
again
2 and
been
Constitutional
The
thereon.
legal
freedom
of
operate
in
however,
that
included
in
the
practice.
the
the
enjoyment
19'
Politics,
20
of
other
on
of
and
very
being
have
the
how
central
it
is
which
should
to
sentence
19,
article
note,
was
"This
essential
themselves
in
protected
been
rarely
on
for
ensure
freedom
to
restrictions
and
expression
is
interesting
It
proposed
the
of
members
views
enjoyment
See
K. Glasser
(1978).
point
comments
comment
rights
starting
has
members
their
to
focused
right
Equally
of
20
been
and
their
general
individuals
enable
of
following
effective
the
of
limitations
indicated
importance
The
specific
consideration
bases
the
seek
has
19.
theoretical.
consistently
could
attention
detailed
approach
or
abstract
IIRC
article
orientated,
practically
a right
3 of
and
expression
HRC's
the
and
the
which
.
the
of
all
on
of
on
concern
19
potential
735
the
S. T. Possony,
Covenant".
Victims
not
is
to
the
21
of
had
19 of
Article
Covenant
the
a central
terms
the
range
of
function
of a-whole
of
realization
individual
development
the
countries,
rights,
of
other
international
the
relations",
successful
pursuit
of
and
has
(Mommersteeg
EUCT
The
Cf.
Rwanda).
SR 784 pr. 38
on
in
importance
fundamental
the
a
stated
repeatedly
Handyside
freedom
democratic
society
of
expression,
of
(1976);
Times
Series
24
Sunday
EUCT,
A,
K.,
v.
U.
vol.
v.
Others
(1979);
Series
A,
30
Muller
EUCT,
and
vol.
U. K.,
EUCT,
73
below;
Austria,
Lingens
Switzerland,
n.
v.
v.
last
(1986).
103
the
A,
For
of
vol.
on
Series
a comment
judgement
the
between
the
EUCM
the
opinion
of
and
these
The
And
D.
Elder,
Freedom
Of
Expression
EUCT
the
see
of
The
To
Defamation:
To
The
American
Approach
Approach
(1986)
35
By
The
Case,
ICLQ
Raised
Lingens
Problems
pp. 891-924.
21
Cf.
The
"...
in
SR 457
pr. 24
famous
comment
(proposed
Justice.
of
by
Sir
Vincent-Evans).
in
Palko
Cardoza
(Footnote
Continued)
v.
CH. 11
The
on
was
which
of rights
introduced
a
in
"one-sided"
23
power".
discussion
the
by the
was opposed
it
that
purported
sentence
the basis
The
to
conclusion
be
philosophical
it
ignored
that
views
the
of
during
debates
to
not
be
736
Eastern
establish
found
in the
the
were
too
was
"economic
HRC
during
reminiscent
of
24
Covenant.
the
failure
the
of
the
within
comment
drafting
of
from
and
problem
general
drawn
members
a hierarchy
22
Covenant,
to
aspect,
expressed
the
European
include
to
The
the
is
that
the
the
sentence
perhaps
proposed
approach
of
freedom
is regarded
HRC is that
although
of expression
it
is not accorded
the pre-eminence
as important,
given
25
law.
to it
under American
constitutional
11.6
The
general
comment and
examine,
the different
aspects
in
the
matters
censorship,
State
such
26
approach
has
members
in
clarification
freedom
of expression
request
of
This
reports.
as
of
general
registration
has
involved,
and
specific
to
respect
of
revealed
for
example,
banning
or
27
requirements,
been
[for
what]
Continued)
(Footnote
describing
"... the
freedom
Connecticut,
speech
as,
of
indispensable
the
every
of
nearly
matrix,
condition
form
freedom",
(1927).
302 U. S. 319,327
of
other
22 Of.
The HRC's stress
of selfon the importance
in
its
1
determination
article
on
general
comment
in ch. 5, pr. 5.3 above.
(self-determination),
23
discussion
See the
in SR 457 prs. 24-28
and SR
461 prs. 41-49.
24
See n. 1 above.
25
The
Let
See Barendt,
n. 1 above.
To Freedom
Right
Of Speech
[1986]
P. L. pp. 67-82.
Alone,
26
See SR 26 pr.
(Mommersteeg
22
pr.
concerning
application
10 EHRR 158.
U. K.,
10
on
See also'B.
Versus
The
(Vincent-Evans
Tunisia).
censorship
on
For
see
Be
SR 715
Syria);
ECHR
a. recent
A. 12381/86
V.
27
Markesinis,
Right
To
on
Yugoslavia);
CH. 11
control
governmental
28
limitations
forms,
for
armed
example,
restraints30
publications,
applicable
28
29
direction
applicable
forces,
subsequent
rights
limitations
codes
penal
or
31
and
for
SR 89 pr. 41
of
in
to
servants,
penal
reply
responsibility
or
in
offences33
correction,
the
such
on
its
various
particular
civil
embodies
(Esperson
737
groups,
29
prior
for
32
the
law
criminal
blasphemy,
as
or
34
Iran).
321
(Movchan
SR
Netherlands).
on
pr. 27
German
Kosiek
Cf. Glasenapp
and
civil
on West
cases
48
below.
n.
servants,
30
Cf.
13
(2)
Article
AMR
prior
prohibits
censorship.
31
(Tarnopolsky
SR 54 pr. 36
SR 84
on Denmark);
on Madagascar).
pr. 15 (Opsahl
32
in
See the
Convention
See
n. 3 above.
noted
Doc. A/2929
pr. 138.
33
"Concerning
it
19,...
that
many
article
appeared
had been prosecuted
Czechoslovak
citizens
and imprisoned
for
having
to
exercised
or
attempted
exercise
simply
to freedom
their
right
of speech,
and had been convicted
98,100,102,103
Penal
articles
and 112 of the
under
instigation
to
to violence,
Code,
relating
subversion,
laws
the
Republic
the
of
of
and anti-State
violation
her
In
those
opinion,
of the Penal
articles
activities.
freedom
defined
too
Code,
of
expression
restrictively
the provisions
not compatible
of
with
and were therefore
Thus
be
Covenant.
that
the
she doubted
could
persons
have
been
to
for
having
not
arrested
expressed
said
but
for
having
broken
type
that
the law;
their
opinions
lost
if
law
to the
all
validity
argument
of
according
(Footnote
Continued)
CH. 11
35
sedition,
subversive
by
demanded
his
that
11.6.1
under
and
attentions
anti-State
19
have
provisions
of
representative
or
effective
remedies
individual
an
criticisms
State
Yugoslavian
to
article
domestic
Varied
the
and
2(3)
article
rights
36
propaganda,
propaganda,
anti-ideological
738
who
been
claims
37
violated.
have
attracted
the
HRC
members.
The
before
stated
HRC
the
that,
"The
freedom
information
least
and
in
right
separately
in
which,
the
the
in
citizen
and
numerous
the
39
expression.
34
known,
at
less
it
by
to
36
37
38
168
of
39
On article
state
Reply,
SR 222 pr. 32
2 see
Doc. CCPR/C/l/Add.
the Constitution
new
a new
be
right
informed".
with
elements
and
of
the
of
38
the
concern
the
or
ibid.,
has
been
(Tomuschat
a
of
a feature
Government
13.
pr.
See e. g.
dealt
freedom
SR
Ibid.;
In
integration
the
161
(Bouziri
Belize,
pr. 23
on
Cf.
A. 8710/79,
Gay News Ltd.
Dependency).
5 EHRR 123.
U. K.,
35
universal
is
some
concern
freedom
of expression
Continued)
(Footnote
the
of
any criticism
SR 683 pr. 3.
offence",
is
about
such
freedom
conception
of
ideological
specific
with
This
of
conceptions
man
expressed
ideological
specifically
of
classical
aspects
working
HRC
the
of
media
constitutions.
enable
the
of
other
or
with
aggregate,
its
more
S. F. R. Y.
the
enriched
supercession
press
contemporary
of
and
and
expression
as
Constitution
the
press
public
normatively,
political
Members
the
of
was
an
then
a U. K.
And Lemon
v.
on Australia).
on Colombia).
ch. 6 above.
23, p. 28 (1978)
of the S. F. R. Y.
citing
Article
59
pr. 25
CH. 11
of
HRC's
the
Similar
practice.
to
42
Mr. Tomuschat
concerning
the
on
emphasis
State
issue,
this
in
conceived
individual
the
He would
truth.
of
expression
limitation
of
than
opinion
say
of
political
what
he
provisions
seemed
of
the
required
Penal
Code
on
strengthening
views
the
a punishable
and propaganda
by that
formula
and how
meant
44
".
applied?
scope
41
(Bouziri),
Reply
at
Constitution
Partsch,
(Vincent-Evans).
SR 26 pr. 10
,
in
Doc. CCPR/C/1/Rev.
cited
pp. 222-226.
n. 1 above,
See
SR 155
Doc. CCPR/C 1/Add.
pr. 19
34.
The
Ukrainian
of
the
prs. 56-58
(Tomuschat).
53 (Tarnopolsky),
SR 140
pr. 28.
43
44
More
What
offence.
was interpreted
(Prado-Vallejo),
SR 108
See
pr. 39
63
SR 109 pr. 24 (Opsahl),
(Vincent-Evans),
Reply
at SR 112 prs. 34,37.
pr. 67.
other
made anti-Soviet
40
42
inherent
the
against.
which
agitation
137
prs.
was the
freedom
that
was discriminated
opinion
clarification
and
the
gave
thought
that
so
initio
could
be outside
the
ones would
ab
19. How could
the prohibition
of
article
if
discrimination
be respected
specific
substantive
was
speech
It
therefore,
agree,
be subject
to
should
having
to contribute
to
socialist
scope
terms.
not
philosophy,
of
comments
and
simple
to
right
State
general
any
very
were
40
USSR,
particularly
of
to
comments
following
Ukrainian
the
and
representative
frcm
the
representatives
43
Syria.
The
questions
Yugoslavian
made to the
for
example,
made,
41
Hungary,
Romania,
those
739
reply
ibid.,
SR
SR
742
at SR 32
pr. 41.
38 of
See Art
See
1,
pr. 13.
SSR
Report
is
CH. 11
Iranian
The
740
(pre-revolution)
representative
was
discussion
the
prohibition
of
of
questioned
imperial
Monarchy
Revolution
the
Constitution,
and the
45
During
Shah and the
people.
consideration
of
of the
in respect
was expressed
the report
of
of Sweden concern
'on
for
registration
account
of
the
political
system
46
from
Czechoslovakia
The
representatives
were
opinion.
47
"Charter
77"
document.
the
During
about
questioned
the
on
consideration
application
11.7 Where
to
right
ideological
examined
freedom
requested
and
of
the
SR 89 pr. 26
SR 52 pr. 59
(1977).
See
p. 26
42,
Doc. CCPR/C/l/Add.
Series
EUCT,
Sweden,
SR 65 pr. 27
Federal
Republic
the
of
48
question
(occupational
bans).
have
provisions
without
expression
the
restriction
46
48
of
the
of
raised
of Berufsverbot
domestic
legal
explanation
47
report
Mr. Movchan
Germany
45
the
of
HRC members
definition,
applicable
grounds
declared
any
have.
of
the
the
express
closely
clarification
limitation.
of
and
49
(Opsahl).
(Vincent-Evans).
the
also
pp. 24-26
116
A, vol.
Doc. CCPR/C/1/Add.
replies
additional
(1979).
Cf.
Leander
(1987).
(Esperson),
47
9,
in
v.
(Tarnopolsky).
"He
the
of
application
wondered
whether
for
the
was
views
of
one's
Berufsverbot
expression
liberal
to
democracy.
He
wanted
with
also
consistent
kinds
know
communist,
of
convictions
what
- socialist,
kinds
justify
to
Berufsverbot
used
and
what
Nazi
- were
6,
94
it
SR
reply
pr.
professions
and
covered",
posts
of
14-16.
Findings
96
Inquiry's
See
ILO
Anon.,
SR
prs.
at
38
In
FRG,
In
Public
Employment
Discrimination
On
(1987)
Series
FRG, EUCT,
Glasenapp
pp. 26-30;
v.
Rev. ICJ
A,
(1986);
Series
104,
EUCT,
Kosiek
FRG,
A,
v.
vol.
(1986).
105,
vol.
49
".. any
freedom
opinion
of
restriction
on
that
present
convincing
and
proof
a clear
required
be
It
was
danger
not
could
otherwise
overcome.
ban
incitement
to
to use violent
means of
any
reasonable
Government,
but
how
the
peaceful
could
overthrowing
Government
the
of
objective
policies
or
criticism
deficiencies
governmental
of
amount to a threat
exposure
(Footnote
Continued)
CH. 11
the
to
as
community
the
of
(Sweden),
11.8
the
practical
the
possibility
Evans
the
criticising
or
only
of
49
19
has
article
people"
52
as
existing
in
concerned
governmental
manner,
a one
party
HRC have
the
stressed
54
dissent.
For
example,
consideration
to
a guide
institutionalized
an
'Party'
during
commented
of
HRC members
the
in
the
the
of
53
State.
importance
Sir
the
of
of
Vincent
of
report
USSR,
"Article
hold
19 of
of
be
should
"necessary".
50
guaranteed
interference
and
without
expression,
to
subject
Those
Continued)
(Footnote
justify
could
which
(Tomuschat
on Chile).
49
Covenant
the
opinions
freedom
"
by
of
of
peaceful
allowing
well-being
(Nicaragua).
economy"
taken
example
through
members
defence
economic
national
all,
example,
Many
the
application
at
"the
as,
(Ecuador),
service"
interests
the
and
of
50
"the
Kingdom),
security
(United
a whole"
realm,
51
"the
described
and social
feelings
public
A common
regime
been
interests
national
"offensive
for
have
limitations
Such
741
only
such
freedoms
repressive
SR 31 pr. 25
laid
and
right
to
the
right
to
down
that
they
restrictions
as were
which
clearly
36
were
",
sanctions?
(Mora-Rojas),
the
SR 128 pr. 21
(Esperson).
69
(Tarnopolsky
Key
U. K. ).
pr. 39
on
in this
developments
the consideration
of the
area since
been
Order
U.
have
K.
Public
the
periodic
report
second
the Education
Act No. 2 (1986)
Act 1986,
and the s. 28 of
Government
Act 1988.
the Local
SR
51
SR 52
(Vincent-Evans).
52
prs.
SR
pr.
421
9 (Tarnopolsky),
Cf. Leander
v.
pr.
63
43
Sweden,
(Bouziri),
(Tomuschat),
EUCT, n. 46
reply
at
58-59
above.
SR
429
44-53.
53
See
SR 116 pr.
e. g.
(Dieye
SR 272
pr. 30
SSR).
Commission
International
of
(1978).
State,
One Party
54
See e. g.
SR 784 pr. 40
(Opsahl
49
on Byleorussian
See
Kenya).
on
generally,
Jurists,
In
Human
Rights
(Mommersteeg
on Rwanda).
CH. 11
in
inherent
being
dignity
the
and were
742
and
to
essential
worth
full
the
among
were
personality,
in a democratic
society,
rights
human
range
of
experience
whole
the
field.
political
healthy
any
express
his
canvas
ideas
he did
provided
had
measures
it
taken
their
views,
express
by
their
rights
promote
given
and
people
with
the
rise
did
see
the
limitations
that
were
in
terms
propaganda
and
low
countries,
in
political
protection
of
great
and
Union.
Was the
and
criticism
55
SR
108
prs.
in
determining
comment
He asked
said
national
terms
such
not
for
Reply
with
as
change?
".
SR 112
(Footnote
other
by
for
the
sensitive
55
of
the
order
public
unduly
at
could
propagation
such limitations
such
being
and
produce
permissible
and
State
suggestions
56-57.
State
the
whether
be
to
necessary
security
powerful
State
and
and
agitation
was
what
Criminal
Soviet
the
Soviet
the
of
to
as
applied
by comparison
threshold,
be
really
.
expressed
and
political
ideas.
of
50
article
freedoms
the
on
anti-Soviet
of
defamation
of
in
Laws couched
system.
interpreted
seemingly
who sought
ideas
and
The cases
means.
in many countries
be reconciled
could
peaceful
not
had
severe
which
their
propagate
publicity
how they
Constitution
could
in
free
there
persons
much
guaranteed
way
that
in
Union
to
under
socialist
be so
in
Covenant.
He understood
Code
known
against
to
had
be
should
the
his
was well
Soviet
the
been
across
least
and not
but,
was perfect
and
criticism
improvement,
change
and
ideas
by
his
to propagate
seek
Yet
means.
violent
in
been
cases
applying
offer
for
not
of
important
most
No regime
the individual
society,
his
views,
to
development
the
his
human
the
of
in
Soviet
to
See
pr. 34.
Continued)
CH. 11
Members
how
of
legal
the
HRC have
attached
restrictions
and
743
great
limitations
significance
to
operate
interpreted
in
by
How
they
and
whom were
practice.
and
56
discriminatory
How
their
was
application
enforced?
57
State
to
representatives
are often
requested
avoided?
information
statistical
on the availability
provide
and
books,
of
newspapers,
magazines
and other
circulation
58
information
Other
commonly
sought
publications.
59
direct
the operation
of licensing
regimes,
or
concerns
indirect
60
press,
(Footnote
support
or
languages
the
control
or
of
publications,
of
the
variety
the
of
Continued)
98
62
(Tomuschat
SR
pr.
also
(Lallah
on Kenya).
56
authorization
on Yugoslavia);
SR 272 pr. 16
SR 724
on Tunisia),
on Iran),
and
text
to
on Guyana).
59
is
SR 772
Note
there
that
pr. 40.
no
express
licensing
in
to
the
Covenant.
See Doc. A/2929,
reference
126,132,
debate
"during
the
that,
prs.
vi,
which
note
ch.
"public
the
term
the
order"
was interpreted
as covering
to license
of a State
and to
of information
media
rights
importation
the
Doc. A/5000,
material";
of
regulate
10 ECHR.
Cf.
Article
Danish
HRC the
Before
the
pr. 23.
be
that
ECHR
the
stated
not
could
representative
in
television
excluding
as
any
way a public
understood
in
his
that
that,
such
as
and
opinion,
monopoly
interpretation
SR 780
to
the
Covenant,
also
applied
leading
For
34-35.
the
ECHR
see
applications
prs.
Saachi
Italy,
5 D. & R. p. 43;
A. 9297/81,
A. 6452/74,
v.
Sweden,
28 D. & R. p. 204.
v.
X. Association
60
pr. 51
Opinion
(Footnote
Continued)
n.
performances,
cultural
to foreign
newspapers
the
of
activities
foreign
from
the
report
question
expression
newsprint.
indications
of
States
expression.
been
far
For
Comment
on
dispatches
or
consideration
aspects
instance,
of
of
modern
the
as would
to freedom
everyone
merely
reports
freedom
of
that,
to
in
themselves
is
the
of
control
of
right
of
is
the
a way
that
3.
paragraph
expression
so
effective
such
with
in
of
has
attention
because
prevent
expression
confine
freedom
media,
interfere
of
information
the
mass
necessary
for
provided
Many State
19
article
of
little
fact
the
are
media
on
2 and added,
have provided
parties
measures
61
restrictions
country.
to
given
development
Membership
Practice
subscribing
paragraph
all
(Footnote
of
62
periodicals,
General
concerning
that
possibility
correspondents
63
During
agencies.
a given
HRC's
most
restated
"Not
all
not
/44
Guyana
Professor
Tomuschat
the
of
raised
limitations
of indirect
practical
on freedom
of
difficulties
in
as a result
of
obtaining
64
information
Such
invaluable
provides
freedom
the
State
of
practical
of
of
in
The
the
and
foreign
press
expression
11.9
61
li
to
guaranteed
mentioning
under
the
For
The
Continued)
In An Association
Prescribed
7 HRLJ
Of Journalism,
(1986)
See generally
I. Szabo,
62
Cultural
By Law
pp. 74-106.
Rights,
(1974).
(Tomuschat
See
SR
65
e. g.
on
pr. 9
is interesting
It
to note
Czechoslovakia).
the comments
State
from
"There
the
Zambia,
representative
was no
of
ban on the receipt
or purchase
of foreign
and
newspapers
it
though
had
economic
constraints
made
magazines,
for booksellers
them
difficult
to procure
and newsagents
beyond
their
the
when
available,
even
prices
were
and,
SR 776 pr. 40.
means of most Zambians",
63
SR 65 pr. 55 (Prado-Vallejo
on Czechoslovakia),
SR 784 pr. 43 (Ando on Rwanda).
64
do
CH. 11
Constitution
the
regime
precise
in practice,
and
law.
the
or
forth
set
exercise
the
this
of
principle
limitations
The
11.10
comment
development
only
of
an
of
specific
concerned
the
question
monopoly
control
and
and
of
in
HRC's
The
3 of
paragraph
".. certain
which
65
may
article
19 and
restrictions
relate
G. C. 10(19),
notes
on
either
n. 10 above,
to
any
as
an
forms
the
of
in
of
involved
problems
media
1966"67
account
simply
had
and
new
restates
that,
the
right
are
interests
the
prs.
"the
discussion
That
comment
general
well
which
reflected
drafted
Covenant
the
was
since
evolved
into
"the
take
that
comments
should
68
developments
and new dangers
11.11
or
different
the
economic
power
"the
that
situation
a recognition
either
expression,
media",
66
HRC.
the
of
expression
of
mass
addition
expression
and such
determines
the
which
65
right".
in
the
given
general
freedom
of
law
the
practice
affect
between
the interplay
example
aspect
in
which
as
restrictions
the individuals
of
modern
discussion
interesting
of
is
It
right.
freedom
of
and
scope
actual
freedom
rules
know
to
order
expression,
in
needs
the
about
restrictions,
in
which
conditions
other
of
Committee
the
certain
in
However,
freedom
of
information
pertinent
define
the scope of
745
2 and
permitted
of
other
3.
66
UNESCO
See
the
Declaration,
Mass
Media
n. 1
5
The
Nordenstreng,
which
see
on
n.
above.
above,
by
interests
financial
and
raised
private
problems
information
discussed
of
control
media
were
monopoly
drafting
Doc. A/2929,
Covenant,
the
the
during
of
see
137;
Doc.
A/5000,
24.
pr.
pr.
vi,
ch.
67
68
SR 449 pr. 48
(Bouziri).
CH. 11
746
the
However,
community
as a whole.
imposes
party
when a State
certain
restrictions
on
freedom
the
of
these
exercise
of
expression,
may
69
itself...
".
the right
not put in jeopardy
11.12
The
of
or
persons
general
permissible
jeopardize
not
indication
of
of
comment
restrictions
points
in
the
right
itself.
nature
of
the
which
responsibilities"
of
that
72
to
requirements
and "necessary".
the
(a)
specified
(b)
and
reference
to
of
any
of
paragraph
doctrine
that
of
Similarly,
the
on
margin
-of
no
duties
and
freedom
to
no content
be "provided
comment
must
is
there
right
in
restriction
3.73
Finally,
of
they
"special
the
limits
extreme
However,
restrictions
is no
There
grounds
the
stating
exercise
70
carries.
expression
to
the
is
by
given
law"71
scope
sub-paragraphs
is
there
of
no
appreciation
69
G. C. 10(19),
Meron,
n. 10 above,
pr. 4 in part.
n. 1
"It
is
doubtful
that,
that
comments
above,
whether
limit
interpretation
the
will
many
restrictions
on
freedom
the
of expression
which
may be permissible
under
", p. 116.
of Art. 19(3)..
vague terms
70
"Presumably
include
duty
they
the
to
present
information
truthfully,
and
views
" accurately
and
impartially".
See also
E. I. Daes,
n. 1 above,
pp. 53-60.
71
Cf. Van Dijk
5th IACT
and Van Hoof,
pp. 424-427;
opinion,
Daes,
Advisory
n. 60
above;
n. l
above,
'
112-115.
pp.
72
Cf.
Van Dijk
See in
and Van Hoof,
pp. 427-449.
Handyside
U. K.,
EUCT,
Series
A,
v.
vol. 24
particular
(1976).
73
limitations
For
during
drafting
the
suggested
Bossuyt,
ECHR
For
the
n. l
above,
pp. 387-394.
see
ibid.
For the most
see Van Dijk
and Van Hoof,
practice
pronouncement
of the EUCT see Muller
recent
and Others
(1988),
Switzerland,
EUCT,
Series
A,
vol. 133
v.
for
the
fine
applicants
and
conviction
concerning
publications
and the subsequent
of
confiscation
obscene
HRC
those
paintings.
members
offer
effectively
in their
interpretations
when they
often
make it
clear
do
that
they
that
the requirements
not consider
comments
19(3)
have
been
for
article
observed,
example,
of
(Footnote
Continued)
CH. 11
even
featured
and
procedure74
75
O. P.
been
has
his
though
to
747
during
raised
in
important
an
that
there
comment
on article
general
19 and article
between
article
76
Article
propaganda).
racial
19
11.13
It
remains
note
the
next
chapter
deal
with
the
two
and
this
the
general
relationship.
articles
raises
expression.
20
reporting
view
is
no
under
is
dealt
with
restrictions
of
in
in
and
the
20 does
comment
on article
77
The relationship
questions
the
reference
on the
relationship
(concerning
war
20
important
permissible
78
concerning
the
between
concerning
freedom
of
'
Continued)
(Footnote
the
Covenant
"[a]dmittedly,
that
the
provided
exercise
information
be
freedom
to
of
could
subject
certain
of
for
be
which
of the
might
respect
necessary
restrictions
he did
believe
but
or reputations
of
others,
not
rights
"others"
be taken
to mean a legal
that
or
could
entity
body,
itself",
SR 715 pr. 18
the
State
or even
government
(Mommersteeg
on Tunisia).
74
"In
he
19 of the
to article
Covenant....
relation
the
clarification
concerning
margin
of discretion
wished
in
by
State
the
the
of
prohibiting
expression
used
it
its
detrimental
to
which
own
considered
opinions
The
Covenant
the
situation
rather
under
was
welfare.
Although
a margin
of discretion
was admissible,
complex.
kept
be
limits",
it
SR 610
within
pr. 49
must
strict
SSR).
(Tomuschat
on Ukrainian
75
76
77
78
See Hertzberg
v.
Finland,
n. 1 above,
pr. 12.17
below.
pr. 11.18
pr. 30.
below.
CH. 11
Article
19
11.14
Article
19
Optional
has
to
are
charge
other
of
basis
while
Optional
in
Protocol.
The
has
Uruguay
number
of
majority
offered
the
effectively
views
11.15
invoked
Uruguay.
concerned
cooperation
Protocol.
been
the
under
communications
of them have
little
The
Under
748
very
many
the
of
The
the
HRC clearly
views
that
of
establish
for
the expression
of views
violates
punishment
article
justified
by reference
19 unless
19(3).
to
In
article
Uruguay79
P was detained
Perdoma
v.
and De Lanza
on a
"subversive
his
than
in
the
case
and (3)
19(2)
article
"The
charged
itself
with
to
were
article
19
to
19
80
81
and
political
of
(3)
P. M.
Ibid.,
pr. 14.
Ibid.,
pr. 16.
no
connections,
"assisting
similar
the
the
to
their
of
views
(b)
but
the
they
opinion
is
general
therefore
it
before
(L)
(P)
and
in
mentioned
and
Restrictions
could
were
in
not
is
grounds
to
arrest,
that
Committee
no
alleged
association
of
that,
political
were
Information
of
submitted
of
led
terms
view
has
(P)
grounds
the
noting
and
which
views.
political
(a)
or
Doc. A/35/40
on
on
information
on the
detention
and trial
of
freedom
then
expression
(L)
on any
81
(3)".
of
nature
The
conclude
arrest,
justified
Clearly
the
subversive
the
that
charge
Uruguay
sufficient.
unable
and
HRC expressed
trial.
and
views
a
of
engaged
detention
79
the
regarding
in
which
activities
have been
apparently
apparently
80
P.
After
of
Government
evidence
article
on
association",
those
extends
political
detained
was
subversive
to
association"
be
expression
on
covered
allegations
the
by
of
CH. 11
"subversive
are
associations"
749
not
justify
to
sufficient
limitation.
11.16
information
Grille
had
Uruguay
of
the
submitted
the
In
other
morale
Uruguay82
the
no
evidence
the
without
of
cases
the
by
the
court
HRC have
Uruguay
explanation
Uruguay
of
86
the
offences,
and
information
specific
alleged
provide
82
83
84
Doc. A/35/40
Ibid.,
he
in
similar
HRC
that
noted
the
nature
attempt
is
forces
the
proceedings".
to
referred
scope
to
not
alleged
84
charges
absence
and
with
undermine
in
itself
of
any
meaning
of
the
absence
of
factual
basis
concrete
duty
the
Uruguay
on
it
to
alleged
charged
an
if
the
that,
was
of
the
of
85
to
GM was
commented
armed
details
as
regarding
which,
and
activities",
by
in
that
of
copies
explanation
"subversive
the
v.
association
sufficient,
and
parties
information
subversive
specific
State
activities
83
It
then
engaged.
"Bare
more
from
Motta
political
been
have
been
required
In
cases.
has
HRC
The
wanted
to
any
of
to
refute
p. 132.
pr. 17.
Ibid.
85
"To date,
has never
the
State
party
explained
"subversive
the scope and meaning
of
which
activities",
the
a
criminal
offence
under
relevant
constitute
Such
is
legislation.
an
explanation
particularly
in
the present
the author
of the
case,
since
necessary
he
has
been
that
contends
prosecuted
communication
his
for
Carballal
Uruguay,
opinions",
V.
solely
Doc. A/36/40
p. 125.
86
pr. 13.2:
detained
activities.
Pietraroia
violation
and tried
Uruguay,
v.
19(2)
of article
for
his
political
Doc. A/36/40
p. 153,
because
P arrested,
union
and trade
CH. 11
that
allegations
of his involvement
In
Weisz
Weinberger
"The
trade
union
the
lasted"
membership
HRC
his
that,
has
offence
not
the
although
that
the
true
information
newspaper
on
to
opposed
in
membership
lawfully
89
existed
political
the
while
the
expressed
this
contributed
to
had
which
HRC commented
claims
WW had
and
87
Government,
activities
government
party
the
of
communication
that
were
reasons
The
by
the
of
author
the
basis
because
persecuted
activities.
Uruguay88
v.
explained
been
union
factual
concrete
been
had
an author
in trade
750
that
view
there
had
been
19(2)
because
of article
WW was detained
for
disseminated
information
having
to trade
relating
union
90
The HRC also
"[I]t
that,
activities.
stated
was aware
legislation
the
that
under
of many countries
criminal
violation
be deprived
could
offenders
of certain
political
rights.
however,
In no case,
be subjected
may a person
to such
(deprivation
sanctions
of
political
rights)
solely
because
(articles
2(1)
of his
or her political
opinions
91
It
that
seems clear
and 26)".
sanctions
may be imposed
in
limitations
accordance
with
on the
expression
of
opinion
political
19(3),
but
discriminatory
11.17
In
article
87
pr. 11.5.
88
89
90
which
limitations
the
manner
Burgos
Doc. A/36/40
Ibid.,
Ibid.,
n. 86 above.
91
Ibid.,
v.
accordance
must
contrary
only
one case has
19 in
conjunction
Lopez
in
are
not
to
articles
a finding
of
with
Uruguay,
related
with
article
in
operate
2(1)
and
26.
a violation
of
article.
In
Doc. A/36/40
p. 176,
p. 114.
pr. 12.
pr.
16.
pr. 15
See
also
(my emphasis).
Pietraroia
v.
Uruguay,
CH. 11
Burgos
Lopez
had
there
that
(freedom
of
join
trade
and
(2)
in
this
LB's
case
this
founded
the
only
have
Waksman
v.
in
frontiers
imparting
the
course
information
and
Covenant.
the
19
of
an
opportunity
because
the
passport
was
the
19
article
97
In
concerning
v. Finland.
Finnish
Broadcasting
92
93
94
95
96
97
freedom
Doc. A/36/40
Ibid.,
violation
the
HRC did
aspect
of
of
(FBC),
expression
and
19
article
and
Others
that
interfered
information
p. 176.
Doc. A/35/40
Pietraroia
p. 120.
Ibid.
Doc. A/37/40
p. 161.
v.
Uruguay,
the
controlled
pr. 13.
See e. g.,
W's
HRC
the
of
State
had
have
not
alleged
the
article
when
Hertzberg
authors
and
of
in
the
cross
receiving
view
that
Company
to
important
including
authorities,
to
is
Uruguayan
discontinued
was
Hertzberg
Finish
right
in
that
alia,
ability
this
most
(2).
the
seeking,
ideas,
(1).
94
19
inter
to
right
19
article
his
communication
96
renewed.
but
the
of
passport
consider
factual
(article
Unfortunately,
to
Arguably
11.19
date
W argued,
of
been
"persecution"
to
restricted
have
distinguished
what
to
his
his
accompanying
similar
constitute
referred
(1)
19
to
other
of
Uruguay95
and
for
no
interference
renew
had
is
in
violation
only
to
refusing
authorities
their
to
form
articles
considered
not
(1)
persecution
explanation
without
views
In
but
sufficiently
opinions
Similar
no
with
is
22
to
right
view
22
article
the
suffered
93
There
article
case
is
There
cases.
had
activities.
why
of
conjunction
LB
of
violated
by
in
the
expressed
violation
including
unions)
explanation
HRC
the
association
union
11.18
been
because
trade
hold
Uruguay92
v.
751
n. 86 above.
with
by
CH. 11
imposing
against
sanctions
purpose
the
the
the
of
members
Parliament
"general
its
In
of
final
the
of
programmes.
"While
right
the
that
restricted
their
The
HRC continued,
not
every
to
express
individual
himself
basis
can
through
in
99
Company".
contention
under
of
*
FBC
the
policy
the
accepted
rights
the
on
were
the
by
98
involve
not
based
on,
programme
HRC
on
between
of
did
to
of
Code
population
decisions
rules
the
the
of
but
of
the
prevailing
interpreted
as
referred
censorship
views
authors
been
had
that
considerations
the internal
with
accordance
two
groups
with
the
reflect
Finland
programmes
application
to
was
large
argued
the
concerning
(2)
by
and
further
Finland
of
sex
in
conceptions
moral
the
same
or
dealing
programmes
inter
that
alia,
in its
Penal
prohibition
indecent
behaviour
of
relevant
encouragement
public
in,
participants
radio
and television
censoring,
Finland
homosexuality.
argued,
of
752
19
article
two
be deemed
censored
hold
to
a medium
like
a
TV,
is limited,
time
the situation
may
whose available
for
be different
has been produced
when a programme
the framework
transmission
within
of a broadcasting
with
organization
responsible
This
approach
common
sense
the
authorities".
to
a right
of
and is
similar
98
general
100
access
to
approval
to
that
media
under
of
accords
article
the
with
10
Ibid.,
On
the
pr. 6.1.
public
relevance
of
law
for
EUCT,
Tyrer
U. K.,
a particular
see
v.
support
26,
(1978);
EUCT,
A, vol.
Dudgeon
U. K.,
Series
pr. 31,
v.
45,
(1981).
See also
Bowers
A, vol.
v.
Series
prs. 57-58,
106
(1986),
2841
S. Ct.
see
Hardwick,
which
on
Thus
Court
Far And No Further:
The Supreme
J. K. Sullens,
61
Outer
Boundary
The
Of The
Right
To Privacy,
Draws
L. R. (1987)
pp. 907-929.
Tulane
99
100
Ibid.,
Ibid.,
pr. 6.4.
pr. 10.2.
CH. 11
101
ECHR.
were
appearing
that
normally
the
to
the
there
of means of
owners
been prepared
within
has
organization
responsible
authorities.
(2)
19
article
"In
the
morals
to
the
submit
the
that
full
of
complained105
it
was sufficient
the
After
HRC's
on
material
a broadcasting
the
noting
the
of
approval
general
the
of
terms
of
actions
the
the
censored
"necessity"
of
the
assess
it
decided
that
for
complained
requesting
considered
text
invoked
specifically
the
it
the
public
104
of".
parties
programmes
of the
information
its
formulate
to
the
communication
present
has
justifying
HRC could
to
HRC continued,
HRC had
the
of
to
restriction
where
framework
the
Government
as
some
communication
103
context
Finnish
Although
the
be
might
the
with
authors
a means of
communication
102
be published.
The
of
will
that
the
19 a different
content
it would
that
restrict
by maintaining
owner
that
argued
article
material
suggests
view
give
the
what
had
party
used
of
right
decide
State
The
753
so
actions
before
views
as
follows,
"It
has
be
to
differ
widely.
common
standard.
no
Consequently,
See A. 4515/70,
(1980)
18 D. & R.
p. 66
p. 88
Doc. A/37/40
is
There
101
102
first,
noted,
that
universally
in this
X and Association
38 C. D.
at
p. 76;
p. 161,
public
morals
applicable
respect,
Y V. U. K.,
of
86 at
(1972)
p.
,
pr. 4.
103
to
U. K. controversies
On. recent
respect
with
decisions
Political
A. E. Boyle,
broadcasting
see
[1986]
Law,
Fairness
Administrative
Broadcasting,
and
Privilege,
A. W. Bradley,
Parliamentary
P. L.
pp. 562-596;
[1987]
Security,
P. L. pp. 488-495.
And National
Zircon
104
105
under
the
Ibid.,
pr. 10.2.
On the
Ibid.
ECHR see notes
interpretation
20,72
above.
of
"necessity"
CH. 11
certain
the
responsible
The
Committee
decision
national
finds
the
of
appropriate
homosexuality,
According
far
As
106
excluded".
article
11.19.1
is
as
(3),
19
responsibilities
for
article
it
approach
106
107
108
n. 383
the
of
with
those
are
it
(or
has
not
great
108
ECHR.
the
how
wide
or
to
restriction
restriction
applicable
does little
moral
to
its
without
importance
in
the
cases
subsequent
the
of
margin
it will
and whether
to
and from context
determines
true
balance
the
international
and
that
it
is
there
but
standard"
that
HRC's
the
will
the
attempt
"no
HRC's
to
10.3-10.4.
Ibid.,
prs.
Ibid.,
pr. 11.
the
suggest
under
been
Only
be
will
had
there
of
narrow
appreciation)
be
discretion"
of
development
In
authors
"margin
the
of
that
the
of
assumed
under
See
above.
to
programmes
view
rights
the
has
the
taken
approach
between
national
struck
is no doubt
It
implementation.
universally
TV
and
not
be
could
behaviour.
exercise
(2). carries
The
context.
the
are
related
a programme
homosexual
radio
the
of
to
determine
from
in
and
Thought
jurisprudence.
vary
19
introduction
fundamental
discretion
TV
Finnish
be controlled.
audience
cannot
harmful
effects
on minors
cannot
violation
107
19 (2).
The
will
radio
and
discuss
issues
HRC expressed
the
critics
"
jurisprudence
the
as
the
the
particular,
no
far
duties
concerned,
been
as
article
for
provided
Accordingly
of
that
to
to
accorded
question
organs
encouraging
rights
it
special
cannot
responsible
to
organs.
it
that
forums
as
be
must
authorities.
Company
Broadcasting
judged
discretion
of
margin
754
literature
cited
in
ch. 4,
pr. 4.48,
CH. 11
However,
not
question
the
FBC".
On the
of
the
the
programmes
particular,
112
be excluded".
An interesting
by
view
of
"In
my view
and
of
changing.
expression
109
See
and Others
the
which
interpretation
110
111
112
113
the
be
two
with
it.
HRC
the
State-imposed
must
the
for
on
as
audience
and
on
was
opinion
minors
appended
raised
contents
19
(3)
"public
of
are
fact
this
that,
stated
decision
of the
ind,
n. 20 above,
a
similar
a
morals.
p. 161,
(3)
controlled
restrictions
allow
be
other
members of
113
While
agreeing
it
and
conception
to in article
of
judged
the
opinion
and
could
19
effects
Firstly,
points.
recent
Switzeriz
v.
EUCT
took
of public
Ibid.,
the
of
referred
morals"
Mr. Opsahl
themselves
conclusion
important
that
individual
the
on the
homosexuality
110
Moreover,
article
se "be
per
cannot
harmful
of
might
HRC under
"(i]n
the
number
Lallah
TV
and
HRC. associated
with
to
even
organs
restrictions
a programme
could
homosexual
behaviour"111
HRC's
the
wide
not
"it
that,
concerning
indeed.
that
encouraging
for
radio
was
"necessity"
HRC felt
of
national
There
the
of
ranging
acceptable
considered
the bases
margin
of the responsible
facts
the restrictions
very
wide
potentially
the
responsible
wide.
alleged
any information
be
to
appeared
to
decisions
the
presentation
cannot
11.19.2
very
consideration
cursory
imposed
and the
restrictions
be
to
109
morality.
case
the
to
appears
most
that
this
of
accorded
authorities
international
of
facts
the
on
discretion
the
standards
some
establish
755
relative
on freedom
and
should
EUCT in Muller
in
prs. 31-37,
the
on
view
pr. 7.
pr. 10.4.
Ibid.
Ibid.,
and Mr.
pp. 166-167.
Tarnopolsky.
The
two
members
were
Mr.
CH. 11
be applied
so as to perpetuate
It is of special
intolerance.
freedom
of
those
majority.
9 (2) of
Therefore,
It
to
to
reference
difficult
for
the
under
has already
to
117
requirement.
After
will
rights
to
not
that
noting
affected"
interfered
their
with
the
whether
individual
the
to
"It
State
114
115
grounds
is
of
the
HRC's
considering
115
in
raises
the
and
arisen
it
the
point
and
in
open
this
key
raised
the
which
way
and if
justifiable,
of expression,
interference
were
addressed
The
"indirectly
been
so,
concerning
media,
that
clear
nobody
has
any duty
under
-
the
particular
Covenant
to
no
promote
Ibid.
See the
references
in
notes
20,72
See e. g.,
Tyrer
v. U. K.,
n. 98 above;
Rees v. U. K.,
EUCT, Series
n. 98 above,
117
views
necessity
is
view
communication
116
U. K.,
(1986).
application
majority
have
freedom
of
not
article
ECHR.
again
question
really
the
opinion
the
under
the
may
is
concerning
of
that
Code
conceptions
which
the
paragraph
this
the
had
the
of whether
authors
by
laws
in
the
question
questions
access
the
protect
minority
questions
commented
for
criticism
moral
to
Penal
of
expression
law
case
under
minority
116
ECHR.
As
been
Finnish
the
between
relationship
respect
is
promote
as
the
shown that
114
'necessary'
.
prevailing
important
and
laws
be
also
the
echoes
shock
such
or
minority
views,
the
or disturb
conceptions,
justify
it
to
restriction
regards
the
of
moral
must
prejudice
importance
offend,
even if
20
chapter
reference
clearly
that
sufficient
the
of
as
prevailing
19(3).
The
expression
including
reflect
itself
in
756
above.
above.
Dudgeon v.
A, vol. 106,
CH. 11
publicity
for
information
the
media
to
Access
true
criminal
took
Covenant
may be
of
the
of
can
Quite
It
is
opinion
complained
of
who
authors
journalists
might
Ibid.
the
of
is
be partly
118
submitted
40
decide
well
on the
of in
what
of
common
possible
(3)
to
the
even
under
the
all
to
the
apply
shall
are
be
necessary"
I
only
for
to
not
for the
prefer
reasons
possible
that
self-imposed
"public
morals"
they
and
of
Not
publish
the
present
case".
depends
debate
on
public
journalists
their
and
to
publish.
communication
important,
but
that
examined
article
under
while
be
the
neither
can
Therefore
that
on
enforcement
case.
to
law
in
media
between
mass
of
as
State
19
purpose.
relationship
restrictions
118
any
a matter
present
the
article
particular
Covenant".
access
have to
not
censorship,
that
only
do
such
cannot
require
by
as are "provided
superiors
the
to
from
role
such
entirely
escape
than
a larger
extent
apart
express
decisions
The
is
an obligation
is not
It
published.
restrictions.
issue,
one
the
that
general
either
the
by
be under
criteria
such
in
place
controlled
media
it
must be accepted
imposed
restrictions
law or official
externally
the
which
19 (3).
decisions
such
or
which
article
Nevertheless,
expression.
that
sense
of
grounds
always
restrictions
self-imposed
or the internal
of
programme
policy
freedom
threaten
the
spirit
of
may
control
on
than
kinds.
all
is
others
follows
It
of
that
publishing,
media
by
operated
limited
more
may be controlled
be justified
under
is
ideas
and
necessarily
and
freedom
of expression.
It
757
outside
the
purely
article
with
agree
freedom
the
issues
here
19 of
self-imposed
19 (3),
the
on
CH. 11
facts
the
imposed
this
of
to
the
with
comply
be a serious
would
19 if
such restrictions
It
freedom
of
the
expression
law
criminal
of
the
majority
the
of
that
of
of
the
article
20
advocacy
of
raised
Canada.
in
119
on
chapter
119
120
absence
the
clear
to
that
on
of
decision
Doc. A/38/40
See ch. 12,
article
of
enforcement
The
to
the
the
the
approach
in
media
framework
general
approval
justified
by
be
must
be commended,
although
individual
the
opinion
between
article
propaganda
for
or
racial
case
article
the
of
within
with
relationship
national,
The
of
a violation
access
produced
Code.
view.
(prohibition
the
of
clearly
Penal
censorship.
official
denial
authorities
19 (3) is
to article
reference
is not
it
absolutely
different
a
advocates
Finally,
the
organization
responsible
11.20
not
a programme
a broadcasting
were
found
could
in
or
restrictions
provisions
of the
in the
protection
gap
of
context
the
case
758
of
the
HRC
W. G.
and
is
considered
20.120
p. 231.
prs.
12.27-12.31
below.
war
hatred)
religious
J. R. T.
19
and
and
was
Party
in
v.
the
CH. 11
759
APPRAISAL.
11.21
has
The
process.
The
parties,
in
direct
but
of
HRC
views
article
19(3),
concept
of
is
concept
jurisprudence
11.22
In
likely
to
the
HRC.
number
122
123
124
125
provides
articles
opinions
to
however,
is
24,66
See prs.
11.15-11.16
See prs.
11.19-11.19.2
above.
HRC
that
the
the
O. P.
violation
of
the
of
terms
reliaible
fundamental
19
during
introduced
124
a
the
If
"the
guide
role
the
in
the
HRC's
the
most
perhaps
in this
thesis.
examined
dealt
has
little
been
above.
notes
See n. 108
for
to
note
under
reference
respects,
19
article
decisions
discretion".
play
125
have
the
arguments
of
concerning
practice
disappointing
of the
hold
to
The
right
121
ECHR
They
article
to
specifically
of
the
of
by
wide
concerning
on
punishment
"margin
a
under
experience
that
be justified
123
and
only
can
that
stressed
and
leading
interesting
In
article
within
duplicate
19.122
article
have
is
It
differences
the
practice
comment
expressed
of
121
differences
both
in
with
discussions
The
general
19.
article
drafting
the
the
or
expression.
media.
been
have
criticised
of
States
the
has
comparability
of
reporting
and
conceptions
important
some
of
the
critical
the
HRC
19
article
and
members
repertoire
other
of
developed,
way
freedom
of
concerning
has
HRC
consistent
adoption
respect
the
ideological
and
revealed
it
as
on
press
many
under
forthright
specific
up
the
members
concerning
restrictions
the
detailed
constructive.
doubts
-built
close,
between
far
so
diplomatic
of
the
dialogue
and
strong
HRC
by
undertaken
in
the
illustrated
again
analysis
19
of
practice
above.
above.
above.
CH. 11
126
with.
The
considerations
19,
comment on article
"development
the
to
confined
freedom
on
its
of
one
take
to
of
expression.
more
positive
the
is
the
open
official
developments
the
to
Trinidad
parties
130
although
Mr. Mommersteeg,
to
appears
129
this
The "freedom
area.
information
and ideas
of all
and
use
social
other
vital
of
in
terms
government,
the
approach
forms
various
and-
on Finland);
129
the
concerning
For
aspects128
128
progressive
impart
records
increasing
127
Very
and
of
ideological
political,
narrow
and
openness
accessibility
HRC members,
interest
in
newer
receive
seek,
modern
rather
a particular
kinds"
of
of
the
of
apart
760
of
130
groups,
access
documents
public
commercial
computers
and
information,
the
to
media
to
131
,
132
consequent
above.
above.
a rare
example
see SR SR 170 pr. 34
SR 392 pr. 7 (Graefrath
on Iceland).
his
See e. g.,
comments
Tobago)
and
concerning
to television.
has occasionally
This
matter
(Hanga
142
70
Spain);
SR
pr.
on
g.
e.
on Japan).
SR
at
access
767
of
(Opsahl
pr. 7
political
(on
been raised,
see
SR 319 pr. 62 (Hanga
131
(Ando
See
780
SR
See
Denmark).
pr. 38
on
(ed. ),
Held
Public
Access
Government
To
N. S. Marsh
(1987).
For
ECHR application
on
Information,
a recent
information
10454/83,
Gaskin
to
A.
v.
official
see
access
9 EHRR 279.
U. K.,
132
See A. 7805/77,
X. and Church
v.
of Scientology
16 D. & R. p. 68 (1979);
Barthold
Sweden,
v. FRG, EUCT,
(1985);
A,
D. Pannick,
A. Lester
vol. 90,
Series
and
[1985]
And Freedom
Of Expression
In Europe,
Advertising
P. L. pp. 349-352.
CH. 11
for
demand
the
personal
expression
raises
relationship
(which
privacy
134
Covenant).
Similarly
could
well
when
they
133
fundamental
is
protected
the
expression
be usefully
are
State
by
and
by
report
terms
of
of
individual
17
article
"regardless
generally
in
questions
the
amplified
More
of
the
frontiers"
HRC particularly
form
a State
party
the
Council
Europe
Convention
For
The
of
Of
Individuals
With
Regard
To
Automatic
Protection
(1981);
Of
Personal
Date
N. Savage
Processing
and
(2d,
A Guide
Data
Act,
To
The
Protection
C. Edwards,
1985);
I. N. Walden
Data
Protection
N. Savage,
and
and
37 ICLQ
Laws:
Should
Organisations
Be Protected?
Privacy
(1988)
pp. 337-347.
134
See
considering
133
protection.
between
the
11.23
data
761
the
its
comment
general
recently
general
adopted
17 the
"The gathering
HRC stated
that,
and
on article
databanks
information
holding
on computers,
of personal
devices,
by public
or
whether
authorities
other
and
by law.
Effective
or bodies,
must be regulated
private
have
be taken
that
by States
to
to
ensure
measures
does not
life
information
concerning
private
a person's
to
hands
the
of
authorized
persons
not
who are
reach
for
is never
used
and use it,
process
and it
receive,
incompatible
to
in
Covenant.
the
order
with
purposes
life,
his
have the most effective
private
of
protection
in
individual
have
to
the
should
right
ascertain
every
form,
if
intelligible
and
so, what personal
whether,
an
in
is
files,
data
data
what
automatic
stored
and for
individual
to
be
Every
able
also
should
purposes.
private
which
public
or
authorities
ascertain
bodies
their
individuals
or
control
or
may control
data
incorrect
If
files.
or
such files
contain
personal
the
been
to
have
collected
or
contrary
processed
law,
have the
the
individual
of
every
should
provisions
16
C.
G.
to
request
rectification
right
or elimination",
(Footnote
Continued)
In
CH. 11
is
which
which
of
parts
the
a decade
Despite
11.24
the
approaches
the world
over
of
analysis
and methods
adopted
to
give
comment
general
or
negative
methods
used
which
could
parties.
by
parties
other
States
assist
and duties"
rights
by
of "prescribed
11.25
The
valuable
extremely
of
years
basis
consideration
have
they
influential.
Although
general
for
guidelines
by the
required
clear
some
giving
a key
to
profoundly
purpose
been to
on
parties
content
its
by the
HRC at
adopted
6.
Doc. CCPR/C/21/Add.
135
136
Rights
Preliminary
Rights,
Accords,
137
n. l
substantive
have
perform
of
On that
article.
be
predominant
also
comments
of
the
provide
information
function
the
of
articles
Continued)
(Footnote
(32),
1988),
HRC the
The
experience
to
States
is
comments
one.
to
criteria
(a)
and
general
accumulated
appears
the
the
paragraph
potential
date
to
comments
to
components
and
important
the
the
to
sought
"special
the
to
a particular
the
all
HRC's
to
definitional
formulate
of
of
not
content
in
HRC's
the
represent
should
have
"necessary"
and
of
or
approaches
instructive
parallels
giving
key
the
to
opportunity
the
references
Members
and
law"
and
flow
19
article
provide
restriction
permissible
of
137
(b).
free
of
those
of
aspects
Act135
freedom
to
specific
States
for
an
no
Final
and consideration
by States
parties
to
effect
makes
positive
Helsinki
relevant
clearly
international
are
and
136
expression
information.
the
to
a signatory
also
762
above.
See ch. 1,
pr. 1.38,
791st
n. 256
the
literature
on
(March,
above.
See V. Leary,
The
Implementation
Of
Provisions
Helsinki
The
in
Assessment,
T. Buergenthal
International
Law,
And
The
(1977).
pp. 140-148
See
meeting
limitation
Human
Of The
A
Act:
Final
(ed. ),
Human
Final
Helsinki
provisions'in
CH. 11
is
It
concerned.
then
critical
positive
purposeful,
763
that
the
Unfortunately
and
progressive.
19
article
comment
on
general
being
disappointing,
little
comments
both
was
than
more
are
the
weak
and
a reiteration
of
19. Perhaps
the comment was not considered
for a
article
long
time,
the HRC's
characteristic
enough
caution
was
displayed
being
to
limitations
the
abundance,
or
138
in
inherent
being
is
It
consensus
were
evidenced.
interesting
during
to
the
note
discussions
"agreed
that
the
of
however,
concerned,
that
surprise,
freedom
throughout
the
resulted
restricted
in
its
countries
similar
Government
things
comment
general
philosophical
to
contribute
had,
after
The
been
ideologies.
was
avoiding
parties
to
tell
See ch. 2,
pr. 2.7
He
the
of
above.
fact.
other
by the
such
comment
on
advocate
but
position
the Covenant
countries
the
The
silence.
to
of
not
but
that
awareness
was
issue.
their
means
groups
of
by
ratified
and
general
guilty
of
that
the
attempt
or
political
implementation
Committee
138
an
not
everyday
in some
imposed
were
party.
in
problems
expression
in
while
manipulation,
was
all,
varied
very
of
not
mentioned
interpreted
as a lack
the
Committee
a
or
of
part
freedom
were
be
might
mass media
financial
monopoly
ruling
to
fact
the
common
somewhat
seen
the
restrictions
the
or
was
reference
as
such
He,
Mr. Opsahl's
expression
of
of
by
communication
reach
shared
no
was
comment.
He
and
world,
control
to
Mr. Aguilar
of
general
article.
there
affecting
countries
comment
on the draft
was important
it
understanding
merely
following
the
a
to
which
having
the
that
afraid
It
States
asked
difficulties
in
CH. 11
implementing
own difficulties".
its
the
That
The
fundamental
and
largely
work
the
of
HRC seems
19 might
it
within
of article
divisions
United
Nations
within
Its
redress
concerning
140
above.
there
article
skirting
are
of
19 remain
appears
unlikely
the disappointing
freedom
of
round
difficulties
the
implementation
on the
139
was
avoiding
that
suggest
norms
HRC will
be
to
undeveloped.
the
but
Covenant,
139
the
764
fundamental
article
19.
undefined
that
the
record
of
140
expression.
CH. 12
"1.
2.
that
or
201
Article
12.1
Any
propaganda
Any
advocacy
for
war
be prohibited
shall
of national,
incitement
constitutes
racial
by
to
law.
hatred
or
religious
discrimination,
be prohibited
shall
violence
765
by
law".
20
in
hostility
Introduction.
12.2
inclusion
The
Its
controversial.
lead
might
of
the
to
of
censorship,
that
the
and
subjective,
that
the
any
particular
right
effective.
Those
prohibitions
freedom
of
limitation
legislative
and
such
favour
could
opinion
provision
provision
vague
establish
that
in
governmental
were
not
and
was
expression
used
did
Covenant
the
that
the prohibition
argued
be detrimental
to freedom
would
(article
19),
might
encourage
establishment
expressions
article
opponents
abuse
and
opinion
article
freedom
of
of
not
would
prohibitions
the
be
article
argued
considered
as
and
expression,
in article
19(3)
was
necessary
that
not
that
a
the
were not
because
or
be
such
threat
to
general
adequate,
of
the
in
drafting
20 see
On the
particular
of
article
A/5000,
A/2929,
Docs.
prs. 36-50;
ch. vi,
prs. 189-194;
'Guide',
Martin,
John
See
L.
M. Bossuyt,
pp. 403-411.
Diplomatic
Legal
And
Propaganda
Its
International
(1958);
K. Nordenstreng,
Control,
at
ch. 11,
n. 5 above,
Towards
Propaganda
J. B. Whitton
A. Larson,
and
ch. 6;
(1964);
In
J. B. Whitton,
The War Of Words,
Disarmament
Nations
Of Information
Conference
On Freedom
The United
43
Propaganda,
Movement
Against
The
International
And
(1949)
International
"Symposium
the
AJIL
pp. 73-87;
on
(1966).
31 L.
Of Propaganda,
Control
& C. P. pp. 437-634
instruments:
following
international
the
See
also
In
On The
Intervention
Inadmissibility
Of
Declaration
Of
Affairs
Of
And
The
Protection
States
Domestic
The
And
Sovereignty,
G. A. Resn. 2131(XX)
Independence
pr. 2,
Law
Declaration
On Principles
Of
International
(1965);
Among
Friendly
Relations
Cooperation
And
Concerning
United
Accordance
In
Charter
Of
The
With
The
States
first
International
Nations,
pr. 3
of
principle;
Concerning
In
The
The
Use
Of
Broadcasting
Convention
(1936),
(1938),
Peace,
140
186
Of
301
L. N. T. S.
Cause
B. F. S. P. 262.
ivTi
influence
strong
of
on
prohibition
propaganda
propaganda,
would
put
an
specific
end
to
the
peaceful
the
co-existence
and that
had been dealt
in national
of propaganda
question
with
laws
in
international
constitutions
as
well
and
as
3
documents.
instruments
However,
and
substantial
to the article
remained
when it
opposition
was adopted
war
cold
by
is
20
notable
Covenant
the
conduct,
The
is
20
in
of
in
the
that
article
See John
Martin,
General
it
specifically
be prohibited
Under
Article
provision
that
"shall
20
Article
12.3
promote
Committee
Third
the
Article
of
and
war
modern
Reporting
by
is
Assembly
in
the
provision
only
that
requires
5
law".
1961.4
certain
Process.
by the
not
covered
non-derogation
6
4(2).
It has been the subject
of
n. 1 above,
chs. 1,3.
in
See,
L.
John
Martin,
particular,
n. 1 above,
Reference
1936 Convention
was made to the
chs. 5-7.
noted
in
is
for
Propaganda
n. 1 above.
concern
still
a major
(10)
Agreement
States,
II
the
Bilateral
see Article
of
Of Mutual
Afghanistan
On Principles
And Pakistan
Between
The Times,
15th
1988,
Relations,
April
p. 8.
Article
abstentions,
5 "The
20 was adopted
by 52 votes
Doc. A/5000,
pr. 49.
n. 1 above,
to
19 with
12
"shall
be prohibited
by the law of the
words
in
the
State"
to
were
chosen
words
preference
be punished
"constitutes
the law
a crime
under
and shall
State".
It
by some that
the
the
words
was feared
of
be prohibited
"shall
by the
law
State"
the
might
of
the establishment
censorship.
of governmental
encourage
be
Another
that
the
opinion
was
could
not
article
impose
interpreted
States
that
as
suggesting
should
The view
States
that
parties
was expressed
censorship.
be free
deemed
to enact
legislation
they
whatever
would
into
to put the article
Doc. A/2929,
effect",
appropriate
194.
1
On
to
the
pr.
above,
obligation
general
n.
the Covenant
2.
implement
see ch. 6 above on article
6
See ch. 7 above.
CH. 12
general
also
under
comment
to
made
6
(right
40(4)7
article
20
article
in
and
the
life)
to
767
In
reference
general
was
comment
on
the
consideration
of
.8
20 has generally
been considered
State
article
reports
but
have
members
often
commented
on the terms
separately
19 (freetlom
with
article
relationship
of opinion
of its
9
during
and this
question
again
arose
and expression)
20.10
the drafting
of the general
comment on article
article
12.4
In
its
general
"Not
all
of
are
of
the
to
of
adopt
prohibiting
therein.
However,
such
of
the
the
actions
'Furthermore,
information
sufficient
legislation
national
and
give
efforts
the
Covenant.
the
In
States
parties
legislative
necessary
actions
have
reports
are
to
as
20,
article
have
parties
the
appropriate
them.
20
article
nature
measures
some States
law nor are
that,
submitted
information
sufficient
obliged
prohibit
HRC stated
by States
the
reports
provided
implementation
view
comment
to
referred
shown
that
in
by
neither
prohibited
intended
or made to
many
failed
reports
concerning
11
practice".
the
to
relevant
its
by
457th
G. C. 11(19),
the
HRC at
adopted
(nineteenth
1983,
25th
July
on
session)
meeting
in Doc. CCPR/C/21/Add.
2. For
Doc. A/38/40
pp. 109-110;
also
the HRC's discussion
see SR 429,447,448,450,451,454
and 457.
8
in ch. 8,
G. C. 6(16),
Doc. A/37/40
pp. 93-94,
cited
pr. 8.11 above.
9
See ch. 11 above.
10
il
Members
immediacy
reference
referring
"[prohibit]
below.
(my
G. C. 11(19),
n. 5 above,
emphasis).
pr. l
HRC have
the
the
of
consistently
stressed
the
20.
The
of
obligation
under
article
to the "nature"
20 would
of article
seem to be
the
20 to
to
in article
specific
obligation
by law",
see n. 5 above.
CH. 12
12.5
Such
deficiencies
the
HRC
has
led
in
information
the
members
768
to
point
to
supplied
to
out
State
the
the
general
and
specific
ends
of
in
20 and how the measures
article
reported
prohibition
fail
to satisfy
to the HRC by the States
parties
article
inadequacy,
inapplicability,
by
20
reason
of
12
imprecision.
The
ineffectiveness
HRCIs
or
it
20 have
be a
to
of
article
shown
considerations
implementation
the
of
which
raises
provision
representatives
particularly
acute
Neither
conflict.
problems
"war"13
nor
is
latter
term
capable
14
The
absence
of
meaning.
during
difficulty
the drafting
interpretation
of
"propaganda"
are
the
12
See e. c r.,
SR 69
214
(Koulishev
SR
pr. 31
(Graefrath
Italy).
on
Tarnopolsky
SR 213
at
(on
Senegal).
propaganda"
of
very
definition
of
the
and
defined
expansive
caused
general
comment
some
on
on U. K. );
pr. 48 (Prado-Vallejo
Senegal);
SR 257
pr. 33
on
See
the
of
also
comments
"regionalist
pr. 24 concerning
iz
y''
[of
"The
had
been
drafting
HRC]
the
groups
its
for
definition
At
two
the
of
war.
years
on
working
following
he
had
the
thirteenth
session,
proposed
in
"The
"war"
is
definition:
term
understood
a
not
it
includes
sense;
open
conflicts
only
not
restrictive
direct
but
two
between
or
more
any
or
countries
also
intervention
for
in
indirect
armed
country
any
another
in
had
The
the
Group
Working
present
end
reason".
because,
definition
to
not
provide
of
war
a
preferred
it
definition
to
the
the
simply
referred
reader
unless
by
itself,
United
the
take
Nations
task
that
would
given
429
Group
far
SR
too
the
pr. 57
working
afield",
"threat
The
U. N.
Charter
(Bouziri).
the
terms
uses
or
force"
declared
"war".
has
France
than
rather
of
use
"war"
"the
in
20,
term
that
appearing
paragraph
article
be understood
in
to mean war
1, is
to
contravention
of
law
in
that
international
and
considers,
any
case,
legislation
in
is
Human
this
French
matter
adequate",
35,
Status
Of
International
Instruments,
Rights
p.
(1987).
14
See John
Martin,
n. 1 above,
ch. 2.
Lk. 1
20 which
article
the
12.6
20
meaning
Partly
have
there
been
have
number
declarations
interpretative
example
Finland.
regards
its
reservation
as
explained
"When
this
Assembly
its
against
First
of
with
article
for
this
provision
all,
19,
the
expression.
Since
it
vague,
somewhat
definitive
line
opinion
and
propaganda
the
other.
Secondly,
effective
breach
should
against
since,
according
it.
to
law,
criminal
defined.
paragraph
crime
The
1,
or
the
in
the
General
Finland
voted
of
is
to
draw
expression
law,
forbidden
and
in
of
order
be
to
by
the
penalizing
difficulties
cause
would
principles
offence
freedom
propaganda
hand,
one
the
provision
of
the
Finland
of war
difficult
sanctioned
This
that
report
to
lawful
by
prohibition
be
with
everyone
between
the
An
20,
concept
be
would
on
on
punishable
of
ideas,
these
of
reasons.
may come into
conflict
2,
the
Covenant,
of
paragraph
the
and
following
the
right
article
members.
is
members
Nations,
adoption
recognizing
the
United
to
A number
approach
of
initial
In its
article
was dealt
the
of
clarify
HRC
to
provision
would
reservations
from
the
of
of
16
it.
to
criticism
attracted
instructive
taken
769
in
recognized
characteristics
be
must
contained
does
Covenant
in
not
of
accurately
article
fulfil
20,
this
requirement.
15
16
See prs.
12.8
(Tomuschat),
and
12.18
below.
See n. 13 above
(on
France)
Human
Rights
and
States
Status,
The
n. 13 above,
pp. 28-49.
concerned
are
Belgium,
Denmark,
Finland,
Iceland,
Australia,
France,
Netherlands,
New
Sweden,
Luxembourg,
Zealand,
Norway,
(and for
the
Dependent
U. K.
Territories).
CH. 12
the
Consequently,
for
the
an
that
the
effect
(provision)
entire
that
of
removing
of
the
18
was acceptable".
is
in
terms
acceptability
Mr. Koulishev
reservation.
that,
said
"He
they
that
were
Concerning
Among
Helsinki
why
Finland
reservation
to
sure
reference
to
of
the
legality
the
reservation
been
felt
as
in
the
International
And
With
Conference.
but
condemned
Relations
2625
and
especially
of
(G. A. Resn.
not
involved
Accordance
the
of
the
the
Principles
In
Nations
United
had
Friendly
States
Presumably
insurmountable,
war
On
Declaration
He was
difficulties
not
for
propaganda
Covenant.
of
maintained
reservation...
need to implement
the
regretted
the
understood
Act
"Finland's
that,
be
will
17
commented
have
would
reservation
present".
Mr. Graefrath
770
Co-Operation
The
(XXV)
19
Law
Charter
)
and
Of
The
Final
the
Mr. Opsahl,
"asked
a
an
embodied
had
it
found
20,
article
imposed
obligation
necessary
paragraph
on
States,
to
enter
1,
which
and
2 of that
to paragraph
made no reservation
imposes
and was
obligation
which
a similar
20
difficult
to define
and punish".
17
Doc. CCPR/C/1/Add.
18
SR
30
pr. 14.
10,
(I
p. 4 (1977).
have
corrected
yet
article
equally
See SR 30.
"position"
to
"provision").
19
international
obligations
20
SR 30
both
however,
that
pr. 17. Note,
of
documents
concerned
with
are
only
than individual
rather
action.
these
State
SR 30 pr. 27.
The State
replied
representative
had
been
20(2)
Finland
to
that
able
accept
article
it
had adopted
in its
Penal
because
code to
provisions
With the terms
On
of the ICERD and the Convention
comply
Of The Crime Of Genocide.
and Punishment
The Prevention
%..n"IZ
Mr. Movchan
Finland's
of
neither
It
12.7
its
the
and
and
have
generally
12.8
During
that
never
drafters
the
of
the
or
to
and
the
could
of
tanks
attempt
to
clarify
21
22
particular
Movchan
EUCT in
(1988).
by
convinced
by
and
States
criticisms
the
report
of
an important
observation
by article
20,
had
not
as
opinions
or liberation
example,
display
for
war",
ill-defined,
been
the
provisions
whether
propaganda
have
20, he
comments
on article
for
had
of "propaganda
war"
defined.
Obviously,
the
adequately
defence
wondered
made
concept
aggression
of
liberation,
but
of
or
members
proffered
of
Netherlands'
been
the
of
comments
occasioned
the
decision
reservations
always
their
consideration
"Noting
formal
temperate.
difficulties
said
not
legal
the
declarations
regards
Most
consider
assess
any
objections
Mr. Tomuschat
Netherlands
war
as
22
accordingly
been
and
adopted
though
difficulties
on the
not
accept
members
interpretative
declarations.
understood,
parties,
on
jurisdiction
interpretative
least
comment
or
HRC has
the
though
concerning
that
reservations
of
validity
at
to
competent
could
21
then
clear
he
that
simply
arguments.
seems
themselves
even
quite
stated
771
the
what
constituted
differed.
Again,
be
held
The
meaning
as
States
to
parades
rockets.
the
long
as
to
only
a war
defence
or
of
covered
military
or
mind
war
provision
also
public
in
the
of
only
written
extend,
involving
for
the
Committee
should
for
"propaganda
expression
would,
a
he
perhaps
remained
rightly,
SR 30 pr. 39.
See
text
to
ch. 6,
pr. 6.3
Shelton
See
at
n. 8.
e. g.
SR 30 pr. 38.
Cf. The
at
recent
Switzerland,
Belilos
EUCT,
v.
above,
n. 8
the
comments
decision
of
Series
A, Vol.
in
of
the
132
CH. 12
remain
obligation".
to
reluctant
23
As
a number
above
noted
been based
have
on the
on
comment
general
25
below.
the
reservations
of
lack
The
is
"There
therefore,
legally
Government
cannot
the
During
report
Canada
of
under
consideration
of
the
or
with
20
of the
20(1),
article
in
favour
organisation
such
however,
may,
The
propaganda.
without
the
signing
Canada's
article
extent
propaganda
made by
article
dealt
on
the
party26
disseminate
it
commitments
is
which
of
so,
in
States
portent
of
drafting
HRC in
question
do
by
the
prohibiting
individual
An
war.
of
was
law
no
far-reaching
definition
of
20,
article
in the
comments
(1) raised
the important
of a State
responsibility
noted
such
comment
by
encountered
difficulties
12.9
accept
Mr. Tomuschat's
20.24
772
report
breaking
Covenant".
27
Mr. Graefrath
that,
"this
was not
made
of
its
it
the
area
quite
State
of
in
clear
to
with
conformity
that
prohibit
jurisdiction".
it
was
the
Covenant
the
responsibility
for war within
propaganda
28
which
23
See A. Larson,
Status
Of Propaganda
The Present
in
International
Law,
symposium,
In
n. 1
above,
pp. 437-451.
27
dealing
Doc. CCPR/C/l/Add.
43,
vol. I,
pp. 86-87,
in
Federal
Law.
the
position
with
28
SR 206 pr. 32.
is
interesting
It
that
to note
have
the
occasionally
matters
conscientious
of
only
(Footnote
Continued)
CH. 12
It
is
that
submitted
773
Mr. Graefrath's
view
be
must
correct.
(2).
20
Article
HRC's
The
12.10
extended
the
29
to
existence
In
organizations.
Mr. Cairncross,
"For
racist
such
State
Kingdom
fascist
and
to
reply
United
Government
to
appear
confer
that
a power
incompatible
information.
ordinary
country
Parliament
or
because
organization
objection
members,
of
have
20(2)
article
type
questioning
representative,
that,
commented
(Footnote
of
considerations
on
of
the
could
be
with
the
Proscription
times
to
would
contemplate".
its
to
proscribe
racist
character
authorities
abused
be a very
30
the
of
that
and
right
of
an
of
any
would
country
might
freedom
organization
serious
step
for
be
of
in
his
Continued)
been
and pacifist
propaganda
SR 320 pr. 4 (Ermacora
see e. g.,
by
raised
on Japan).
HRC
29
"During
the
Committee
the
on
a
session
of
Racial
the
Discrimination
of
of
existence
a
elimination
in
had
been
found
the
to
Netherlands
Fascist
party
Convention
International
the
a violation
of
constitute
Elimination
Racial
Discrimination.
Did
not
of
a
on the
that
Convention
of
mean
a
automatically
violation
Covenant?
", SR 321 pr. 26 (Movchan).
See
of the
violation
(Graefrath
(Hanga),
60
SR 148
U. K. ).
prs. 46,
on
also
4 ICERD
Article
condemns
propaganda
and
organizations
justify
based
to
superiority
on racial
attempt
or which
hatred
in any form.
racial
and discrimination
or promote
Human
In
United
T. Meron,
Rights
Law-Making
The
See
(1986).
Nations,
pp. 23-35
30
has
SR 148 pr. 75.
The
U. K.
the
right
reserved
introduce
further
legislation,
Human
to
any
see
not
13
Status,
Cf.
The proscription
n.
Rights
above,
p. 48.
U. K.
the
Prevention
by
of
organizations
the
under
of
(Temporary
Provisions)
1984.
Act
See also
the
Terrorism
4 ICERD,
U. K. 's
understanding
stated
of
n. 29
article
in
Rights
Human
ibid.,
above,
- Status,
pp. 116-117.
CH. 12
that
though
Note
propaganda
such
propaganda.
12.11
Members
than
sensitive
it
true,
Soviet
State
34
of
U. S. S. R.
32
the
also
Federal
2
of
of
hostility
violence
should
indicated
report
no
Cf.
mentioned
Article
no
4 ICERD,
Doc. CCPR/C/1/Add.
to
be
that
hatred
discrimination,
by
prohibited
suppression
legislation
any
of
prohibiting
law,
racial
the
n. 29 above.
22.
33
for
religious
or
incitement
or
and the
hatred
and
stated
racial
religious
however,
Legislation,
article
in
the
under
incitement
was not,
German
national,
of
described
of
Covenant
that
constitutes
acts
disturbance
the
specific
consideration
punishable
demagogy,
to
and
by
this
to
the
were
relating
20 of
paragraph
that
2,
paragraph
Article
advocacy
authorised
anti-Semitic
during
that
stated
hatred
covered
years
reply
not
commented
35
F. R. G.,
racial
peace.
that
alleged,
constitute
did
provisions
penal
35
example
33
report
20,
article
34
recent
Mr. Movchan
report
"The
32
to
representative
Similarly
31
sometimes
was
had in
seem
would
propaganda".
to
For
the
of
direct
potentially
20(2).
report
it
as
authorities
what
the
the
of
article
the
of
from
asked,
"Was
point.
in
engaging
refrained
some
by
covered
consideration
not
on
comments
matters
The
certain
organizations
HRC have
the
of
questions
Mr. Opsahl
the
proscribes
31
and
during
20
article
rather
774
18.
reports
Times,
that
suggest
June 1988.
such
ice.
of
advocacy
had
columns
the
for
War
the
the
I7
fomenting
of
imperialism
German
and
included
hatred
national
organization
way
World
Propaganda
the
and
paved
Second
the
hatred.
national
hatred
national
fifth
in
suppression
prohibition
of
Nazi
of
organizations,
and SS-type
was therefore
important.
how the activities
He wondered
extremely
in
be reconciled
Free
Europe
Munich
Radio
could
of
Basic
the-provision
the
Law regarding
of
with
propaganda
intent
to
36
nations"
.
from
State
the
tending
to
undertaken
and
acts
between
disturb
peaceful
relations
however,
there
Again,
reply
was
no
37
representative.
HRC's
The
12.12
of
more
in
this
limited
on
HRC
Comment
Group
consideration
of
article
(July,
1981)
by
by
(March-April,
1982),
Mr. Tomuschat
The
1983).
36
article
37
38
39
above.
on
latter
General
20
and
Mr. Bouziri.
introduced
by
within
practice
operated
of
the
since
20.
On Article
Working
session
drafted
General
38
The
12.13
the
has
which
the
divisions
break
been
examined
of
strong
to
have
articles
drafting
occasioned
making
20
article
other
the
threatened
decision
General
The
20
article
inception.
HRC's
the
However,
and
consensus
of
than
scope
thesis.
Comment
the
considerations
with
produced
thirteenth
document
texts
(fifteenth
and a
(eighteenth
introduced
to
were
session
(1982)
Mr. Graefrath
was
undertook
working
Subsequently
Mr. Opsahl
text
HRC's
the
at
Mr. Movchan
and
Comments39
the
joint
text
session,
HRC at its
"provision"
SR 94 pr. 4.
The
referred
26 of the Basic
Law of the F. R. G.
to
is
SR 96.
See ch. 2,
pr. 2.7
See ch. 2,
pr. 2.6,
above.
n. 145
above,
and
ch. 3,
pr. 3.34
CH. 12
776
40
After
substantial
session.
eighteenth
the General
amendments
some important
1983,
20 was adopted
on 25 July
initial
its
consideration.
included
Comment
three
some
the
at
and
on article
years
eighteenth
after
session
following,
the
"The
introduced
text
The
12.14
discussion
in
obligation
have
States
parties
legislative
nature.
appropriate
in
to
referred
is
the
of a
duty
peremptory
to
to
raised
were
the
adopt
the
acts
prohibiting
41
20".
article
A number
of objections
"peremptory".
It
term
20
article
use
acts
of
the
that
the term was used
argued
in the
different
Vienna
Convention
in a very
on
sense
in the sense that
the Law of Treaties,
namely
a norm was
42
by a treaty.
"jus
and could
cogens"
not be challenged
be replaced
by
that
the
term
It
should
was suggested
but it was objected
"mandatory"
the meaning
that
of that
43
identical.
Some members
thought
that
term
was almost
because
it
be deleted
the
was
sentence
whole
should
44
45
"those
"meaningless",
"superfluous",
and
interpreting
that
that
certain
mandatory".
12.15
Those
that
while
40
41
42
article
43
44
45
46
46
in
all
was
comment
articles
favour
of
the
the
retaining
were
articles
the
Covenant
the
of
of
reach
might
conclusion
were
argued
sentence
mandatory
not
some were
draft
pr. 3.
and
pr. 13
SR 448 pr. 18
The
(Cooray).
(Ermacora).
Ibid.,
pr. 10
(Vincent-Evans).
Ibid.,
pr. 19
(Dimitrijevic).
relevant
provision
is
CH. 12
more
so than
47
others,
the
stipulated
"peremptory"
term
adoption
had
stressed
the
authors
20,50
that
and
countries
believed
promulgate
an act
12.16
article
of
to
corresponded
the
in
a real
they
were
accordance
with
solution
view
are
parties
legislative
to
the
(constitute
(cannot
with
47
48
pr. 12.4
49
50
51
52
for
the
53
54
Ibid.
above.
pr. 22
See
pr. 12.2,
text
(Hanga).
Ibid.,
pr. 24
(Graefrath).
Ibid.,
pr. 25
(Bouziri).
SR 447 pr.
here
is
produced
discussions.
HRC's
States
necessary
actions
in
prohibition
these
to
in
prohibitions
53
19)
article
contradiction
(Prado-Vallejo).
pr. 17
n. 5
the
corollary
as being
Ibid.,
G. C. 11(19),
full
text.
the
the
Committee
considered
54
19)".
article
Ibid.,
the
the
with
20,
article
of
the
continued,
a necessary
be
of
measures,
adopt
terms
comment
of
the
20
prohibiting
the
opinion
delete
52
therein".
stating
20 the draft
"In
to
to
to
article
of
obliged
After
article
nature
obliged
20.51
point
appropriate
measures
referred
12.17
the
of
article
was
which
48
the
49
law,
of article
because
many
not
essential
under
of
need
adopted
the
one
concept
nature
met
and combine
sentence
second
immediacy
the
of
obligation
for States
to take
necessity
"In
mandatory
sentence
the
Ultimately
the
that
777
pr. l.
above,
draft
to
n. 5
See
pr.
above,
and
12.4
above
draft
text
the
pr. 2.
2, draft
pr.
facilitate
to
2.
This
second
understanding
of
CH. 12
Some
difficulty
article
19.
was
There
between
relationship
by
occasioned
was
778
some
articles
this
debate
on
the
19
20
in
and
20
was a restriction
or
1955 on the bases
for
of "respect
article
"protection
of others"
and the
reputations
56
"special
the
part
of
security",
article
whether
the
which
responsibilities"
19
article
(2)
carries
of
application
"...
exercise
it,
or
with
all
members
declarations
and
the
concerning
and
all,
had
war
58
provisions.
this
element
"In
the
The
of
55
Partsch,
article
article
p. 230.
56
57
and
anxious
not
to
on
the
or
rights
in
rights
case
the
of
formula
more
the
of
theft
or
some
the
parties
19
article
20
and
the
of
adopted
to
of
States
consistency
finally
to
relation
meet
of
between
are
fully
compatible
expression
of
Committee,
the
of
as
which
clearly
these
two
states
required
the
with
in
contained
carries
59
responsibilities".
with
right
article
it
special
of
19
(Cooray).
SR 450 pr. 10
(Bouziri).
59
limitation
the
crime
reservations
opinion
58
(on
were
exercise
duties
of
consistency,
prohibitions
freedom
of
the
terms
of national
duties
and
of
no
than
relationship
them
assure
correct
19 at
article
for
propaganda
freedom
of
expression
57
freedom
of action".
Above
to
reference
G. C. 11(19),
(on
n. 5 above,
Finland),
pr. 2.
pr.
12.10
above
uh. 12
It
is
treaty
interpreted
with
are consistent
12.18 The draft
"The
text
resulting
under
while
aggression,
of
advocacy
that
national,
country"*
doubts,
Various
aims
60
provisions
of
2
in
at
to
all
view
to,
or
peace
or
is
directed
act
of
with
racial
incitement
violence,
or
propaganda
its
1 extends
paragraph
paragraph
constitutes
hostility
possible
continued,
made
propaganda
in,
breach
a
of
If
another.
one
prohibition
forms
must be correct.
in a way that
this
that
submitted
must be
779
or
to
against
hatred
religious
discrimination,
particular
destabilizing
when
such
another
raised
were
suggestions
and amendments
61
"Destabilizing"
term
this
to
was a broad
sentence.
62
"propaganda"
legal
at the end
precise
meaning;
no
with
"advocacy"
be replaced
so as
should
with
of the sentence
distinction
by
the
the
to
made
subtle
maintain
63
One member wanted
to
drafters.
reference
an express
from
by States
as distinct
and governments
propaganda
individuals
the
and
or
written
demonstrations
happy
propaganda
introduced
60
spoken
of
aims
an
word,
armed-force.
the
with
forms
than
other
and to
for
threatening
example,
64
Another
member was "not
organizations
at
"in
phrase
destabilizing
element
aimed
draft
particular
another
more
when
such
which
country"
inter-State
at
pr. 2.
61
SR 447 pr. 9
(Dimitrijevic).
Ibid.,
pr. 14
(Cooray).
Ibid.,
pr. 21
(Vincent-Evans).
CH. 12
65
relations".
definition
propaganda
(reference
Charter,
the
67
the
and
all
to
sensitive
the
and
of
act
of
to
the
65
66
68
force.
of
violence,
Ibid.,
acts
70
following
whether
pr. 38
SR 447 pr. 16
Nations,
39
the
of
197068
and
Definition
small
of
countries
aggression,
Finally
undeclared
HRC reached
the
1 extends
paragraph
breach
the
of
directed
racial
incitement
pr. 34
of
of
a manner
United
the
threatening
or
is
in
text,
under
Charter
SR 450
(Tarnopolsky).
67
or
forms
all
desirability
and
Declaration
on
1,
of
2(4)
concerns
aggression
constitutes
or
the
propaganda
national,
the
Resolution
threats
paragraph
of
Relations
prohibition
forms
of
attempted
paragraph
force
use
articles
Friendly
on the
consensus
"The
or
Charter
to
made
use
by
covered
threat
the
Nations
69
and
United
the
on
need to take
account
66
forms
the
of war,
the
with
the
Aggression,
wars
to
was
debate
some
propagandas
to
of a reference
inconsistent
was
the
of
extended
which
of
There
780
or
to
of
or
resulting
the
peace
United
religious
discrimination,
propaganda
all
in
an
contrary
Nations,
against
such
to
while
advocacy
hatred
of
that
hostility
or
advocacy
(Tomuschat).
(Movchan);
and
see
SR
447
pr. 49
(Mavrommatis).
See n. 1 above.
that,
The 1970 Declaration
states
constitutes
"A war of
the
aggression
against
a crime
for
is
there
which
under
responsibility
peace
law"
1).
(paragraph
2 of
international
A
principle
in
the
U. N.
Definition
provision
appears
of
similar
Aggression,
n. 69 below.
69
G. A. Resn. 3314 (XXIX)
of 14 Nov. 1974.
70
SR 450 prs. 37,40
(Bouziri),
41 (Dimitrijevic).
CH. 12
has
State
12.19
by
which
aims
concerned".
most divisive
The
provisions
of
to
obstacle
for
peoples
amended,
"because
the
Strong
to
the
from
the
struggle
of
themselves
but
for
such
last
phrase
of
the
for
peoples
independent
The
Sir
of
led
Vincent-Evans,
opposition,
"He knew
in
"
United-Kingdom,
be
from
propaganda
struggle
of
63
not
did
the
in
the
an
should
20
independence".
and
self-determination
expert
to
emerged
form
not
struggle
independence].
or
to
of
the
article
of
obstacle
respect
provision
self-determination
opposition
"or
to
self-defence
an
in
do
and
the
that
to
form
64
0
sentence,
[or
provisions
obstacle
for
peoples
actions
20
article
the
encountered
arose
self-determination
an
could
which
to
external
difficulties
self-defence
thought
Mr. Ermacora
or
the
of
this
internal
are
62
the
the
781
that
United
reasons
that
Nations
for
it
decolonization
very
few
such
a wording
62
was
countries
parlance
in
process.
accepted
a generally
the
and
earlier
However,
were under
be taken
might
understood
history
of
at
colonial
as
phrase
an
the
the
time
when
domination,
invitation
to
before
this
G. C. 11(19),
n. 5 above,
pr. 2. Just
"observed
that
the
Mr. Tomuschat,
was adopted
sentence
in
breach
been
defined
had
the
of
of
never
peace
concept
however,
Nations
In so far,
the United
as it was
system.
to be understood
as the result
of an act of aggression,
it
but
the
he could
text,
not
should
endorse
proposed
by
forms
interference
the
to
covered
all
of
extend
Note
SR 450 pr. 57.
also
provisions",
non-intervention
Declaration
the
Inadmissibility
the
of
on
pr. 2 of
23(2)
A. F. R.
Intervention,
n. l above,
and article
63
SR 429 pr. 36, draft
pr. 2.
64
SR 447 pr. 5.
CH. 12
to
minorities
use
self-determination
approach
Rights
should
Committee.
lives
of
be
not
of
war
and
commented
by
encouraged
form
Any
same ends
Tomuschat
Professor
and
civil
independence.
and
individuals
the
achieving
force
armed
attain
782
to
Such
an
Human
the
was
a threat
to
means
65
of
peaceful
be sought
should
war
that,
disputes
that
was his
conviction
and struggles
independence
be
for
by
should
settled
peaceful
he admitted
be
that
there
although
means
might
in extreme
but
to violence
recourse
circumstances,
"It
Committee
the
not
or
the
Armenians
Kurds,
to
example,
be consistent
Nations
take
set
Consultations
12.20
to
to
for"
with
right
of
out
with
to
a proposal
obstacle
self-defence
"do
prohibit
self-defence
or
and
Vincent-Evans
"That
wording
to
resort
and
national
meant
to
racial
self-determination
with
Sir
66
Activities
United
pr. 290.
67
to
Ibid.,
pr. 20.
Vincent-Evans,
Ibid.,
In
States),
the
of
words
the
8-9
for
text
working
"do not
of
67
a people
but
propaganda
hatred
had
also
order
independence.
(Tarnopolsky).
to"
peoples
Again
this
from
in
Mr. Errera
also
ibid.,
pr. 41.
peoples
sovereign
opposition,
that
must
group
from
an
of
the
of
the
right
of
independence).
See also
Military
pr. 35.
And
Against
Nicaragua,
Merits,
I. C. J.
Reports,
SR 448 prs.
Sahara,
struggle
advocacy
and
the
the
United
of
2(4)
the
of
philosophy
in
article
attracted
strong
in particular,
proposal
the
of
urging
Committee's
The
the
or
not
only
people
members
replace
(self-determination
65
the
be
to
appear
up arms.
with
as
66
Charter
led
must
the
Sir
right
to
not
advocate
to
achieve
That
was
expressly
agreed
And
Paramilitary
(Nicaragua
1986,
14
p.
v.
at
Ln.
idea
monstrous
Covenant
It
12.21
was
insertion
difficulties
members.
fierce
the
of
to
by
suggested
However,
the
possible
included".
so
71
"He could
not
of
right
promoting
hatred.
violence
The
or
right
in
be
the
peoples
struggle
themselves
for
that
was
"peaceful"
national,
not
the
Charter
and
the
always
be
not
who defended
or
religious
self-determination
the
competence,
to decide
would
it
since
how
to
using
self-determination,
but
Covenant
depended
right
was exercised
in which
a particular
"peaceful"...
the
thereby
was
racial
to
not
and
should
someone
to
right
peaceful
peoples
word
Committee's
the
of
of
conditions
72
itself".
include
the
solve
self-determination
the
upon
found
the
exercise
that
to
enshrined
way in which
the
the
word,
believe
peoples
the
the
minority
of
itself
encountered
interesting
some
revealed
should
the
might
small
Unfortunately,
violent.
that
of the relationship
of members
70
1 (selfdetermination),
view
self-determination
was
the
everything
Ermacora
suggestion
20 and
that
was desirable
"It
"To
Professor
which
on
perspectives
between
articles
68
achieve".
by
this
opposition
to
"peaceful"
word
encountered
69
/s
contrary
and
intended
was
Lz
people
be
beyond
was
for
their
conduct
violence
if
68
to the
SR 450 pr. 59. Sir
Vincent-Evans
referred
in
"show
the Lebanon
that
to,
could
a people
situation
in
be
to
to
violence
and
engage
encouraged
resort
not
its
in order
to
to exercise
terrorist
right
activities
and independence".
self-determination
69
SR 451 pr. 2.
70
Covenant
71
72
On self-determination
see ch. 5 above.
Ibid.,
pr. 5
Ibid.,
pr. 21
(Prado-Vallejo).
(Prado-Vallejo).
under
article
of
the
CH. 12
It
was
necessary.
"independence"
word
for
fighting
were
Tomuschat
Professor
"Nobody
made
its
the
the
Nevertheless,
between
the
the
of
question
was
article
20 of
in
contained
prohibition
to
right
distinction
recognition
The
enforcement.
lucidly,
problem
challenging
determination.
be
to retain
the
essential
States
since
some independent
73
their
survival".
equally
explained
was
784
selfhad to
right
and
whether
the
the
Covenant
be attenuated
when the attainment
of certain
Did the Committee
to
sought.
wish
ends was being
for war was permissible
that
propaganda
with
affirm
independence
for
the
to obtaining
and that,
a view
was to
the
purpose,
advocacy
hatred
was also
religious
of national,
lawful
and
same
Some
Committee
the
of
the logical
members
those
were
were
implications
racial
legitimate?
or
that
afraid
of including
a
to
the
of
self-determination
and
reference
right
in the context
independence
20.
of article
The sentence
ambiguous.
as it
was extremely
stood
Mr. Al
Douri
that
it
to
propaganda
Assembly
order
created
to
had
Professor
missed
73
74
the
conclusion
the
a rule
of
to
customary
resort
independence?
attain
how
the
Committee
on
74
it".
before
12.22
the
for
armed
struggle
Covenant
20 of the
However,
article
"any propaganda
for
What kind
of
war".
General
for
the
Had
meant?
war
was
permissible
was
drawn
apparently
legitimized
independence.
referred
had
Tarnopolsky
point
Ibid.,
pr. 20
Ibid.,
prs.
of
(Al
11-12.
to
Douri).
whereby
it
in
struggle
depended
Everything
armed
interpreted
argued
draft
the
law
the
that
the
paragraph
sentence
objectors
2. After
CH. 12
to
referring
1 of
article
"
In
if
States
not
the
advocated
right
the
of
members
right
to
would
lead
to
preferred
20 do not
article
"The
words
was
stating
for
laws
self-defence
or
independence
and
racial
to
take
sentence
the
words
prohibit
provisions
was
up
to
article
not
That
provisions
of
of
" to
the
in
any
...
20 do not
". What
his
advocated
taking
up
hatred
in
for
meant
who
to
at
the
In
necessary.
the
arms or national,
racial
or religious
did
fall
the
not
within
provided
exemption
the
discussion,
sentence
which
now under
only
that
persons
and
advocating
independence
be advocating
hatred.
The
or religious
76
be retained".
therefore
considered
76
was
of
self-determination
75
immediately
was
consideration
given
someone
granted
the sovereign
way prejudice
right...
issue
interpretation
be
to
was the
laws which
the Committee
claimed
were
opinion,
all
opinion
arms.
under
"The
advocacy
of
his
In
which
the
or
acceptable
further.
right
what
and
"
go
He
meant.
of
that
self-determination
however,
not,
Surely
would
was
national,
Committee?
He personally
Charter
Committee
right
advocating
hatred.
religious
U. N.
self-determination
thereby
was
the
sovereign
of
the
to
asked
provide
for
war and the advocacy
of
hatred,
laws
religious
such
that
as meaning
someone
who
were
racial
and
interpreted
national,
the
it
propaganda
prohibiting
were
before
text
56 of
he continued,
Covenant75
the
the
that,
55 and
articles
785
to
war
original
or
self-defence
should
national,
wording
and
be
not
racial
should
Ibid.,
Mr. Tomuschat
to
prs. 17-18.
was prepared
interpretation
this
ibid.,
the
text,
of
accept
pr. 22,
Vincent-Evans,
"could
Sir
but
the view
that
not
share
(Footnote
Continued)
CH. 12
Tomuschat
Professor
12.23
to read,
sentence
"Advocacy
of
the
of
right
as
cannot
by the
of
such
suggested
sovereign
right
of
was
objected
"unacceptable
and
the
illogical
the
self-defence
or
self-determination
as being
prohibited
77
20".
article
that
of
amending
to
all
peoples
be interpreted
provisions
it
However,
the
786
wording
because
was,
it
was
obvious
had not drafted
the authors
that
of the Covenant
an
78
be incompatible
which
would
article
with
others"
.
"paragraph
1"
Bouziri
that
the
Mr.
suggested
words
"article
be inserted
20" so as to
the words
after
should
79
Sir
Vincent-Evans
any misunderstanding.
avoid
argued
half
the proposal
that
only
solved
of the difficulties
because
the
1,
to
does
adopted
the
In
in
the.
proposed
final
the
solution
which
(Footnote
the
note,
refer
only
light
78
79
80
81
of
sentence
however,
to
the
sentence
have to
might
minority
that
could
the
20,
protracted
it
be
20,
paragraph
80
is
It
text
finally
unacceptable.
article
draft
was
paragraph
discussions
to
over
that
suggested
recourse
it
express
1.81
position
the
footnote
or
Continued)
the
sentence
should
interpretation
of its
General
the
meeting.
benefit
of those
who
it
was therefore
and
ibid.,
pr. 25.
77
to-article
reference
rendered
still
important
12.24
continued
Ibid.,
pr. 36.
Ibid.,
pr. 39
be
basis
the
adopted
of
on
an
in the course
meaning
expressed
of
formulated
for
the
comments
were
were not members of the Committee
to
text",
the
essential
clarify
(Aguilar).
pr. 17.
below.
CH. 12
summary
of
members
for
search
because
resort
a consensus
"confus[ing]"83
a
command
represent
to
continued
and
precedent
"would
the
put
implied,
it
since
it
which
it
If
was
by
accompanied
would be ridiculous".
an
time-honoured
of
United
Nations
That
keep
of
12.25
the
the
The
"The
text
Nations".
finally
provisions
prohibit
to
open
of
advocacy
phrase
interpretation,
then
reads,
20,
84
85
(Movchan).
86
SR 451 pr. 49
Ibid.,
SR 454
pr. 52
pr. 43
(Hanga)
the
in
universally
in
United
the
but
the
would
language
1,
do
SR 454
not
to
right
sovereign
the
of
document
paragraph
82
83
the
Charter
the
the
by
been
within
of
qualified
with
primary
article
by
sentence,
comments
86
adopted
achieved
that,
the
had
to
which
accordance
the
Committee's
United
have
would
was
Nations",
which
left
still
Charter
terrorism.
and
the
of
in
to
sentence
was
sentence
end
law,
accepted.
Nations
the
of
being
international
the
Chairman
the
of
United
the
position,
it
text
phrase
Charter
difficult
stood,
would
a counter-reservation,
85
the
at
adding,
and
a
the
would
"unfortunate"84
violence
acceptable
the suggestion
adopting
latter
half
"the
However,
which
footnote
that
endorsed
as it
be
Ultimately
to
a contrario,
published
text
in
Committee
referred
82
discussions.
Committee's
the
787
prs.
38
(Bouziri).
(Aguilar)
See
also
SR 454
SR 457 pr. l.
1970 Declaration
Both
the
1974 Resolution
on Aggression,
n. 1 above,
also
of the U. N. Charter.
the supremacy
pr. 58
and the
confirm
CH. 12
the
or
self-defence
right
of
independence
and
self-determination
the Charter
with
United
the
of
788
to
peoples
in
Nations".
accordance
87
in
five
is
that
there
noted
chapter
already
between
States
disagreement
on the
permissibility
of
in
force
to
the
assist
attaining
of
selfusing
88
determination.
We have
General
The
12.26
joining
draft
two
"For
advocacy
and
policy
in
public
therefore
done
yet
not
fulfil
(and
one
the
Covenant
its
powers
and
the
to
contrary
an
The
parties
appropriate
Committee
have
which
the
the
first
Mr.
Ermacora
because
was
States
to
appeal
that
commented
of
of interest.
"sanctions"
to
are
propaganda
measures
necessary
in article
20,
contained
from
refrain
such
any
89
advocacy)".
point
to
take
discussion
reference
exceeding
States
should
that
for
that
there
effective
therein
violation.
by
concludes
amended,
clear
of
themselves
or
it
providing
obligations
should
Committee's
raised
so
the
propaganda
The
and
case
believes
sanction
20
article
a law making
as described
be
to
on
sentences,
slightly
20 to
become
fully
article
ought
to
Comment
question
not
as
of
above
sentence
the
to
objected
Committee
was
by
the
authorized
90
it
He
was doing.
declared
something
being
free
from sanction,
unlawful
in
"raised
Covenant
the
the
whole
position
of
law.
domestic
The draft
merely
comment represented
intellectual
by
the
an
exercise
undertaken
Committee
87
88
89
90
and,
G. C. 11(19),
See ch. 5,
in
his
n. 5 above,
pr. 5.19
Ibid.
SR 451 prs.
country's
70,76.
above.
pr. 2.
case
at
any
rate,
CH. 12
Mr.
at
role
was
government
91
so".
had
Opsahl
the
discretion
of
the
"Even
the
Committee
in
imperfect
of
sanctions
himself
such
as
of
they
were
specify
the
should
state
final
addition
that
text
type
that
adopted
sanction".
appropriate
of
some
the
The
were
to
those
or
did
exist".
retained
The
final
types
other
Mr. Errera
prohibition
He
of
was
not
indicating
Committee
countries'
kind
some
but
in
for
that
There
sanctions
with
fully
article
methods,
possible.
the
however,
newspapers.
such
was
accordance
opinion
censorship
certain
advocating
indicate
The
its
in
in
was,
of
do
not
terms,
be
would
or
of sanctions
but he posited
positive
necessary.
publication
that
more
were
92
mentioned,
the
party
express
sanction
of
State
it
adopt
choice
implementation
"effective"
to
Committee
The
to
entitled
the
law
Covenant.
the
that
of
an
free
entirely
agreed
789
its
should
not
text
but
reports
should
93
the
to
reference
phrase
of
the
"an
last
in
parenthesis
above,
was added to the draft
sentence,
introduces
the
text
at
session
eighteenth
and adopted
in the plenary
Committee.
any discussion
without
91
92
Ibid.,
pr. 85.
"Mr. Errera
in most countries
if
pointed
out that
in
by
law
those
was
prohibited
engaging
such
conduct
liable
to
The latter
were
normally
sanctions.
conduct
form
the
take
the
to
of
a fine
obligation
or
might
the victim",
SR 451 pr. 65.
recompense
93
Ibid.,
laws
On imperfect
pr. 71 (my emphasis).
[19821 A. C. 546 (H. L. ).
v. Lavin
see Albert
CH. 12
Article
20
12.27
Article
to
20
Mr. T
has
J. R. T.
the
to
A member
the
of
the
dialling
of
leading
the
Bell
public
relevant
the
recorded
international
of
content
dangers
into
world
Party
dealt
Telephone
telephone
number.
unemployment
and
policies.
by
messages
basic
The
"of
the
Jewry
inflation
95
and
(1)
of
the
service
of
The
curtailed.
and
Party
to hold
right
interference
the
their
v.
Toronto
was to warn,
messages
finance
and international
Mr. T were
severely
to be victims
Mr. T claimed
of
Party
in
system
the Party's
promote
listen
to the
could
wars,
one
W. G.
Party
and
has
tape-recorded
used
of world
values
and principles".
and the collapse
3 and 13
By application
12.28
of
sections
1978 the telephone
Human Rights
Act
Canadian
the
in
with
and
membership
attract
been
only
the
and
linked
Protocol.
Optional
decision,
admissibility
94
Canada.
messages
The
Under
790
and
in
opinions
without
19 (1)
the
Covenant,
of
article
of
and the
violation
to seek,
to freedom
of expression
and of the right
right
impart
information
ideas
kinds
and
and
of
all
receive
in
the
their
choice,
through
violation
of
media
of
96
(2)
19
Covenant.
the
of
article
7 of
Office
Act
the
Post
Pursuant
to
12.29
section
maintain
(Canada),
forbids
which
Mr. T
material",
proscribed
Mr. T claimed
from
has
receiving
that
this
inter
submitted,
party
94
Doc. A/38/40
95
96
97
pr. 2.1.
Ibid.,
pr. 1.
its
of
or
sending
violated
alia,
any
article
that
been
1965,
May
since
also,
"scurrilous
mail
19.97
the
in
Canada.
The
State
impugned
p. 231.
Ibid.,
In
transmission
the
to
the
objections
admissibility
the
State
the
party
noted
communication
17
ibid.,
the
Covenant,
of
article
of
relevance
General
Comment
the
See
article
on
6, pr. 8.
Doc. CCPR/C/21/Add.
the
of
possible
pr. 6.3.
17,
CH. 12
did
provisions
not
the
contravene
20(2).
to article
gave effect
12.30 In respect
of the alleged
(1) and (2) by application
of
Act
HRC was of
the
"[T]he
opinions
through
the
Covenant
therefore,
claim,
the meaning
99
the
appears
19
articles
with
consistently
17 and
in
a violation
extending
received,
articles
98
Ibid.,
Human
to
seeks
the
application
the
Rights
disseminate
be
and
20
must
100
be
A
terms
the
3 of
the
one.
interpreted
As
prohibition
of
20
article
19.
article
violations
possible
the
logical
the.
of
article
to
with
of
provisions
of
other.
of
of
HRC accepted
"[T]he
each
accordance
respect
19 by
19
article
system
within
above
In
Mr. T
which
Protocol".
established
found
cannot
fact
that,
decision
submitted
of
Canadian
the
with
Optional
12.31
violations
incompatible
Covenant,
HRC's
in
but
98
opinion
telephone
Covenant
the
clearly
constitute
hatred
Canada
of racial
or religious
which
(2)
20
the
obligation
under
article
of
In the
Committee's
to prohibit.
opinion,
is,
in respect
the communication
of this
advocacy
has
an
The
the
791
Post
Office
the
prohibitory
of
Act
article
(Canada)
that,
broad
as
scope
it
raises
17 and
does
of
to
all
mail,
whether
order,
sent
of compatibility
a question
101
19 of the Covenant".
or
with
pr. 6.2.
99
3 of the O. P.
Ibid.,
pr. 8 at (b). On article
4.44-4.86
4,
On
the
prs.
above.
subsequent
ch.
see
in
Canada
Re
Taylor
Canadian
And
see
et
al.
proceedings
Human Rights Catmission et al, 37 DLR (4th) 577 (1987) :
Canadian
Human
Rights
the
Act
13(1)
a reasonable
of
s.
freedan
in
the
of
expression
section
limit
guaranteed
on
And
of Human Rights
2(b)
of the Canadian Charter
Freedoms.
100
See p r. 12.17
See also
above.
pr. 12.9
(Canada).
propaganda
war
101
Ibid.,
pr. 8 at (c).
above
on
CH. 12
this
However,
comply
with
102
claim
domestic
Ibid.
was held
remedies
inadmissible
(article
792
for
5(2)(b)
failure
O. P. ) .
to
102
CH. 12
20:
Article
12.32
APPRAISAL.
This
in
20,
ICCPR
40(4)
applicable
ICCPR,
the
during
the
The
its
up
of
and
specific
the
the
Working
Group
articles
have
that
the
the
decision
the
and
comments
HRC and
an
104
105
of
the
must
103
the
of
purposive
implementing
be
important
be
20.
judged
assessment
has
is
possible
practice
have
above.
of
Committee
the
of
could
conflicting
exhibited
of
consensus
the
recognised
being
by
over
little
version
discussion
in
States
standard
thus been
took
final
HRC also
to
of
texts
often
comments
assistance
The
the
The
The
general
ICCPR.
See ch. 2,
State
of
draft
how
and
the
maintain
105
Members
making.
the
ICCPR.
records
various
of
interpreted.
article
to
importance
the
and
summary
interesting
on
perspectives
desire
strong
the
of
to
displayed
HRC
arisen
and
consideration
understanding
is
and
the
of
and. the
consideration
104
Optional
Protocol.
meetings
aid
usefully
developed
article
for
the
40103
article
Publication
public.
the
principles
the
under
communications
12.33.
The general
20
comment
under
article
to produce.
Relatively
three
of discussion
years
discussion
in the plenary
that
took
place
of
in
of
under
State
of
reports,
different
in
rights
form
produced
an
comments
both
during
under
reports
workings
opportunities
each
of
difficulties
and
under
article
has revealed
comments
general
consideration
between
the
point
reference
the
of
general
important
of
work
comment,
aspects
problems
general
HRC's
general
represents
relationship
the
of
the
consider
in
respect
to
HRC
drawing
The
HRC.
examination
on
particular
interesting
of
number
793
clear,
parties
which
established
whether
in
general
by the
consensus
CH. 12
has
increase
to
served
general
The
12.34
diminish
or
comment
general
the
usefulness
of
on
20
article
does
contain
including
and
noteworthy
aspects
positive
of
number
106
immediacy
the
the
of
obligation,
on
stress
19
20,107
the reference
of
articles
and
compatibility
108
"internal"
forms
the
"all
of
propaganda",
20109 and the need
"external"
of article
application
an
"fully
the
20.
on article
comment
794
a
the
the
to
and
for
before
20 can become
sanction"
article
110
However,
a number
of difficulties
effective".
"war"
"propaganda"
The meaning
of
remain
and
"appropriate
remain.
ambiguous
20 will
uncertain
and
difficulties
raised
by
Charter.
difficulty.
106
the
concerning
ambiguous
an
112
In
of
fact,
as
was
we
adopted
resurrect
have
seen,
with
110
ill
112
113
avoided
Nations
subsequent
some
of
relatively
1
these
on
comment
little
113
above.
109
self-
article
107
108
and
on
the
The
between
United
their
comment
general
would
the
that
anticipated
article
ill
relationship
to
reference
Members
article
some
force,
of
use
violence
or
were
and independence
ultimately
consideration
(self-determination)
problems.
be that
may well
definition.
added
the
propaganda,
determination
only
need
eventually
it
and
above.
above.
above.
See prs.
12.5,12.8
See prs.
12.19-12.25
and
12.18
above.
above.
is also
20 under
CH. 13
13:
CHAPTER
13.1
little
in
fully
to
under
permit
an
HRC's
work.
to
be
for
13.2
In
chapter
a new post-war
world
order
the
Cold
of
)ns
HRC.
HRC
to
of
the
it
is
and
This
the
foregoing
assess
assessment
comments
and
chapters.
development
the
from
the
of
evaluation
with
Rights
period
effectiveness
the.
traced
however,
observat:.
of
the
we
Of
Bill
confrontations
general
in
es
.
that
of
work
short
enough,
the
of
conjunction
contained
International
in
the
in
read
i. l. -
apprais,
some
too
: ictivit
long
basis
the
offer
prospects
is
evaluation
On
is
the
It
interim
possible
decade
evaluate
Covenant.
the
must
AND PROSPECTUS.
than
more
which
the
APPRAISAL
795
the
through
'
War.
vision
the
of
its
reality
role
the
of
long
The
the
of
gestation
input
in
the
permitted
a
more
universal
period
Covenants
international
the
States
as
community
of
in
decolonization.
the
In appraising
the
era
of
expanded
important
signally
a
for
obligations
persons
stateless
to
may
provisions
development
the
use
as
of
basic
the
Covenant
1
2
3
4
5
of,
in
of
standard
See ch. 1,
the
Covenant
it
clearly
well
as
reflect,
prs.
Ibid.,
pr. 1.34.
Ibid.,
pr. 1.35.
Ibid.,
pr. 1.36.
Ibid.,
pr.
1.37.
to
to
which
protects
or
''
international
5
its
law;
international
above.
is
legal
Further
attention
aliens
contribute
domestic
the
it
that
binding
2
it.
nationals;
customary
1.1-1.15
is
contains
parties
that
submitted
Covenant
States
of
that
are
was
the
of
which
the
features
significant
drawn
was
its
feature
instrument
universal
it
Covenant
the
of
significance
human
that
and
some
of
significantly
law;
adoption
rights
the
as
a
by
CH. 13
international,
its
as
role
a
6
instruments.
or
the
most
achievement
The
drafting
its
importance
to
and
7
Rights
8
9
in
last
feature
may
10
itself
rights
social
role
the
of
strong
the
HRC and
Ibid.,
pr.
Preamble
(1948).
Set
ch. 1,
See ch. 2,
nature
members
2 we
chapter
It
despite
drawn
to
in
Nations.
highly
dearth
constructive
administrative
United
of
of
the
consensus
increasingly
the
work
of
the
links
and financial
12
1.38.
to
the
pr.
1.12.
prs.
Universal
2.2-2.4,2.18-2.19
Declaration
of
Ibid.,
prs.
2.16-2.17.
Ibid.,
prs.
2.18-2.19.
Human
above.
12
was
fundamental
of
experts.
an impartial
a
also
was
Secretariat
the
In
characteristics.
organ,
was
international
central
8
Covenant.
as
developed
Attention
the
the
10
11
the
and
on economic,
the
practice
independent
as
establish
publicity,
this
to
come
independent
operate
to
and
for
that
and
human
between
international
achievement
institutional
its
respected
HRC11,
new
Covenant
become
to
basic
that
submitted
practice.
important
the
may
body
implement-ation
managed
for
enduring
with
process
appeared
term
and
the
Universal
replace
"common
Of Human Rights
as the
standard
of
7
for
all
peoples
and all
nations".
had
Rights
Human
Committee
the
survived
Declaration
examined
institutions;
national
model
long
the
rights)
cultural
13.3
stimulus
(together
Covenant
and
and
In
be
to
prove
regional
796
It
the
And
CH. 13
It
further
was
in
alters
functions
Chapter
13.4
the
under
reports;
of
absence
requests";
and
representatives;
the
of
view"
20
the
State;
interpretation
17
18
19
20
uion
the
Ibid.,
of
any
absence
of
any
rights
performance
disagreement
within
jurisdiction
the
HRC's
in
resulted
no
country
2.22.
Ibid.
prs.
3.4,3.11
Ibid.,
prs.
3.7,3.9,3.10.
Ibid.,
prs.
3.8-3.8.1.
Ibid.,
prs.
3.12-3.18.
Ibid.,
pr.
3.23.
Ibid.,
pr.
3.24.
above.
of
reports
16
reports;
requesting
Committee
the
formal
role
for
organizations
duplication
clear
in
the
particular
HRC
under
specific
of
State
on
"Committee
placed
pressures
the
human
See ch. 3,
the
for
"whenever
rights
absence
State
non-governmental
18
the
procedure;
19
pr.
the
or
of
has
(b)
do
which
of
of
of
human
the
15
procedures
absence
the
These
reports
submission
its
to
preparation
adequacy
on
procedures
drawn
was
HRC
various
13
encountered.
for
40(1)
reporting
questions
16
and
incomplete
agreement
agencies
specialized
in
the
15
practices
the
the
article
17
the
under
14
in
delays
submitted;
13
perform.
guidelines
determine
to
procedures
40 which
or
Atter.
and
the
of
could
the
of
exercise
the
of
realities
with
in
States
the
concerned;
situations
so
nature
difficulties
the
and
deal
reports
the
system.
inadequate
14 inadequate
included
the
performs
examined
reporting
limitations
not
it
the
its
with
roles
and
that
submitted
accordance
797
on
the
article
reports
or
CH. 13
roles
13.5
to
the
practical
24
the
Covenant,
of
(1)(b)
40
article
from
information
of
22
23
24
25
on
the
26
27
28
29
30
of
that
that
the
a State
the
Ibid.,
pr.
3.39.
Ibid.,
pr.
3.40.
State
use
in
contained
a
the
reports
the
HRC has
prs.
3.3,3.19-3.21
See ch. 3,
prs.
3.6,3.46
See ch. 3,
prs.
3.8.1,3.47
prs.
3.9,3.10.
prs.
3.17-3.18.
Ibid.
Ibid.,
the
consistent
the
obtaining
usually
by
HRC
a
of
State
the
a small
above.
Ibid.,
securing
of
on
of
at
members
the
specific
establishment
of
of
action
for
aimed
most
the
3.29-3.38.
prs.
ch. 3,
the
of
in
for
request
27
with
establishment
26
period,
eventually
(and
representative
Ibid.,
See
the
of
outside
30
21
the
Salvador,
number
substantial
information
presence
El
the
precedent
responses
28
that
reports,
29
submitted,
eventually
reports,
in
the
world,
consensus
reporting
gradual
of
submission
25
1988)
party
implementation
of
possible
of
State
effective
procedures,
the
each
year
some
1 May
of
of
maintaining
five
realistic
establishnent
are
and
those
of
application
(as
States
with
to
point
establishment
regions
dialogue"
"constructive
series
the
87
to
to
possible
include
geographical
all
regard
also
applicable
procedure
from
was
These
successes.
limited
the
general
comments;
and
22
23
ECOSOC,
Assembly.
and the General
it
However,
the
21
specific
by
played
country
798
above.
above.
and
ch. 3,
pr. 3.5
CH. 13
high
of
number
development
of
32
of
On
balance
1988)
it
procedure
has
procedure
of
been
Covenant
was
further
approach
Covenant.
system
challenge
to
responded
has been
positively.
effect
the
even
respect
for
the
the
31
32
33
general
34
35
found
rights.
4 examined
O. P.
and
with
the
represents
3.19,3.22.
Ibid.,
prs.
3.25-3.28.
See also
many
prs.
of
the
the
formidable
have
them
of
region
and
appraisal
explain
an
to
systematically
their
human
examination
practices
and
Protocol.
important
below.
all
In
rights
be
only
record
of
procedures
It-was
above.
13.9-13.17
can
acknowledged
The
pr. 3.35.
specific
in chs. 3-12
are analyzed
pr. 3.52
the
geographical
States
another
prs.
Ibid.,
examine
and
critique
and
Ibid.,
Ibid.,
comments
is
that
summary
records
in
degrees.
wanting
various
Optional
the
when
the
appraisal
human
broad
limitations,
or
obliges
States
HRC under
that
from
for
Chapter
13.7
and
a detailed
useful
the
articles
serious
State
No
appraise
performance.
more
which
acknowledged
parties
reporting
(in
5-12
33
usefulness.
much
selected
presents
Such
healthy
to
its
procedure
periodically
comments
been
predicted
34
That
appraisal
1966".
chapters
HRC
from
States
and
in
States
evident
been
ha"is
and
in
adopted
is
it
general
implementation
have
efficient
"the
a
the
periodic
and
into
confidently
excepted
party,
second
that,
submitted
despite
reporting
quality
developed
the
Overall,
13.6
sixteen
varying
support
of
35
of
of
international
could
given
of
was
than
sense)
adoption
31
and
consideration
the
1 July
(as
State
every
rationalized
more
the
and
reports,
the
for
procedure
from
quality)
799
of
submitted
advance
-terms
above.
of
in
the
CH. 13
terms
36
law.
the
of
status
Attention
of
the
defined
Subsequent
commented
HRC's
some
States
have
with
the
the
both
give
effect
off
the
communications
Optional
the
that
fashioned
the
has
counterpart
regional
36
37
38
39
40
41
the
the
it
appraisal
a
the
a need
for
Optional
was
practicable
and
See ch. 4,
pr. 4.119
Ibid.,
pr.
4.120.
Ibid.,
prs.
4.9-4.118.
Ibid.,
prs.
4.127-4.133.
Ibid.,
pr. 4.8.
Ibid.,
pr. 4.126
above.
above.
potential
much
simply
known
not
States
to
parties
better
and
procedure.
functional
also
of
is
that
submitted
level
the
universal
41
It
was
systems.
on
of
Protocol
develop
to
potential
of
undoubtedly
is
in
to
39
the
number
explanation
advisors
that
noted
procedures
procedure
clearly
for
publicity
In
is
There
concerned.
wider
and
of
under
settlement
probable
and
its
disappointing
number
Protocol
lawyers
national
13.8
most
37
a willingness
to its
views.
other
substantial
was
practice
limited
the
and
aspects
the
of
the
practices
been
shown
The
siphon
basis
standards.
many
38
It
has
views
feature
most disappointing
been
has
O. P.
perhaps
40
Although
communications.
investigation
international
the
treaty
double
HRC and
HRC and
include
secure
favourably.
upon
advantageous
These
alleged
the
the
with
compliance
cooperate
by
the
of
the
analysed
developed
were
although
and
international
by
norms
established
"pre-judging"
resolutions,
of
sections
procedures
work
legal
selectivity
political
some
HRC,
avoidance
in
procedure.
the
of
the
Covenant,
to
O. P.
nature
O. P.,
the
the
of
independent
drawn
was
characteristics
individual
the
of
800
HRC have
the
that
procedure
into
to
submitted
an
the
effective
established
that
long
CH. 13
term
be
must
view'
keep
to
important
its
examining
reporting
the
and criticisms
comments
dealt
issues
with
and
some
controversial
determination
is
the
44
been
13.11
HRC clearly
to determine
the
some of
and
and
a"
principal
Ibid.,
disputes.
1
2that
how
exactly
it
was
was for
implemented
the
rights
those
HRC members
in
the
context
45
secession,
46
However,
criticised
General
it
for
of
comments
over
was
self-
individual
even
e. g.,
as
being
The
obligation):
each
the
State
terms
prs.
1.22-1.24
44
See ch. 5,
prs.
5.3,5.5
prs.
5.6-5.7.
Ibid.,
pr.
5.15.
Ibid.,
pr.
5.24.
and
above.
ch. 5,
pr. 5.2
or
the
party
of
the
pr. 4.133.
See ch. 1,
45 V-id.,
Covenant
the
strengthening
forceful
article
47
established
of
and
sensitivities,
international
on
in
observance
43
47
taken
approaches
Self-Determination):
article
uninformative.
6 (article
Chapter
46
and
questions
and
42
specific
that
recognized
"essential
condition
and
direct
comment
general
vague
systems
HRC
their
very
current
of
promotion
In
national
major
the
under
1-
an,
guarantee
rights".
of
by
HRC
contains
various
noted
inclusion
43
the
the
Although
effective
for
and
the
(article
Chapter
13.10
the
is
42
made.
submissions
have
features
key
the
of
rights
chapters
However,
appraisal.
the
of
communications
on
by
functioning.
work
selected
those
of
it
perspective
and
the
reviewed
Each
that
alive
to
approach
individual
and
respectively.
general
in
and
Protocol
5-12
Chapters
13.9
taken
801
above.
_n.
48
Covenant,
the
that
13
802
focus
primary
implementation"
"national
of
on
49
the obligation
the Covenant,
and that
immediate
an
one although
essentially
the
approach
a realistic
difficulties
50
Covenant.
the
HRC
the
clearly
also
"specific
of
of
number
general
for
"effective
remedies"
53
Covenant,
the
of
54
and the
chapters,
55
of the Covenant.
was
observed
the
sovereign
of
context
degree
the
being
Chapter
13.12
of
49
50
51
52
53
54
55
56
with
of
2 the
article
Covenant
pr.
Ibid.,
pr.
6.9.
Ibid.,
pr.
6.11.
Ibid.,
pr.
6.12.
6.3
ch. 8,
See ch. 6,
prs.
See e. g.,
text
Ibid.,
6.23.
particular
subsequent
the
terms
Provision):
It
to
simply
has
the
with
accept
in
the
parties
over
violations
the
States
of
assumed
some
compliance
onus
derogating
with
of
State.
proof
56
The
above.
prs.
8.3-8.4
6.21-6.22
to
of
in
and
the
on
importance
refused
of
article
heavily
in
taken
States
publicizing
supervision
See ch. 6,
See
was
provisions
on
Derogation
emergencies
of
pr.
to
victims
of
4-
international
See e. g,
HRC have
the
echoed
HRC has
the
public
placed
48
a theme
importance
determinations
requirements
implement
to
the
alleged
(article
that
of
fundamental
the
stressed
also
provisions
places
for
that
on States
parties
call
51
"affirmative
The
and
action"
.
is also
in a
obligations
repeated
52
by the HRC.
The
comments
adopted
positive
the
the
comment
that
stated
activities"
statement
was
sympathetic
implementing
the
general
obligations
positive
HRC
In
attention
been
and
in
genuine
its
of
above
6.
article
above.
n. 65 below
ch. 7,
on
prs.
(on
article
7.35-7.43
7).
above.
CH. 13
importance
in
requirements
response
also
was
by
attached
from
the
4(3)
used
to
States
to
HRC
the
article
803
notification
drew
eventually
parties
57
concerned.
a review
present
the
of
the
more
Chapter
workings
7
the
of
through
a country
specific
analysis
58
by
Kingdom.
The absence
United
of
a decision
on the
jurisdiction
40(1) (b)
HRC on its
to
under
the
article
is
in
the derogation
report
particularly
acute
a
request
59
context.
68 (article
The Right
To Life):
The HRC
Chapter
13.13
60
is
life
"supreme
to
the
the
that
right
right"
stated
.
interpretation
has been given
to the
A much wider
right
have
been
including
life
than
to
might
expected
such
procedure
reporting
infant
mortality,
malnutrition
matters
61
importance
The
health
attached
schemes.
is also
to life
to by
attested
the right
and
as
it
been
has
"[t]he
that,
and
those
of
second
the-subject
against
crimes
excellent
aroused
authoritative
Covenant.
of
example
the
way
Optional
the
interpretations
fact
the
its
that
The
statement
deployment
possession,
in
HRC to
the
comments.
by
controversy
weapons
nuclear
should
62
humanity".
Chapter
under
views
general
testing,
production,
of
use
two
of
by
public
be
8 also
which
Protocol
prohibited
as
served
as
decisions
and
can
of
the
terms
and
ch. 7,
pr. 7.48
an
offer
of
the
63
57
58
Ibid.,
prs.
7.19-7.22.
Ibid.,
prs.
7.23-7.34.
59
See ch. 3,
prs.
60
See ch. 8,
pr. 8.2
Ibid.,
pr.
8.3-8.4,8.27-8.28.
Ibid.,
pr. '8.12.
Ibid.,
prs.
61
62
63
3.8-3.8.1
above.
8.14-8.26.
above.
OVY
13.14
Of
Deprivation
the
stressed
interesting
to
between
the
work
institutions
established
in
ill-treatment,
coverage
extensive
from
attention
Again
comment.
illustration
of
the
of
States
Torture.
14
chapter
the
searching
procedure
parties
area
and
that
of
Fair
and
regional
the
the
other
new
United
The
deal
a great
lengthy
general
an
excellent
and
laws
the
the
and
Trial):
serves
as
dissection
of
how
of
and
work
66
be
will
relationship
and
new
14 attracted
article
HRC members
reporting
the
the
HRC under
it
torture
the
that
the
of
of
the
(article
10
Chapter
13.15
of
Against
in
future
this
on
particular
Committee
Nations
views
the
under
conventions
universal
under
For
of
"domestic
deficiencies
and
HRC in
the
of
was
safeguards
and
64
The
chapter
remedies.
development
the
watch
it
some
the
decisions
65
the
Protocol.
optional
the
effective
Treatment,
that
stated
procedural
illustrate
of
Ill
establishing
for
to
presentation
HRC
through
need
served
also
to
10(1)
and
The
control"
of
machinery
Liberty):
importance
vital
of
(articles
Chapter
and
analysis
practices
reporting
and
interact
Expression):
64
65
66
67
68
We noted
See ch. 9,
prs.
can
the
concern
9.4-9.4.1
Ibid.,
prs.
9.12-9.12.3.
Ibid.,
prs.
9.30-9.31.
prs.
Ibid.,
10.26-10.26.1.
prs.
10.58-10.60
expressed
above.
above.
at
specific
ideological
conceptions
introduction
the
discretion"
which
jurisprudence
70
Rights.
reservations.
relieving
reservations.
opportunity
by
attached
compromises
Having
it
is
for
to
examine
In
accommodations
69
70
71
72
73
74
75
reception.
evaluated
and
make
work.
First
or
declined.
was
of
some
pr. 11.6.1
Ibid.,
prs.
11.19-11.19.2.
Ibid.,
pr.
Ibid.,
prs.
12.6-12.8.
Ibid.,
prs.
12.13-12.26.
Ibid.,
prs.
12.33-12.34.
the
the
a general
importance
comments
and
to
work
the
reach
produced
foremost,
of
more
Covenant
States
particular
above.
12.2,12.6
prs.
such
a
was
the
HRC
recommendations
11.22.
to
took
of
general
new
the
someway
also
the
the
of
on
making
comment
and
to
In
go
necessary
appraised
of
a number
HRC
may
general
accede
rate
20
States
general
75
to
The
substantially
its
and
The
article
demonstrate
to
HRC to
74
was
we
development
the
Advocay
It
12
chapter
the
ratify
Protocol.
the
of
general
71
Hatred):
the
20
and
the
Human
on
HRC's
subject
of
19
served
appropriate
its
future
should
the
of
in
role
Propaganda,
of
been
articles
a mixed
accorded
- War
Religious
statement
fears
text.
consensus
13.18
The
the
73
This
20
and
"margin
disappointing.
inclusion
has
the
somewhat
Or
it
of
compatibility
that
submitted
the
and
72
controversial
comment.
Convention
19 was
(Article
that
observed
European
the
Racial
National,
Of
expression,
the
of
important
was
comment on article
12
Chapter
13.17
of
doctrine
the
of
has played
an
under
It
freedom
of
69
above.
parties
strong
States
and
the
has
pressure
Uli. 1_
be
become
exerted
76
parties.
publicity
given
should
their
to
the
considered
the
from
of
examination
State
some
to
continue
develop
executives
texts
the
aspects
on various
precedent
developed.
for
how
the
to
by
The
has
the
79
HRC's
comments
76
On the U. S. position
see
that
the
is
question
understood
lowest
level
has
the
of
Covenant
is
known
Chinese
that
It
States.
the
HRC.
the
of
work
observed
77
See Tomushcat,
ch. 6, n. 1
texts
must
that
Recent
excellent
produced
work,
HRC
national
authorities.
Those
general
HRC
to
and
the
comments
comprehensible
other
in
play
Covenant
adopted
produce
bodies
of
Principles.
Siracusa
as
and
administrators,
by non-governmental
work
the
of
specific
to
role
elements.
and
relevant
practically
Similarly
and
important
so
proper
non-governmental
useful
them
the
practice.
the terms
and procedures
78
The general
comments
contained
senior
departments
institutions
education
have
an
being
or
domestic
and
their
are
assist
reports
should
of
reports
international
organizations,
bodies
interest
have
examination
substantially
and
They
ministers
key
the
and
national
of
presence
the
Protocol
Covenant.
the
under
to
improve
the
and
China
and
should
Covenant
the
would
publicizing
the Protocol.
parties
of the
account
77
HRC.
When States
representatives
concerned
States
a full
provide
also
by
reports
are
States
reports
national
United
the
on
806
for
example,
provide
could
be
It
ch. 1, pr. 1.25 above.
of ratification
of the
in the United
priority
have
representatives
above,
78
(1984-85),
p. 60.
Sri
the
Lanka
being
When
reports
of
were
by
the
HRC
by
Sri
a
collection
of
artwork
considered
theme
on the
of human rights
schoolchildren
was
Lankan
the
HRC's
A number
outside
meeting
room.
displayed
of
initiatives
by
commended
such
educational
HRC members
States.
79
See ch. 7,
n. l
above
(1985).
CH. 13
Discussion
13.19
the
of
controversy
under
specific
human
the
the,
and
implementation
that
argument
strong
to
years
the
procedures.
Such
an
confidence
and
respect
specific
comments
parties,
divided
have
would
present,
of
the
by
increased
should
also
closed
the
80
HRC
81
procedures
considering
H. Tolley,
2-4,
chs.
to
date
and
door
Such
on
is
The
by
the
complaints
United
The
(1987).
is
it
Country
States
proceedings
So,
be
for
in
probably
must
the
gain
the
term.
specific
could
that
its
not
the
favour
accompanied
present
case
for
obligations
the
3.29-3.38
comments
prove
even
proving
a strong
prs.
refine
to
its
long
early
its
greater
non-governmental
level.
and international
HRC have
that
that
mind
reporting
See ch. 3,
its
far
refinement
rationalization
Cf.
but
found
were
it
alienated
case
country
ultimately
and
the
development
generally
international
the
80
the
at the national
in
be borne
comments
such
of
taken
there
any
politicized
balance
development
general
HRC and
in
is
parties.
which
little
and
States
of
in
allowed
reports
publicity
involvement
the
the
approach
reports.
and
achieved
the
has
the
there
sensible
develop
comments
securing
However,
and
approach
in
on
is
It
specific
weapons
HRC was
cautiously
move
reports
parties.
country
Covenant.
the
of
States
potent
addressed
specific
of
such
be more
would
reports
that
case
comments
turn,
performance
rights
undoubtedly
in
and,
countries
to
general
raises
jurisdiction
HRC has
the
whether
to issue
40(4)
article
inevitably
comments
general
over
807
positive
possible
with
not
and
if
continued
procedures
81
effective.
rationalization
of
It
States.
achievements
and
More
of
In
of
above.
fascinating
development
the
of
for
Human
Commission
Rights
human
see
of
violations,
rights
Nations
Commission,
Human
Rights
CH. 13
HRC's
the
should
work
be
not
808
undermined,
be made for
more substantial
83
United
the
HRC members,
and
be
Secretariat
must
properly
and more wide-ranging
is very
difficult
to
It
13.20
the
that
HRC is
human
having
many
the
of
work
level.
national
more
specific
account
of
example,
decision
making,
be
being
in
States
those
reproduce
the
claims
or
the,
Covenant
assemblies,
administrative
of
the
on
the
However,
have
appeared
Covenant
of
of
legislative
judicial
the
wholesale
implementation
of
taken
work
parties.
that
an
evidence
effect
an important
immensely
helpful
evidence
of
the
and
Rights
provide
84
positive
positive
that
played
would
and
reviews
national
and
for
It
catalogue
could
any
HRC have
service.
provide
the
stated
to
support
representatives
HRC have
Human
funded
and
in
State
the
the
before
concrete
position
rights
of
any
Nations
Covenant
the
of
existence
provision
for
the
remuneration
should
effective
82
and
the
role
at
the
if
the
together
or
HRC
with
partial
the
Covenant
and
the
HRC,
executive
decisions.
85
82
Human
Rights:
Their
L. Sohn,
See
generally
in
Nations,
By The United
And Supervision
Implementation
Law - Legal
Human Rights
In International
ed.,
T. Meron,
(1984).
369-40,
Issues,
Policy
pp.
and
83
See ch. 2, pr. 2.2 above.
84
Secretariat
HRC and
the
On the
ch. 2,
see
failure
N.
to
the
The
the
U.
2.16-217
renew
of
above.
prs.
Human
Van
Boven
Director
then
Mr.
of
as
of
contract
the
Division
of
sessions
of
and
cancellation
Rights
human rights
that
are still
organs
suggest
human rights
the
United
the
necessary
priority
within
accorded
not
individual
The'commitment
the
members
of
system.
Nations
is
but
to
Secretariat
the
evident
observer
any
of
that
to
match
not
made
available
are
resources
commitment
85
the
Iraqi
State
For
example
representative
in
into
Covenant
the
taken
that
account
was
stated
be
bill
draft
that
could
and
cases
a
numerous
rejecting
invoked
been
had
Covenant
provisions
of
where
noted
SR 744 pr. 37:. In his
Iraqi
courts,
concluding
before
(Footnote
Continued)
CH. 13
13.21
In
idea
of
Richard
the
words
of
our
time".
Ulman
has
for
87
809
Louis
Henkin,
"Human
86
different
From
a
that,
commented
human rights...
"No
is
rights
the
perspective
is
time
ever
But
some times
are worse
being
Human rights
than
to
others".
are
subjected
from
increasingly
sophisticated
analysis
various
88
89
including
lawyers,
disciplines
philosophers,
international
scientists
and
political
relations
90
and
social
scientists
concerned
experts,
with
good
really
Continued)
(Footnote
the U. K. state
"he
that,
representative
stated
comments
his
the
had
that
Government
suggestion
noted
might
a detailed
analysis
of the covenant
and how the
attempt
implemented
in
being
law
were
articles
and
various
in
had in fact
the United
Such a study
Kingdom.
practice
had
been
been
the
Covenant
time
the
undertaken
at
had
Since
then
circumstances
changed,
as also
signed.
interpretation
had ideas
the
Covenant
regarding
of the
have arrived
itself.
The time
therefore
to make a
might
SR 598 pr. 35.
further
study",
86
L. Henkin,
Bill
International
Rights,
political
Introduction,
Of Rights
(1981).
p. 1,
to
-
The
87
L. Henkin,
ed.,
Covenant
On Civil
Introduction:
Human Rights
R. H. Ulman,
in
Action,
J. Dominguez
International
et
al,
Human Rights,
Global
p. 1, (1979).
88
Rights,
Human
The
See P. Sieghart,
(1983);
M. McDougal,
And World
Public
Rights
89
Basic
For
Rights:
notable
recent
Subsistence,
- Toward
Enhancing
Law Of Human
International
L. C. Chen,
H. Lasswell
and
(1980)
Order,
For
recent
contributions
(1985);
Human
Rights,
Of
Concept
(1987).
Sense Of Human Rights,
90
The
And
J. Donnelly,
see
J. W. Nickel,
The
Making
H. Shue,
contributions
see
States
Affluence
And United
(Footnote
Continued)
CH. 13
human
evaluating
been
has
HRC
the
importance.
The
structures
and
Protocol
and
purposes
of
time"
for
of
and
human
the
presented
has
been
is
the
of
life
and
the
that,
foregoing
the
and
its
assess
"idea
of
improved
of
the
primary
determine
and
of
substantial,
to
The
to
HRC
less
no
Covenant
been
submitted
in
but
of
our
respect
the
basis
chapters,
its
on
positive
and
93
constructive.
(Footnote
It
function
language.
a time
closer
The
giving
the
development
the
bringing
92
rights.
with
the
of
to
contribution
have
thesis
nature
evidence
of
its
to
meaning
esoteric
charged
mechanisms
to
contribution
less
much
this
91
performance.
HRC was
the
evaluate
rights
810
Continued)
(1980);
Policy,
Foreign
Relations,
International
R. J. Vincent,
(1987).
Human
Rights
And
91
J. Dominguez
See
McDougal,
et
al,
n. 88
above;
Symposium,
Chen,
Stastical
n. 89
above;
Lasswell
and
Of Human
Rights,
8 HRQ (1985)
Field
Part
In The
Issues
R. E. Howard,
International
J. Donnelly
and
eds.,
I;
(1987).
Rights,
Human
of
Handbook
92
93
See notes
87-88
above.
HRC
positive
assessments
of' the
similarly
4,
1
1
1,
229-232;
Ahmed,
Brar,
ch.
n.
above,
n.
ch.
see
(1982),
3,
1
204-208;
Fischer,
ch.
n.
above,
pp.
above,
169-170;
3,
1 above,
(1980),
Nowak,
pp.
ch.
n.
153;
p.
(1984),
1
104-106.
3,
n.
above,
pp.
ch.
Jhabvala,
For
APPENDIX
COVENANT
INTERNATIONAL
THE
RIGHTS.
ON
CIVIL
AND
I.
POLITICAL
Preamble
THE
STATES
PARTIES
TO THE PRESENT
COVENANT,
in
that,
the
Considering
accordance
with
principles
in
Charter
the
the
United
Nations,
of
proclaimed
inherent
dignity
the
of
and of the equal
and
recognition
is
inalienable
rights
of all
members of the human family
justice
freedom,
in
foundation
the
of
the
and
peace
world,
derive
from
inherent
that
these
the
Recognizing
rights
dignity
of the human person,
in
Universal
that,
the
Recognizing
with
accordance
ideal
free
human
Human Rights,
the
Declaration
of
of
freedom
beings
civil
and political
and freedom
enjoying
be achieved
if
fear
from
can only
conditions
and want
his
whereby
everyone
may
enjoy
economic,
created
are
rights,
and cultural
social
the obligation
the Charter
Considering
of States
under
for,
Nations
to
United
the
promote
respect
universal
of
human
freedoms,
of,
rights
and
observance
and
Realizing
individuals
a
under
observance
Covenant,
Agree
PART
individual,
having
duties
the
that
to
other
he belongs,
is
to which
and to the
community
for
to
the
responsibility
strive
promotion
and
in
the
the
of
rights
recognized
present
upon
the
following
articles:
I.
Article
II.
2.
Article
Covenant
Party
to the present
undertakes
1. Each State
individuals
its
to
to
ensure
all
within
and
to respect
its
jurisdiction
to
the
subject
rights
and
territory
in
distinctson
Covenant,
the
present
without
recognized
language,
kind,
such
as
race,
colour,
sex,
any
of
APPENDIX
I.
or other
opinion,
national
political
or social
religion,
birth
or other
status.
property,
origin,
for
by
Where
2.
already
provided
not
existing
State
to the
legislative
each
or other
measures,
party
to take
the necessary
Covenant
undertakes
steps,
present
its
in accordance
with
constitutional
processes
and with
Covenant,
the
to adopt
of
present
such
the provisions
to
as may be necessary
legislative
measures
or other
in
to
the
the
recognized
rights
present
effect
give
Covenant.
Covenant
to the present
undertakes:
3. Each State
party
that
whose rights
or freedoms
(a) To ensure
any person
have
herein
violated
are
shall
an
recognized
as
has
that
the
violation
notwithstanding
remedy,
effective
in
by
been
acting
an
official
persons
committed
capacity;
that
To ensure
claiming
such
a remedy
(b)
any person
by
determined
his
have
thereto
competent
right
shall
judicial,
or legislative
authorities,
or
administrative
for
by the
provided
by any other
competent
authority
develop
State,
to
the
legal
and
of
system
"the
judicial
remedy;
of
possibilities
the
that
To ensure
authorities
shall
(c)
competent
when granted.
such remedies
enforce
3.
Article
Covenant
Parties
to the present
The States
to
the
women
and
right
of
men
equal
ensure
rights
set
and political
civil
all
of
Covenant.
present
Article
to
undertake
the enjoyment
in
forth
the
4.
life
the
threatens
In
time
which
1.
of public
emergency
is
the
officially
of
which
the
and
existence
nation
of
Covenant
the
States
Parties
to
the
present
proclaimed,
from
derogating
their
obligations
take
measures
may
Covenant
the
to
strictly
the
extent
present
under
the
by
the
provided
of
situation,
exigencies
required
inconsistent
their
other
with
are
not
measures
such
that
involve
do
law
international
not
and
under
obligations
race,
colour,
of
on the
ground
solely
discrimination
language,
or social
origin.
religion
sex,
(paragraphs
1
6,7,8
from
derogation
and
No
articles
2.
this
11,15,16
provision.
and 18 may be made under
2),
Covenant
the
to
State
present
availing
Any
party
3.
immediately
derogation
the
shall
of
right
itself
of
Parties
States
to the present
Covenant,
the other
inform
intermediary
Secretary-General
the
the
of
of the
through
from
has
it
the
Nations,
of
provisions
which
United
by
it was actuated.
A
the
which
reasons
of
and
derogated
be
through
the
shall
made,
same
further
communication
date
it
terminates
on which
on the
such
intermediary,
derogation.
in
1. Nothing
for
implying
the
any
5.
Article
Covenant
present
State,
group
or
may be
person
interpreted
any right
as
to
in
or perform
any activity
any act
aimed
at the
engage
herein
destruction
of any of the rights
recognized
or at
is
limitation
to a greater
than
their
extent
provided
Covenant.
in the present
for
be no restriction
from
2. There
shall
upon or derogation
fundamental
in
the
rights
recognized
or existing
of
any
Covenant
Party
to the present
to law,
pursuant
any State
that
regulations
on the
or custcm
pretext
conventions,
does not
Covenant
the present
recognize
such
rights
or
it recognizes
them to a lesser
that
extent.
PART
III.
6.
Article
inherent
human being
has the
life.
to
1. Every
right
be protected
by law.
be
No one shall
This
shall
right
his
life.
deprived
of
arbitrarily
have
death
the
2.
In
which
not
abolished
countries
be
imposed
death
for
the
only
of
may
sentence
penalty,
in
law
in
force
the
crimes
accordance
with
serious
most
the
the
time
the
of
commission
of
crime
and
not
at
he
the
Covenant
tot
provisions
of
present
and
contrary
Convention
Prevention
the
on the
to
and Punishment
of
Genocide.
be
This
Crime
the
of
penalty
shall
only
judgement
final
by a
to
pursuant
a
rendered
out
carried
court.
competent
life
the
3. When deprivation
of
constitutes
crime
of
is
in this
it
that
understood
nothing
article
genocide,
to the present
Covenant
party
any State
authorize
shall
in any way from any obligation
to derogate
assumed under
Prevention
on the
of the Convention
the provisions
and
Punishment
of the Crime of Genocide.
have
to death
the
to
4. Anyone
shall
right
sentenced
Amnesty,
of sentence.
or commutation
pardon
seek pardon
in
be
all
cases.
may
granted
or commutation
be imposed
for
death
5. Sentence
shall
not
crimes
of
below
by
of
persons
eighteen
years
age and
committed
be
women.
carried
out on pregnant
not
shall
No one
inhuman
particular,
consent
7.
Article
be
to
torture
to
or
subjected
cruel,
shall
degrading
treatment
In
or
punishment.
or
be subjected
his
free
no one shall
without
to medical
or scientific
experimentation.
B.
Article
be held
in
slavery
slavery;
and the
1. No one shall
in
forms
be
their
trade
all
prohibited.
shall
slave
in servitude.
be held
2. No one shall
forced
be required
to perform
(a) No one shall
or
3.
labour;
compulsory
in
3 (a) shall
to preclude,
(b) Paragraph
not be held
imprisonment
be
hard
labour
may
where
with
countries
for
the performance
a crime,
of
imposed
as a punishment
in
labour
to
to
pursuance
such
a
sentence
hard
by
a competent
court;
punishment
the
For
term
(c)
this
the
purpose
of
paragraph
labour'
or compulsory
'forced
shall
not include:
(i)
in
Any
to
or
service,
work
not
referred
(b),
normally
required
of a person
sub-paragraph
who is
in
detention
consequence
of
a lawful
order
under
of a
during
from
a
person
of
conditional
or
release
court,
such detention;
in
(ii)
Any
of
service
a military
character
and,
is
conscientious
where
objection
recognized,
countries
by law
service
required
of
conscientious
any national
objectors;
in
(iii)
Any
service
exacted
cases
of
emergency
or
life
threatening
the
the
or
well-being
of
calamity
community;
forms
(iv)
Any work
or
service
which
part
of
normal
obligations.
civic
Article
9.
has the
liberty
to
1. Everyone
right
and security
of
be
No
to arbitrary
shall
one
subjected
arrest
or
person.
be deprived
his
liberty
No one
detention.
shall
of
in
grounds
and
accordance
on such
with
such
except
by
law.
are
as
established
procedure
be informed,
2. Anyone who is arrested
shall
at the time
for
his
the
the
of
reasons
arrest,
arrest
and shall
of
informed
him.
be promptly
of any charges
against
detained
3.
Anyone
arrested
or
on a criminal
charge
brought
before
judge
be
promptly
a
or
other
shall
by
law
judicial
to
exercise
authorized
power and
officer
be entitled
to trial
time
within
a reasonable
or
shall
be
It
the
that
to
shall
not
general
release.
rule
be detained
in custody,
but
trial
awaiting
shall
persons
be
for
to
to
subject
guarantees
may
appear
release
judicial
stage
trial,
of the
at any other
proceedings,
for
the
occasion
arise,
execution
should
of
and,
judgement.
liberty
by arrest
4. Anyone
who is deprived
of his
or
be entitled
before
to take
detention
shall
proceedings
a
in
decide
delay
the
that
order
court
may
without
court,
his
detention
lawfulness
his
the
of
and
order
release
on
is not lawful.
if
the detention
5. Anyone who has been the victim
of unlawful
arrest
or
have
to
detention
shall
an
enforceable
right
compensation.
10.
Article
deprived
be
liberty
their
All
1.
of
shall
persons
humanity
for
the inherent
and with
respect
with
treated
dignity
of the human person.
in
Accused
(a)
persons
shall,
2.
save
exceptional
be
from
segregated
convicted
persons
and
circumstances,
be
to
treatment
to
separate
subject
appropriate
shall
as unconvicted
persons;
status
their
juvenile
from
be separated
(b) Accused
persons
shall
brought
for
as
speedily
and
as
possible
adults
adjudication.
treatment
system
3. The penitentiary
shall
comprise
of
the
be
essential
their
aim
of
which
shall
prisoners
Juvenile
and
social
rehabilitation.
reformation
offenders
accorded
status.
No one
inability
shall
treatment
shall
to
be
fulfil
be
segregated
appropriate
from
to
their
adults
age
11.
Article
imprisoned
merely
on the
a contractual
obligation.
be
and
legal
and
ground
of
12.
Article
lawfully
territory
the
1. Everyone
within
of
a State
have
that
territory,
the right
to liberty
within
shall,
his
freedom
to
choose
residence.
and
movement
of
be
free
leave
to
2.
Everyone
shall
any
country,
his own.
including
be subject
to
3. The above-mentioned
rights
shall
not
those
by law,
except
which
are provided
any restrictions
to protect
national
security,
public
order
are necessary
health
(ordre
public
or morals
public),
or the
rights
freedoms
the
of
others,
and are
consistent
with
and
in
the present
Covenant.
recognized
rights
other
be arbitrarily
deprived
4. No one shall
to
of the right
his
own country.
enter
13.
Article
in the territory
lawfully
to
An alien
of a State
party
Covenant
in
therefrom
may be, expelled
the present
only
decision
in
law
a
reached
of
accordance
with
pursuance
except
where
compelling
reasons
of national
and shall,
be
to
the
require,
otherwise
allowed
submit
security
his
have
his
to
against
expulsion
and
case
reasons
be
by,
before,
the
and
represented
competent
reviewed
designated
or
a
person
or
persons
especially
authority
by the competent
authority.
APPENDIX
I.
14.
Article
be equal
before
1. All
the
shall
persons
courts
and
determination
In the
tribunals.
of
any criminal
charge
his
him,
in a suit
or
of
rights
and obligations
against
be entitled
to a fair
shall
everyone
and public
at law,
independent
by
impartial
hearing
competent,
a
and
by law.
The press
tribunal
established
and the
public
from
for
be
trial
all
or
part
of
a
excluded
reasons
may
(ordre
order
public
public)
or
national
morals,
of
in
democratic
interest
a
society,
or when the
security
lives
of the parties
so requires,
or to
of the private
in
the
the
the
strictly
necessary
opinion
of
extent
in
special
circumstances
where
publicity
would
court
interests
justice;
judgement
but
the
of
any
prejudice
in a criminal
be
case or in a suit
at law shall
rendered
interest
juvenile
the
except
where
of
public
made
the
requires
otherwise
or
proceedings
concern
persons
disputes
or the guardianship
of children.
matrimonial
have
Everyone
2.
charged
with
a criminal
offence
shall
innocent
to be presumed
the
until
right
proved
guilty
law.
to
according
In the determination
3.
of any criminal
charge
against
be entitled
to the following
him,
shall
everyone
minimum
in
full
equality:
guarantees,
in
in
detail
To be informed
promptly
and
a
a)
he understands
language
which
of the nature
and cause of
him;
against
the charge
for
time
b)
To have
the
adequate
and facilities
his
defence
to
of
and
communicate
with
preparation
his
own choosing;
of
counsel
To be tried
without
undue delay;
c)
in
his
defend
d)
To be tried
to
presence,
and
in person
legal
himself
or through
assistance
of his own
informed,
be
if
he
does
have
legal
to
not
choosing;
have
legal
this
to
of
right;
and
assistance
assistance,
him,
in
interests
the
to
case
where
any
of
assigned
by him in any
justice
and without
payment
so require,
if
he
does
have
to
not
sufficient
means
pay
case
such
it;
for
have
To examine,
the
or
witnesses
examined,
e)
him
the attendance
and to obtain
and examination
against
behalf
his
the
on
under
same conditions
as
witnesses
of
him;
against
witnesses
if
f)
To have the free
assistance
of an interpreter
in
language
the
or
he
understand
speak
used
cannot
court;
be
himself
to
testify
to
Not
compelled
against
g)
guilt.
or to confess
the procedure
In the case of juvenile
persons,
shall
4.
take
the
their
account
of
and
be
as will
age
such
their
of promoting
rehabilitation.
desirability
have the
Everyone
convicted
of a crime
right
shall
5.
by
being
his
and
sentence
a
conviction
reviewed
to
to law.
tribunal
according
higher
has
by
decision
been convicted
When
a final
person
a
6.
his
offence
and
criminal
when
subsequently
a
of
been
has
he
has
been pardoned
reversed
or
on
conviction
APPENDIX
I.
discovered
fact
that
the
a new or newly
ground
shows
has
been
that
there
a miscarriage
of
conclusively
the
justice,
person
who has suffered
punishment
as a
be
compensated
conviction
shall
such
of
according
result
it
is proved
that
the
to law,
unless
non-disclosure
of
in time
is wholly
or
the unknown fact
him.
to
attributable
partly
be liable
to be tried
7.
No one shall
or punished
again
for
he has already
been
finally
for
which
an offence
in
law
the
acquitted
accordance
with
or
and
convicted
of each country.
procedure
penal
15.
Article
be held
1.
No one shall
of any criminal
guilty
offence
did
or
any
act
omission
which
of
not
account
on
criminal
offence,
under
national
a
or
constitute
law,
time
international
at the
when it
was committed.
be imposed
than
the one that
Nor shall
penalty
a heavier
at the time when the criminal
offence
was
was applicable
If,
to
the
the
subsequent
commission
of
committed.
is
by
law
for
imposition
the
made
provision
of
offence,
benefit
the
thereby.
lighter
offender
shall
penalty,
a
in this
the
trial
Nothing
2.
article
shall
prejudice
for
person
of
any
any act
or
omission
punishment
and
it
time
the
when
was committed,
was criminal
at
which,
law
by
the
to
general
of
recognised
principles
according
of nations.
the community
Article
have the right
Everyone
shall
law.
before
the
person
as a
16.
to recognition
everywhere
17.
Article
to arbitrary
subjected
or unlawful
family,
home
his
privacy,
or
honour
to unlawful
attacks
cn his
be
No one shall
1.
interference
with
nor
correspondence,
and reputation.
has the right
Everyone
2.
interference
such
against
to the protection
or attacks.
of
the
law
18.
Article
have the right
to freedom
of thought,
shall
1. Everyone
include
This
right
religion.
shall
and
conscience
to have or to adopt
a religion
of his
or belief
freedom
individually
in
freedom,
either
or
community
and
choice,
his
in
to
or
private,
manifest
public
and
others
with
in
belief
observance,
and
worship,
practice
or
religion
teaching.
be
to
coercion
No
subject
which
would
shall
2.
one
freedom
to have
his
or
or to
adopt
a religion
impair
belief
of his choice.
be
beliefs
to
manifest
one's
religion
may
Freedom
or
3.
limitations
by
to
such
as
are
prescribed
only
subject
to protect
public
order,
safety,
law and are necessary
or the fundamental
rights
or morals
and freedoms
health,
of others.
APPENDIX
I.
Parties
4.
The States
to the present
Covenant
undertake
for
liberty
the
to have
respect
of
parents
and,
when
legal
to ensure
the religious
guardians
applicable,
and
in
their
of
education
children
conformity
moral
with
their
own convictions.
19.
Article
1.
Everyone
shall
interference.
without
have
the
right
to
hold
opinions
have
2.
the
freedom
Everyone
to
shall
right
of
include
this
freedom
to
right
shall
expression;
seek,
information
kinds,
and impart
and ideas
of all
receive
in writing
of frontiers,
either
orally,
regardless
or in
in
form
the
of art,
or through
any other
print,
media
of
his choice.
this
for
in
3.
The
of
rights
exercise
provided
2 of
this
it
article
carries
with
paragraph
special
It may therefore
be subject
duties
and responsibilities.
but these
be such as
to certain
restrictions,
shall
only
by
law
and are necessary;
provided
are
(a)
For
the
respect
of
rights
or
reputations
of
others;
(b)
For the protection
of national
security
or of
(ordre
health
order
public),
or public
public
or morals.
20.
Article
for war shall
be prohibited
Any propaganda
1.
2.
Any advocacy
of national,
racial
or religious
incitement
to discrimination,
that
constitutes
be
by
law.
shall
prohibited
violence
or
by
law.
hatred
hostility
21.
Article
be recognized.
No
The right
of peaceful
assembly
shall
be
may
placed
on the exercise
of this
right
restrictions
imposed
in
those
than
the law and
conformity
with
other
in
in
the
necessary
a democratic
are
society
which
interests
of national
security
or public
safety,
public
(ordre
the protection
public),
of health
or morals
order
freedoms
the
the
of
rights
protection
and
of others.
or
Article
22.
have
freedom
the
to
Everyone
1.
shall
right
of
including
form
the
to
with
others,
right
and
association
for
interests.
the protection
trade
join
unions
of his
No restrictions
2.
may be placed
cn the
exercise
of
by law
than
those
which
other
are prescribed
right
this
in
democratic
in
the
a
are
necessary
society
which
and
security
interests
or public
of national
safety,
public
(ordre
the
health
protection
public),
of
public
or
order
freedoms
the
the
of
protection
rights
or
and
of
morals
imposition
This
the
article
shall
not
prevent
of
others.
on members
lawful
restrictions
of the armed forces
and
in
their
exercise
the
of this
police
right.
of
in
this
States
Nothing
article
3.
shall
authorize
the
International
to
Labour
Organisation
Parties
1948
Freedom of Association
of
concerning
Convention
and
to Organise
legislative
of the Right
to take
Protection
APPENDIX
which
measures
a manner as to
Convention.
that
would
prejudice,
the
prejudice,
Article
or apply
guarantees
the law
provided
I.
in such
for
in
23.
is the natural
1.
The family
and fundamental
group
unit
is
to protection
by society
entitled
and
society
of
and
the State.
2.
The right
of men and women of marriageable
age to
be recognized.
a family
shall
and to found
marry
be entered
into
3.
No marriage
free
shall
the
without
of the intending
consent
spouses.
and full
to
the
Covenant
4.
States
take
parties
present
shall
to
steps
ensure
equality
of
appropriate
rights
and
to
during
of
spouses
as
responsibilities
marriage,
its
dissolution.
In
the
and
at
case
marriage
of
be made for
dissolution,
the
provision
shall
necessary
of any children.
protection
24.
Article
have,
discrimination
1.
Every
child
shall
without
any
language,
colour,
sex,
religion,
national
as to race,
birth,
the
property
to
origin,
or
right
social
by his
of protection
as are
required
measures
status
his
the
family,
on
part
of
society
a minor,
and
State.
Every
2.
birth
and
Every
3.
child
shall
child
or
such
as
the
be registered
immediately
shall
after
have a name.
has the right
to acquire
a nationality.
25.
Article
have the right
Every
shall
citizen
and the opportunity,
in article
2
any of the distinctions
mentioned
without
unreasonable
restrictions:
and without
in the
(a)
To take
part
conduct
of public
affairs,
freely
directly
or through
chosen
representatives;
(b)
To vote
and to be elected
at genuine
periodic
be
by
which
shall
universal
and equal
suffrage
elections
be
held
by
ballot,
the
secret
shall
guaranteeing
and
free
of the will
of the electors;
expression
(c)
To have access,
terms
to
on general
of equality,
in
his
country.
service
public
Article
before
26.
law and are
the
are
equal
All
persons
entitled
discrimination
to
the
any
equal
protection
of
without
law
the
law.
In
this
respect,
shall
the
prohibit
any
to
discrimination
and guarantee
all
persons
equal
and
discrimination
against
protection
on
any
effective
language,
as
race,
colour,
sex,
such
religion,
ground
opinion,
or other
national
or social
origin,
political
birth
or other
status.
property,
Article
27.
States
those
which
ethnic,
In
religious
or
belonging
persons
to such
exist,
minorities
denied
he
the
in
right,
not
community
shall
linguistic
minorities
the
with
APPENDIX
other
culture,
to use
PART
their
of
members
group,
to profess
and practice
their
own language.
to
their
their
enjoy
own religion,
I.
own
or
IV
Article
28.
be established
1.
There
shall
a Human Rights
Committee
(hereinafter
to in the present
referred
Covenant
as the
It
Committee).
shall
consist
of
eighteen
members
and
hereinafter
out the functions
carry
shall
provided.
2.
be composed
The Committee
shall
of nationals
of the
Parties
to
States
the
Covenant
present
be
who shall
high
of
moral
persons
character
and
recognized
in the
field
competence
of human rights,
consideration
being
to the
the
given
usefulness
of
participation
of
having
legal
some persons
experience.
3.
The members
Committee
be elected
of the
shall
and
in their
serve
personal
shall
capacity.
Article
29.
1.
The
the
Committee
members
be elected
of
by
shall
ballot
from
secret
a list
of
persons
the
possessing
in
28 and
prescribed
qualifications
article
nominated
by
for
the
the
State
purpose
Parties
to
the
present
Covenant.
State
2.
Each
Party
to
the
Covenant
present
two persons.
not more than
These persons
nominate
be nationals
State.
of the'nominating
be eligible
3.
A person
for
shall
renomination.
Article
may
shall
30.
1.
The initial
be held no later
election
shall
than
six
date
the
the
into
force
after
of
months
entry
the
of
Covenant.
present
least
four
At
2.
before
date
months
the
of
each
the
Committee,
to
than
election
other
to
an election
declared
in accordance
fill
a vacancy
34,
with
article
Secretary-General
the
the
United
Nations
of
shall
invitation
to the
States
a written
Parties
address
to
Covenant
to
the
their
present
for
submit
nominations
of the Committee
three
within
membership
months.
The Secretary-General
3.
the
United
Nations
of
shall
in alphabetical
a list
the persons
prepare
order
of all
thus nominated,
with
an indication
Parties
of the States
have
them,
it
nominated
and shall
to the
which
submit
Parties
to the present
Covenant
States
than one
no later
before
date
the
of each election..
month
Elections
the
4.
Committee
of
the
be
members
of
shall
the
States
held
Parties
a meeting
at
of
to
the
present
by the
Secretary-General
Covenant
convened
United
of the
Headquarters
the
the
Nations
at
United
Nations.
of
At
for
two thirds
that
which
States
meeting,
Parties
of the
Covenant
the
present
to
shall
constitute
the
a quorum,
to the
Committee
elected
be those
persons
shall
nominees
largest
the
obtain
number
of
who
votes
and an absolute
the
the
of
votes
of
States
majority
representatives
of
present
and voting.
Parties
APPENDIX
Article
I.
31.
1.
The Committee
may not include
more than
one national
of the same State.
2.
In
the
the
Committee,
election
of
consideration
be given
to equitable
shall
distribution
geographical
of
the
and to
membership
representation
different
the
of
forms
of
civilization
the
and
of
legal
principal
systems.
Article
32.
1.
The members of the Committee
be elected
for
shall
a
term of four
They shall
years.
for
eligible
re-election
if
However,
the
terms
renominated.
of
the
nine
of
first
elected
at the
members
election
shall
expire
at
two
immediately
the
of
end
years;
first
the
after
the
these
names
election,
of
nine
be
members
shall
by the Chairman
by lot
chosen
of the meeting
to
referred
30, paragraph
in article
4.
2.
Elections
at the expiry
be held
of office
in
shall
the preceding
with
accordance
articles
of this
part
of
Covenant.
the present
Article
33.
in the unanimous
1.
If,
opinion
of the other
members,
a
the
Committee
has
of
member
to
his
ceased
carry
out
for
functions
any
cause
than
other
absence
of
a
temporary
the Chairman
character,
of the Committee
shall
Secretary-General
the
notify
of the United-Nations,
who
then declare
the seat of that
shall
member to be vacant.
2.
In the event
of the death
or the resignation
of a
the Chairman
immediately
member of- the Committee,
shall
the Secretary-General
Nations,
notify
of the United
who
declare
the seat vacant
from the date of the death
shall
the resignation
takes
or the date on which
effect.
Article
34.
is
When a vacancy
declared
1. in
accordance
with
if
33
the term of office
and
article
of the member to be
does
not
expire
replaced
within
six
the
months
of
declaration
the Secretary-General
of the vacancy,
of the
Nations
United
shall
notify
States
each of the
Parties
Covenant,
the
to
present
which
two months
may within
in
nominations
29 for
accordance
with
submit
the
article
filing
the vacancy.
of
purpose
The Secretary-General
2.
the
United
Nations
of
shall
list
in
a
alphabetical
order
prepare
of the persons
thus
it
to the States
and shall
submit
Parties
nominated
to
Covenant.
The election
to fill
the present
the vacancy
in
take
then
place
accordance
the
shall
with
relevant
of this
part
Covenant.
of the present
provisions
A member of the Committee
3.
to fill
elected
a vacancy
in accordance
33 shall
declared
with
hold
article
office
for
the remainder
of the term of the member who vacated
on the Committee
the provisions
the
seat
under
of that
article.
APPENDIX
I.
35.
Article
the approval
The members of the Committee
shall
with
of
Assembly
the
United
General
Nations,
the
of
receive
from
United
Nations
resources
terms
on such
emoluments
General
the
Assembly
decide,
as
conditions
may
and
importance
to
the
having
the
Committee's
regard
of
responsibilities.
Article
36.
United
the
Nations
Secretary-General
The
of
shall
facilities
for
the
the
and
necessary
staff
provide
functions
the
the
Committee
of
of
performance
effective
Covenant.
the present
under
37.
Article
United
the
Nations
1. The Secretary-General
of
shall
initial
the
Committee
the
the
meeting
of
at
convene
Nations.
Headquarters
of the United
initial
its
the Committee
2.
After
meeting,
shall
meet
be
in
its
times
as
shall
provided
such
rules
of
at
procedure.
Committee
The
3.
shall
United
the
Headquarters
of
office
Nations
at Geneva.
normally
Nations
38.
Article
Committee
the
Every
shall,
member of
declaration
duties,
his
make a solemn
his
functions
he will
that
perform
conscientiously.
or
the
meet
at
the
United
at
before
taking
up
in open committee
impartially
and
39.
Article
its
for
The Committee
1.
shall
elect
officers
a term of
They may be re-elected.
two years.
its
The Committee
2.
shall
establish
own rules
of
inter
but
these
rules
shall
provide,
alia,
procedure,
that:
(a)
Twelve
members shall
constitute
a quorum;
be made by a
(b)
Decisions
of the Committee
shall
the
members present.
vote
of
majority
40.
Article
Parties
Covenant
to the present
The States
1.
undertake
have
they
on the
reports
measures
adopted
to
submit
herein
to
the
rights
effect
recognized
and on
give
which
in
the enjoyment
made
of those
rights:
the progress
into
force
(a)
Within
one year
of the entry
of the
for
States
the
Parties
Covenant
concerned;
present
Committee
the
(b)
Thereafter
whenever
so requests.
be
to
the
All
shall
reports
submitted
2.
the
United
Nations,
of
who
shall
Secretary-General
the
for
to
Committee
them
consideration.
transmit
indicate
factors
if
the
difficulties,
shall
and
Reports
implementation
the
the
of
present
affecting
any,
Covenant.
the
United
Nations
The Secretary-General
of
may,
3.
the
Committee
the
with
transmit
to
consultation
after
agencies
concerned
copies
of
of
such parts
specialized
APPENDIX
I.
fall
field
their
the
as
may
within
reports
of
competence.
the
4.
The Committee
by
shall
study
reports
submitted
Parties
Covenant.
to
the
It
States
the
present
shall
its
reports,
and such
general
transmit
comments
as it
States
to
the
Parties.
The
appropriate,
may consider
transmit
Economic
to the
Committee
may also
and Social
the
these
the
Council
comments
along
with
copies
of
it
has
from
States
Parties
to
the
received
reports
Covenant.
present
Parties
to
the
Covenant
States
The
5.
present
may
Committee
the
to
observations
on any
comments
submit
in
be
4 of this
accordance
with
paragraph
that
made
may
article.
41.
Article
Covenant
Party
to
the
1.
A State
present
may at
any
it
that
declare
this
the
under
article
time
recognises
the
Committee
to
receive
of
and
consider
competence
State
to
the
that
Party
effect
a
claims
communications
is
fulfilling
State
Party
its
that
not
another
Covenant.
the
Communications
present
under
obligations
be
this
received
article
may
and considered
only
under
by
State
Party
has
if
a
which
made
a
submitted
in
itself
declaration
the
regard
recognising
of
Committee.
the
No
by
of
communication
shall
competence
if
it
by
Committee
the
Party
concerns
a State
received
declaration.
has
Communications
a
made
such
not
which
be
in
dealt
this
article
shall
under
with
received
following
to
the
procedure:
accordance
Party
Covenant
(a)
to
the
If
a State
present
is
State
Party
that
another
not giving
effect
considers
it
by
Covenant,
of the
present
may,
to the
provisions
bring
the
to the attention
matter
communication,
written
State
Party.
Within
three
the
that
months
after
of
State
the
the
communication
receiving
shall
of
receipt
State
the
the
an
which
sent
communication
afford
in
any
other
writing
or
statement
explanation,
include,
to
the
the
which
matter
should
clarifying
domestic
to
and
pertinent,
reference
possible
extent
in
taken,
available
remedies
and
pending,
or
procedures
the matter.
is
the
(b)
If
the
to
matter
not
adjusted
both
State
Parties
of
concerned
within
six
satisfaction
the
State
the
the
receipt
of
receiving
of
after
months
have the right
State
initial
either
shall
communication,
by
Committee,
to
the
to
the
notice
given
matter
to refer
State.
and to the other
the Committee
deal
(c)
The Committee
with
a matter
referred
shall
is
have
that
it
ascertained
available
after
all
only
to
in the
have been invoked
and exhausted
domestic
remedies
in
the
conformity
with
generally
recognized
matter,
international
law.
be
This
the
of
shall
not
principles
is
the
the
application
of
remedies
where
rule
prolonged.
unreasonably
hold
(d)
The Committee
shall
closed
when
meetings
this
communications
under
article.
examining
APPENDIX
I.
(c),
to the provisions
(e)
Subject
of sub-paragraph
its
to
shall
make available
the Committee
good offices
Parties
to a friendly
concerned
with
a view
the States
basis
for
human
the
the
of
respect
matter
on
of
solution
fundamental
freedoms
in
the
as
recognized
and
rights
Covenant.
present
to it,
the Committee
(f)
In any matter
may
referred
in
to
States
Parties
the
concerned,
referred
upon
call
information.
(b),
to
relevant
any
supply
sub-paragraph
in
to
Parties
(g)
The States
referred
concerned,
be
have
(b),
the
to
right
shall
sub-paragraph
is
being
in
the
the
considered
matter
when
represented
in
to
orally
and/or
submissions
make
Committee
and
writing.
twelve
(h)
The Committee
within
months
after
shall,
(b),
sub-paragraph
under
of notice
the date
of receipt
a report:
submit
the
terms
(i)
If
within
a
solution
of
is
(e)
Committee
the
shall
reached,
sub-paragraph
brief
facts
its
to
the
a
statement
of
report
and
confine
reached.
of the solution
(ii)
the
terms
If
solution
within
of
a
is
(e)
the
Committee
reached,
not
shall
sub-paragraph
brief
facts;
its
to
the
a
statement
of
reports
confine
the
and
record
of
submissions
oral
the
written
by
States
Parties
the
concerned
shall
made
submissions
to the report.
be attached
In every
matter,
Parties
States
the
report
concerned.
shall
be
communicated
to
the
force
The provisions
shall
article
come into
2.
of this
have
Covenant
Parties
to
the
States
present
ten
when
1
this
declarations
of
article.
under
paragraph
made
be
deposited
by
States
the
declarations
shall
Such
United
Secretary-General
the
the
of
with
Parties
thereof
the
to
transmit
copies
other
who shall
Nations,
A declaration
Parties.
any
may be withdrawn
at
States
Such
Secretary-General.
the
to
by notificaticn
a
time
the
any
consideration
of
prejudice
shall
not
withdrawal
is
the
already
subject
of
a communication
which
matter
further
this
article;
no
communication
under
transmitted
be
the
Party
State
received
shall
after
by
any
has
been
declaration
the
of
of
withdrawal
notification
State
Secretary-General,
the
by
the
unless
received
has
declaration.
made
a
new
Party
concerned
42.
Article
in
Committee
to
the
If
(a)
referred
a
matter
1.
is
the
41
to
not
with
article
-resolved
accordance
the
Parties
States
the
of
concerned,
satisfaction
States
the
the
with
consent
prior
of
may,
Committee
hoc
Conciliation
appoint
an
ad
concerned,
Parties
(hereinafter
Commission).
to
the
referred
as
Commission
be
the
Commissi1on
of
made
offices
shall
The
good
States
the
Parties
to
to
view
concerned
a
with
available
APPENDIX
I.
basis
the
solution
of
matter
on the
an amicable
of
for the present
Covenant;
respect
five
(b)
The Commission
shall
consist
of
persons
States
Parties
the
to
If
the
concerned.
acceptable
fail
to reach
Parties
States
concerned
agreement
within
the
on all
or part
of the
three
composition
months
of
the
Commission
the
Commission,
of
members
concerning
has been reached
be elected
by
shall
whom no agreement
by
ballot
the
a two-thirds
majority
vote
of
secret
from among its
Committee
members.
in their
The members
2.
of the Commission
shall
serve
be
They
the
not
nationals
shall
of
capacity.
personal
Parties
to the
States
concerned,
or of a State
not party
has
State
Party
Covenant,
or
of
a
which
not made
present
41.
declaration
article
under
a
its
3.
The Commission
shall
elect
own Chairman
and
its
of procedure.
own rules
adopt
Commission
be
the
4.
The
of
shall
meetings
normally
United
Headquarters
Nations
held
of the
or at the
at the
Office
Geneva.
Nations
However,
be
they
United
at
may
Commission
held
places
other
convenient
such
as the
at
in
determine
the
Secretary-General
consultation
with
may
Nations
States
Parties
United
and the
concerned.
of the
in
The Secretariat
5.
provided
accordance
with
article
the
36 shall
service
commissions
also
appointed
under
this
article.
information
by
The
the
6.
received
and
collated
be made available
to the Commission
Committee
shall
and
the
States
Commission
Parties
call
upon
the
may
information.
to
relevant
supply
any
other
concerned
has fully
the matter,
When the Commission
7.
considered
later
in
than
twelve
but
event
not
months
after
any
it
been seized
to the
having
of the matter,
shall
submit
for
of
Chairman
communication
of the Committee
a report
Parties
concerned:
the States
is
its
Commission
(a)
If
the
to
unable
complete
it
the
twelve
of
matter
within
months,
consideration
its
brief
to
the
report
a
statement
of
confine
shall
its
of the matter.
consideration
of
status
to the matter
(b)
If
solution
on the
an amicable
human rights
for
in the
basis
as recognised
of respect
is
Covenant
the
Commission
reached,
shall
present
brief
its
facts
to
the
a
statement
report
of
and
confine
reached;
of the solution
the terms
(c)
If a solution
within
of sub-paragraph
the Commission's
(b) is not reached,
report
shall
embody
fact
to the
findings
questions
of
its
relevant
on all
States
Parties
between
the
issues
and its
concerned,
the
of an amicable
of
possibilities
solution
on
views
This
the written
shall
report
also
contain
the matter.
by
the
record
a
of
oral
made
and
submissions
submissions
Parties
concerned;
the States
is
Commission's
the
(d)
If
report
under
submitted
(c),
States
the
Parties
shall,
concerned
sub-paragraph
the
three
of
receipt
months
notify
of the report,
within
of the Committee
whether
or not they accept
the Chairman
of the report
of the Commission.
the contents
APPENDIX
8.
The provisions
to the responsibilities
41.
of
this
I.
article
are without
prejudice
Committee
of the
under
article
Parties
9.
The States
concerned
shall
share
equally
the
Commission
the
the
of
members
of
expenses
be
to
by
with
estimates
provided
accordance
Nations.
United
Secretary-General
of the
all
in
the
Nations
10. The Secretary-General
of the United
shall
the
the
to
of
pay
expenses
members
of
empowered
if
before
by
Commission,
reimbursement
necessary,
in accordance
Parties
States
concerned,
with
paragraph
article.
of this
be
the
the
9
Article
43.
the
Committee,
hoc
the
The
of
and
of
ad
members
be
commissions
which
may
appointed
under
conciliation
be
42,
facilities,
to
the
shall
entitled
article
immunities
for
the
and
of
experts
on mission
privileges
down in
Nations
the
United
as laid
relevant
sections
of
Privileges
Immunities
Convention
on the
the
the
and
of
Nations.
United
44.
Article
for
implementation
the
the
The provisions
of
present
to the procedures
Covenant
apply
without
prejudice
shall
in
field
human
the
by or under
the
of
rights
prescribed
instruments
the
the
and
conventions
of
constituent
Nations
United
and of the specialized
agencies
and shall
States
Parties
the
to
the
Covenant
present
prevent
not
for
to other
from having
recourse
procedures
settling
a
in
dispute
accordance
with
general
or
special
in force
between
international
them.
agreements
45.
Article
General
to
the
The Committee
shall
submit
Nations,
through
the
Economic
United
the
on its
Council,
report
activities.
an annual
PART
Assembly
of
Social
and
46.
Article
in the present
Covenant
be interpreted
Nothing
shall
as
the
Charter
the
United
impairing
provisions
of
of the
the
the
constitutions
of
Nations
of
specialised
and
define
the
respective
responsibilities
which
of
agencies
United
the
Nations
the
of
organs
and of
the
various
in
dealt
to
the
regard
agencies
matters
with
specialized
Covenant.
in the present
Nothing
impairing
utilize
resources.
PART
VI
47.
Article
in the present
Covenant
be interpreted
shall
the inherent
to enjoy
right
of all
peoples
freely
fully
their
and
natural
wealth
as
and
and
LiYYLJ
1.
The present
Member of
State
its
specialized
Statute
of the
State
any other
Assembly
of the
Covenant.
present
The
2.
present
Instruments
of
Secretary-General
u. LA
1.
48.
Article
is
for
Covenant
by any
open
signature
Nations
the United
or member of any of
by any
State
Party
to
the
agencies,
Court
International
Justice,
of
and by
has been invited
by the
General
which
Nations
to become a party
United
to the
Covenant
ratification
of the
is
to
subject
ratification.
be deposited
shall
with
Nations.
United
the
be open to accession
by
Covenant
3.
The present
shall
in
1
to
of this
State
paragraph
article.
referred
any
by the
be effected
deposit
Accession
4.
shall
of an
Secretary-General
the
instrument
with
accession
of
of
Nations.
the United
United
the
Nations
5.
The Secretary-General
of
shall
have
this
Covenant
States
inform
signed
which
or
all
it
deposit
instrument
the
to
of
each
of
or
acceded
or accession.
ratification
49.
Article
into
force
Covenant
three
The present
1.
shall
enter
deposit
date
the
the
the
of
with
after
months
United
Nations
the
the
of
Secretary-General
of
instrument
of ratification
or instrument
thirty-fifth
of
accession.
the
Convenant
For each State
ratifying
present
2.
or
deposit
it
the
the
thirty-fifth
to
of
after
acceding
instrument
or instrument
of accession,
of ratification
into
force
Covenant
three
shall
enter
months
the present
its
instrument
deposit
date
the
the
of
own
of
of
after
instrument
of accession.
or
ratification
The provisions
of
parts
all
exceptions
50.
Article
Covenant
of the present
shall
extend
federal
States
without
any limitations
Article
to
or
51.
Covenant
Party
to the
Any State
present
may propose
1.
it
file
Secretary-General
the
with
of
and
an amendment
The Secretary-General
the
United
Nations.
United
of
the
thereupon
communicate
any
proposed
shall
Nations
Parties
State
Covenant
the
to
the
to
present
amendments
him
favour
they
they
that
notify
whether
a request
with
for
States
Parties
the
of
of
purpose
conference
a
the
In
the
upon
event
voting
proposals.
and
considering
favours
the
States
least
third
Parties
of
one
at
that
United
the,
the
under
auspices
of
conference
a
such
by
the
Any
adopted
of
a
amendment
majority
Nations.
the
Parties
and
voting
present
at
conference
States
General
United
Assembly
to
the
the
be
of
submitted
shall
for
approval.
Nations
into
been
force
have
they
shall
come
Amendments
when
2.
General
Assembly
by
Nations
the
United
the
of
approved
by
two-thirds
States
the
a
majority
of
accepted
and
APPENDIX
I.
in accordance
Covenant
to the present
Parties
their
with
constitutional
respective
processes.
into
force,
be
3.
When amendments
they
come
shall
States
Parties
have
binding
on those
which
accepted
States
being
Parties
bound
by the
them,
still
other
the
Covenant
of
present
provisions
and
any
earlier
have accepted.
they
amendment which
Article
52.
48,
Irrespective
of the notifications
made under
article
5, the Secretary-General
Nations
of the United
paragraph
inform
in paragraph
States
1 of
to
referred
all
shall
the same article
of the following
particulars:
(a)
Signatures,
ratifications
and accessions
under
48;
article
into
(b)
force
The date of the entry
of the present
49 and the date of the entry
into
Covenant
under
article
51.
force
of any amendments
under
article
Article
53.
1.
Covenant,
The present
Chinese,
the
English,
of which
Russian
texts
French,
and Spanish
are
equally
authentic,
in
be
deposited
the
United
the
archives
of
shall
Nations.
2.
The Secretary-General
United
the
of
transmit
certified
copies
of the present
48.
to in article
States
referred
Nations
Covenant
shall
to all
II.
APPENDIX
PROTOCOL TO THE
THE OPTIONAL
RIGHTS.
AND POLITICAL
CIVIL
The
States
Parties
to
the
present
INTERNATIONAL
APPENDIX
II.
COVENANT
ON
Protocol,
in
further
to
the
that
Considering
order
achieve
Rights
Covenant
Political
the
on Civil
and
of
purposes
Covenant)
to
the
(hereinafter
the
referred
as
and
it
be appropriate
implementation
would
of its
provisions
IV
Committee
Human Rights
the
to
set
up in
part
enable
(hereinafter
the
to
Covenant
the
referred
as
of
in
the
to
Committee)
consider,
as provided
receive
and
individuals
from
Protocol,
communications
present
be
the
to
of
violations
of
any
of
victims
claiming
in
forth
Covenant.
the
set
rights
Have
agreed
as
follows:
1.
Article
becomes
Covenant
to
to the
that
Party
A State
a party
Protocol
the
the
the
recognizes
competence
of
present
from
to
Committee
receive
and consider
communications
jurisdiction
to its
to be
individuals
who claim
subject
by
State
Party
that
of any of the
of
violation
victims
in the Covenant.
No communication
shall
set forth
rights
if
it
by the
Committee
be received
concerns
a State
is
to
the
Covenant
the
to
Party
which
not
a party
Protocol.
present
2.
Article
1, individuals
to the provisions
Subject
who
of article
in
the
that
their
enumerated
rights
any
of
claim
have been violated
Covenant
all
and who have exhausted
domestic
written
a
may
submit
remedies
available
for
to the committee
consideration.
communication
3.
Article
inadmissible
Committee
any
The
consider
shall
is
Protocol
the
which
under
present
communication
be
it
to
an abuse of the
which
considers
or
anonymous,
be
to
or
communications
submission
of
such
of
right
incompatible
the provisions
with
of the Covenant.
4.
Article
3,
the
to
the
1.
Subject
article
of
provisions
it
bring
to
Committee
submitted
shall
any communications
State
the
Protocol
the
to
the
of
attention
present
under
to be violating
Protocol
to the
Party
alleged
present
of the Covenant.
any provision
State
2.
Within
shall
submit
the receiving
six
months,
Committee
the
statements
to
or
written
explanations
if
that
the
the
any,
may
remedy,
matter
and
clarifying
by that
have been taken
State.
carr4.
ivuin
11.
5.
Article
1.
The committee
shall
consider
communications
received
in
light
Protocol
the
the
written
of all
present
under
by the
individual
to it
information
made available
and
Party
concerned.
by the State
2.
The Committee
shall
consider
any communication
not
it have ascertained
that:
unless
from an individual
being
is
(a)
The same matter
not
under
examined
international
investigation
of
or
procedure
another
settlement;
individual
has
The
(b)
exhausted
all
available
domestic
remedies.
the
be
the
the
application
of
rule
where
This
not
shall
is
prolonged.
unreasonably
remedies
hold
Committee
closed
meetings
when
The
shall
3.
the
Protocol.
present
under
communications
examining
its
forward
State
to the
views
shall
4.
The Committee
individual.
to
the
and
Party
concerned
6.
Article
include
in its
report
annual
under
shall
The committee
its
Covenant
45
the
of
activities
a
summary
of
article
Protocol.
the
present
under
7.
Article
the achievement
of resolution
of the objectives
Pending
by the General
United
Assembly
of the
1514(XV)
adopted
1960 concerning
Declaration
the
Nations
on 14 December
Countries
Colonial
Independence
to
Granting
of
the
on
Protocol
the
the
of
present
Peoples,
provisions
and
to
limit
the
in
granted
right
petition
of
way
no
shall
Nations
United
by
Charter
the
the
and
of
these
peoples
instruments
international
under
conventions
and
other
its
Nations
specialised
United
agencies.
and
the
8.
Article
is
by
for
Protocol
any
open
signature
The
1.
present
Covenant.
the
has
signed
State
which
is
by
to
Protocol
subject
ratification
The
2.
present
Covenant.
has ratified
to
the
or
acceded
State
which
any
be
deposited
the
shall
with
ratification
of
Instruments
United
Nations.
the
of
Secretary-General
by
be
to
Protocol
shall
accession
open
The
present
3.
Covenant.
has
to
the
or
acceded
ratified
State
which
any
be
by
deposit
the
of
an
effected
Accession
shall
4.
the
Secretary
General
with
of
accessions
of
instrument
Nations.
United
the
the
United
Nations
Secretary-General
of
shall
5.
have
Protocol
the
States
signed
present
which
inform
all
deposit
instrument
it
the
to
of
of
each
of
acceded
or
accession.
or
ratification
The
APPENDIX
II.
9.
Article
into
force
to the entry
1.
Subject
the
of the Covenant,
into
force
Protocol
three
shall
enter
months
present
deposit
date
the
Secretary-General
the
the
of
with
after
instrument
Nations
United
the
tenth
the
of
of
of
instrument
or
of accession.
ratification
State
the
Protocol
2.
For
ratifying
present
each
or
it
instrument
deposit
the
the
tenth
to
after
of
acceding
instrument
the
or
or accession,
present
ratification
of
into
force
three
the
Protocol
enter
months
shall
after
its
deposit
instrument
the
date
of
own
of
of
instrument
or
of accession.
ratification
The provisions
of
parts
all
exceptions.
10.
Article
Protocol
of the present
shall
extend
federal
States
without
any limitations
to
or
11.
Article
Party
to the present
Protocol
Any State
1.
may propose
it
file
Secretary-General
the
and
with
of
an amendment
Nations.
The
Secretary-General
United
the
shall
to
the
any
proposed
thereupon
communicate
amendments
to the
Protocol
Parties
present
States
with
a request
him whether
favour
they
they notify
that
a conference
of
for
the purpose
Parties
of considering
States
and voting
In the event
that
at least
one third
upon the proposal.
favours
Parties
States
the
the
such
a conference,
of
the conference
the
shall
convene
Secretary-General
under
Nations.
by
United
Any
the
amendment
adopted
of
auspices
States
Parties
the
present
of
and voting
at
majority
a
be
to
General
the
shall
submitted
the
conference
for
Nations
approval.
of the United
Assembly
force
have been
Amendments
come into
2.
shall
when they
by
General
Assembly
the
United
Nations
the
of
approved
by
two-thirds
States
the
a
majority
of
accepted
and
in
Protocol
their
the
to
accordance
present
with
Parties
processes.
constitutional
respective
into
force,
be
they
When amendments
come
3.
shall
Parties
being
States
bound by the
still
binding
on those
Protocol
the
present
and
of
any
earlier
provisions
have accepted.
they
which
amendment
12.
Article
Party
the
Protocol
may denounce
Any State
present
at
1.
by
to
the
notification
time
addressed
written
any
United
Nations.
the
Denunciation
of
Secretary-General
date
three
the
months
after
take
of receipt
effect
shall
by
Secretary-General.
the
the
notification
of
be
to
the
without
Denunciation
shall
prejudice
2.
the
the
of
provisions
of
present
application
continued
2
to any communication
submitted
under
article
Protocol
date of denunciation.
the effective
before
APPENDIX
II.
13.
Article
8,
Irrespective
made under
of the notifications
article
Protocol,
5,
Secretarythe
the
present
of
paragraph
inform
Nations
United
States
the
General
shall
of
all
48,
in
1, of the Covenant
Article
to
paragraph
referred
particulars:
of the following
(a)
Signatures,
ratifications
and accessions
under
8;
article
into
force
(b)
The date of the entry
of the present
9 and the date
into
Protocol
of the entry
article
under
11;
force
under
article
of any amendments
12.
(c)
Denunciations
article
under
Article
1. The
French,
shall
Nations.
14.
the
Protocol,
of which
present
texts
Russian
are
and Spanish
in
deposited
be
the
archives
Chinese,
English,
equally
authentic,
United
the
of
United
Nations
the
2.
The Secretary-General
of
Protocol
transmit
of the present
copies
certified
48 of the Covenant.
to in article
States
referred
shall
to all
APPENDIX III.
Committee
Date:
Centre
Office,
Nations
United
Protccul.
To:
Corm unication
c/o
The Optional
Under
Coirnunication
Model
Geneva (Switzerland).
for
Sufmitted
consideration
to the International
Protocol
the
under
Covenant
optional
on civil
and
Rights.
Political
Concerning
I. Information
The
Author
Of
The
Conrrnanication.
(s)
NaT*3
Name
First
Nationality
Profession
Address
Address
for
of birth
exchange
than present
other
of confidential
address):
the canminication
Sulmitting
as:
(a) victim
of the violation
forth below
or violations
set
1
of the alleged
(b) representative
victim(s)
(c) other
If
the
_
author
representative
indicate
clearly
If
the
author
is
submitting
of
the
the
alleged
in what capacity
is neither
the
communication
victims(s)
he
he is doing
so:
victim
nor
indicate:
he
should clearly
representative,
(a) his reasons for acting
on behalf
victim(s)
(b) his
(are)
for
reasons
unable
to
believing
submit
that
a
of
the
the
box or boxes.
as
should
his/their
alleged
victim(s)
communication
(themselves):
(if
correspcndence
is
himself
AYYt; NUIX
(c)
his
than
other
that
on his
acting
Concerning
Information
(If
telleving
the author's
approve
II.
for
reason
the
victim(s)
(their)
The Alleged
2
Author).
Victim(s).
Name (s)
First
Nationality
Profession.
of birth
address or whereabouts
Name (s)
Nahe
First
Nationality
Profession.
Date
of
and place
Present
birth
or whereabouts
address
Name (s)
Name
First
Nationality
Profession.
Date
of
and place
Present
birth
or whereabouts
address
Name (s)
Name
First
Nationality
Profession.
Date
of
and place
Present
address
III.
State
Remedies/
Name of
would
behalf:
Name
Present
III.
birth
or whereabouts
Concerned/Articles
Other
International
the State
party
Procedures.
(country)
of
Political
Rights
to
Protocol
Covenant
Articles
Violated/Dcmestic
International
the
International
against
Covenant
on
which
the
Civil
and
allegedly
violated:
Steps taken by or on behalf of the alleged victim(s)
(recourse
danestic
to the courts
remedies
exhaust
other public
if possible,
administrative
authorities,
enclose copies
decisions:
relevant
what results
judicial
individually
List each victim
and add as many
of victims.
pages as necessary to complete the list
to
or
and
APPENDIX III.
dcinestic
If
have
remedies
not
been
exhausted,
explain
why:
Has the same matter
another
procedure
If
settlement?
IV.
Facts
of
been submitted
international
of
examination
investigation
under
or
what results?
Claim.
Detailed
description
violation
or violations
for
of
the
facts
(including
of
relevant
this
the
alleged
3
dates).
description.
APPENDIX
Comment
General
The Covenant.
15
(27):
The
Position
Of-Aliens
IV.
Under
have often
from States
failed
1. Reports
to take
parties
into
that
State
the
party
account
each
must
ensure
"all
individuals
in
Covenant
the
to
its
rights
within
its
jurisdiction"
to
(art.
territory
2,
and
subject
in' the
the rights
Covenant
set - forth
pr. 1) .. In general,
irrespective
to
everyone,
of
reciprocity,
apply
and
irrespective
of his
or her nationality
or statelessness.
is that
2. Thus,
the general
rule
each one of the rights
between
must be guaranteed
citizens
of the Covenant
and
benefit
Aliens
the
the
receive
of
aliens.
general
in
the
of
non-discrimination
respect
of
requirement
in
Covenant,
in
the
for
guaranteed
as provided
rights
2 thereof.
This
to aliens
guarantee
applies
article
and
Exceptionally,
the
alike.
some
of
citizens
rights
in the Covenant
are expressly
applicable
recognized
only
(art. 25),
13 applies
to citizens
to
while
article
only
However,
the
Committee's
experience
aliens.
examining
in a number
shows that
of countries
reports
other
rights
Covenant
denied
the
that
should
enjoy
under
aliens
are
to limitations
that
to them or are subject
cannot
always
the Covenant.
be justified
under
for
3. A few constitutions
provide
equality
of
aliens
Some constitutions
citizens.
adopted
more recently
with
distinguish
fundamental
that
to
rights
apply
carefully
to citizens
granted
only,
and those
and deal
with
all
in
detail.
however,
In
States,
the
many
each
in
drafted
terms
are
of citizens
only
when
constitutions
law may
Legislation
relevant
rights.
and case
granting
important
in
for
the rights
an
part
providing
play
also
informed
in
has
been
Committee
that
The
some
aliens.
of
fundamental
though
to
States
guaranteed
rights,
not
by
legislation,
Constitution
the
or
other
will
aliens
by the Covenant.
be extended
to them as required
In
also
however,
been a failure
has clearly
there
cases,
certain
discrimination
Covenant
the
to implement
rights
Without
in respect
of aliens.
in-their
that
States
4. The Committee
considers
reports
to the position
give
attention
of aliens,
should
parties
law
in
their
The
both
practice.
and
under
actual
aliens
the
Covenant
gives
all
regarding
protection
..
its
therein,
and
guaranteed
requirements
should
rights
by States
in
legislation
their
be observed
parties
and
The position
in practice
as appropriate.
of aliens
would
improved.
be considerably
thus
parties
should
"States
the
Covenant
that
the
and
provisions
of
ensure
-the
it
known
their
to
under
are
made
within
aliens
rights
jurisdiction.
does not
the right
5. The Covenant
of aliens
recognize
in the territory
It
to enter
or reside
party.
of a'State
for
is in principle
the state
to. decide
a matter
who it
,
its
to
in
territory.
'-However-,
admit
certain
will
an alien
the
may enjoy
of the
circumstances
protection
in
for
Covenant
even
relation
to
residence,
entry
or
when . considerations
example,
of
non-discrimination,
inhuman
treatment
for
family
of
prohibition
and respect
life
arises.
for
6. Consent
entry
to conditions
may be given-subject
for
example,
to
relating,
residence
and
movement,
A
State
impose
may also
employment.
conditions
general
APPENDIX
IV.
is
in
transit.
However,
'once
who
alien
upon
an
aliens
to enter
the territory-of
are allowed
they
a State
party
in the Covenant.
to the right'set
out
are entitled
7. Aliens
thus have an inherent
to life,
right
protected
be arbitrarily
by law,
deprived
life.
and may not
of
be
to
They
torture
to
subjected
may not
or
cruel,
inhuman
treatment
or degrading
or
punishment;
nor
may
in
be held
have
they
Aliens
slavery
the
or servitude.
liberty
full
to
the
If
right
and security
of
person.
deprived
liberty,
lawfully
their
they
be
of
shall
humanity
for
inherent
treated
the
with
and with
respect
dignity
their
be imprisoned
Aliens
of
person.
may not
fulfil
failure
for
to
They
a contractual
obligation.
have the right
to liberty
of movement
and free
choice
of
be to
leave.
they
the
Aliens
shall
country.
residence;
before
be equal
the
tribunals,
courts'
and
shall
and
be entitled
hearing
to
by a
a fair
and. ' public
shall
independent
impartial
tribunal
and
competent,
by law in the determinetion
established
of any criminal
in
law.
or of rights
and obligations
charge
a' suit
at
be subjected
to
Aliens
not
shall
retrospective
penal
legislation,
to recognition
before
and are entitled
the
law.
They may not be subjected
to arbitrary
or unlawful
* family,
interference
their
home
with
privacy,
or
have
They shall
the right
to freedom
correspondence.
of
thought,
to hold
conscience
and religion,
and the right
them.
Aliens
the benefit
and to express
receive
opinions
freedom
the
right
of
peaceful
assembly
and of
of
of
They
may marry
when
at marriageable
association.
age.
to 'those
Their
are
children
entitled
measures
of
by their
In those
required
as minors.
status
protection
the
aliens
where
constitute
a minority
cases
within
27,
be denied
they
the
of
article
shall
not
meaning
in community
with
other
members
of their
group,
right,
their
to
to
own culture,
enjoy
profess
and
practice
their
and to use their
own language.
aliens
own religion
by, the law,
there
to equal
protection
shall
are entitled
between
in the
be no discrimination
aliens
and citizens
These
of these
rights.
right
of aliens
may
application
by such limitations
be qualified
only
as may be lawfully
imposed
the Covenant.
under
is
lawfully
his
8. Once an alien
a territory,
within
freedom
the
territory
within
of movement
and his
right
leave
that
territory
be
in
to
may
only
restricted
12, paragraph
3. Differences
in
with
article
accordance
in this
between
treatment
regard
aliens
and nationals,
different
be
categories
of
aliens,
need to
or between
justified
12,
3.
Since
under
article
such
paragraph
inter
be consistent
the
must,
with
alia,
restrictions
in the
Covenant,
recognized
rights
party
a State
other
by restraining
him to a
an alien
cannot,
or deporting
his return
to his
third
arbitrarily
country,
own
prevent
(art.
12, pr. 4).
country
have given
insufficient
information
9. Many reports
on
to
is
13.
relevant
That
article
matters
article
to
all
procedures
the
applicable
obligatory
aimed
at
departure
law
of an"alien,
in national
described
whether
If
or
otherwise.
as expulsion
entail
procedures
such
the
safeguards
to the
the
arrest,
Covenant
of
relating
liberty
deprivation
(arts.
of
be
1u)
9 and
may also
If
the arrest
is
applicable.
for
the particular
purpose
law
extradition,
of
other
provisions
may
national
of
APPENDIX
IV.
Normally
an alien
who is expelled
apply.
must be allowed
for
that
to leave
t'o'tc: ke him.
any country
agrees
The
13
rights
of
those
article
particular
only
protect
in
lawfully
the
territory
are
who
aliens
of
a State
This
that
law
means
national
the
party.
concerning
for
be
into
taken
entry
and
stay
requirements
must
in
determining
the scope
of that
account
protection,
and
illegal
that
longer
entrants
and aliens
who have
stayed
in particular,
the law or their
than
permits
allow,
are
its
by
if
However,
legality
the
provisions.
covered
not
is
in dispute,
or stay
entry
of an alien's
any decision
leading
to his
deportation
point
expulsion
on this
or
in accordance
to be taken
13. Is is
with
article
ought
for
the
the
State
in
competent
authorities
of
party,
to apply
and in the exercise
of their
good faith
powers,
law,
the domestic
however,
observing,
and interpret
such
the
Covenant
before
the
under
requirements
as equality
(art. 26).
law
13 directly
10.
Article
the
regulates
only
procedures
for
the
However,
substantive
grounds
expulsion.
and not
"in
those
by allowing
only
carried
out
pursuance
of
a
in
decision
law",
its
the
reached
accordance
with
is
to prevent
On
clearly
arbitrary
purpose
expulsions.
it
hand,
in
to a decision
the other
entitles
each alien
hence,
13 would
his
be
case
and,
own
article
not
laws
decisions
for
with
or
providing
satisfied
in
This
or mass
expulsions.
understanding,
collective
is
the
Committee,
by further
the
of
opinion
confirmed
tothe
concerning
right
submit
reasons
provisions
decision
by
the
expulsion
and to have
reviewed
against
be
before
to
the
represented
competent
authority
and
or
designated
by it.
be given
full
An alien
must
someone
for
his
facilities
pursuing
remedy
against
expulsion
so
in
his
this
the
that
right
will
all
circumstances
of
13
The principles
one.
of article
case be an effective
to appeal
against
expulsion
and the entitlement
relating
by a competent
be departed
to review
authority
may only
from
when "compelling
reasons
of
security"
national
so
be
between
Discrimination
may
made
not
require.
in
different
the
categories
of
aliens
application
of
13.
article
APPENDIX
General
Comment
16
(32):
Article
IV.
17.
for
17 provides
the right
1. Article
to
of every
person
interferences
be protected
against
arbitrary
or unlawful
family,
home
his
or correspondence.
privacy,
with
as well
his
honour
unlawful
attacks
on
against
as
and
right
Committee
is
In the
this
view
of the
reputation.
to be guaranteed
against
all
such'interferences
required
from
they
State
whether
emanate
authorities
and attacks
legal
from
The
natural
or
persons.
obligations
or
by
imposed
this
the
State
to
article
require
adopt
legislative
to
to
the
and other
measures
give
effect
interferences
against
such
and
as
attacks
prohibition
of this
right.
as to the protection
well
the Committee
to point
2. In this
connection,
wishes
out
in
the
to
the
Covenant
that'
reports
of States
parties
is
being
to
the
attention
not
necessary
given
in which
information
the
for
concerning
mannerrespect
is guaranteed
by legislative,
this
administrative
right
in
judicial
by the competent
authorities,
and
general
or
by
State.
the
In
established
particular,
organs
is paid
fact
insufficient
to the
that
attention
article
deals
Covenant
both
17 of
the
with
protection
against
interference.
it
This
and arbitrary
means that
unlawful
in
legislation
State
is
that
precisely
above
all
be
for
the
made
must
protection
of the
right
provision
in that
forth
At present
the reports
article.
either
set
legislation
about
such
or
nothing
provide
say
information
insufficient
on the subject.
"unlawful"
that
3. The term
means
no interference
can
in
by
law.
take
envisaged
except
cases
place
by States
take
Interference
place
on
can only
authorized
law,
itself
basis
the
the
which
comply
with
of
must
aims and objectives
of the Covenant.
provisions,
is
"arbitrary
interference"
4.
The
also
expression
for
in
the
the
to
protection
right
provided
of
relevant
the
17.
Committee's
In
the
view
expression
article
interference
interference"
"arbitrary
to
can also
extend
for
law.
introduction
the
the
The
under
of
provided
is
intended
to guarantee
that
of
arbitrariness
concept
be
in
interference
for
by
law
provided
should
even
the
with
provisions,
and objectives
of
aims
accordance,
in
be,
in any event,
the Covenant
reasonable
and should
the particular
circumstances.
"family",
term
the
the
the
Regarding
5.
of
objectives
for
(the)
17
that
Covenant
of
article
require
purposes
interpretation
include
be given
to
term
a broad
all
this
family
in the
the
society
those
as understood
comprising
in
"home"
State
term
The
the
party
concerned.
of
in
"manzel"
"zhuzhai"
in
Chinese,
Arabic,
English,
in
"zhilische"
in
French,
Russian
"domicile"
and
in
Spanish,
17 of
in
the
"domicilio"
as
used
article
is
be
to
indicate
the
to
Covenant,
understood
place
his
person
resides
a
usual
or
carries
out
where
invites
In
this
Committee
connection,
the
occupation.
in their.
in
to indicate
States
given
reports'the
meaning
to the
terms
"family"
"home".
their
society
and
Committee
The
6.
considers
that
information
include
on the authorities
legal
the
system
within
of the State
interference
to
authorize
allowed
to
have
indispensable
information
the
should
reports
set up
and organs
are competent
which
is
by law.
It
also
authorities
on the
APPENDIX
IV.
to
entitled
are
which
exercise
control
over
such
interference
for
the law,
with
strict
regard
and to know
in
through
what
manner
and
which
organs
persons
the
may complain
of
a violation
concerned
of
rights
in
for
17 of
the
Covenant..
States
article
provided
in their
the
to which
reports
make clear
should
extent
to the law.
State
conforms
practice
actual
party
reports
information
lodged
in
contain
also
on complaints
should
interference,
of arbitrary
or unlawful
respect
and the
findings
in
that
of
any
regard,
number
as well
as the
in such cases.
provided
remedies
in
live
7. As all
the
persons
society,
protection
of
is necessarily
However,
the
relative.
privacy
competent
be able
for
to call
authorities
should
only
such
public
information
life-the
to an individual's
relating
private
is
in
interests
knowledge
the
of
which
essential
of
Covenant.
the
Accordingly,
as understood
under
society
indicate
in
that
States
the Committee
recommends
should
laws
the
their
that
reports
and
regulations
govern
interferences
life.
with
authorized
private
8. Even with
to interferences
that
to the
regard
conform
legislation
in
detail
Covenant,
relevant
must
specify
in
interferences
the
circumstances
precise
which
such
A decision
to
permitted.
may be
make
use
of
such
interference
be
by
the
must
made
authorized
only
designated
law,
the
under
authority
on
and
a
basis.
Compliance
17 requires
case-by-case
with
article
the integrity
that
and confidentiality
of correspondence
be
jure
de
de
facto.
guaranteed
and
should
be
delivered
the
to
Correspondence
should
addressee
interception
being
opened
without
and
without
or
Surveillance,
read.
electronic
whether
or
otherwise
interceptions
telegraphic
of telephonic,
and
otherwise,
forms
of communication,
and recording
other
wire-tapping
be prohibited.
Searches
should
of
conversations
of
a
home
be
for
to
should
a search
restricted
person's
to amount
evidence
and should
not. be allowed
necessary
is
So far
to harassment.
as personal.
search
and body
that
effective
measures
ensure
concerned,
should
such
the
are carried
out in a manner
with
consistent
searches
being
dignity
Persons
the
person
of
who is
searched'.
by State
to a body search
being
officials,
or
subjected
the
'acting
the
personnel
of
medical
at
state,
request
be examined
by persons
only
of the, same sex.
should
themselves
9. States
to
parties
are
under
not
a duty
interferences
in
inconsistent
17
article
with
of
engage
framework
legislative
Covenant
the
the
and to
provide
by natural
such acts
persons.
prohibiting
or legal
information
10. The gathering
and holding
of personal
on
databanks
by
devices,.
whether
computers,
and
other
,
bodies,
individuals
authorities
or
or
private
public
be regulated
by law.
be
Effective
must
must
measures
by States
to ensure
information
taken
that
concerning
a
life
hands
does
the
private,
person's
of
not
reach'
law
to
by
who
are
not
persons
receive,
authorized
it,
for
is
and
use
process
and
purposes
never'
used
incompatible
the
have
Covenant.
to
the
with
In
order
effective
his
protection
most
every
of
private
-life,
individual
have
in
should
the
to
an
ascertain
right
form,
intelligible
if
whether,
personal
what
so,
and
is
in
data
stored
files,
automatic
data
what
an for
Every
individual
be
to
purposes.
able
also
should
APPENDIX
IV.
ascertain
which
public
authorities
or
private
individuals
bodies
or
control
their
or
may
control
incorrect
files.
If
data
such files
contain
personnel
or
been
have
collected
or
processed
to
the
contrary
law,
individual
have
of the
every
the
provisions
should
to request
rectification
or elimination.
right
17 affords
11. Article
to personal
honour
protection
and
to provide
and States
are under
an obligation
reputation
legislation
to that
Provision
be
end.
adequate
must also
for
be
to
to
everyone
effectively
made
able
protect
himself
do occur
that
against
any unlawful
attacks
and
those
to have an effective
remedy
against
responsible.
indicate
in their
States
to what
parties
should
reports
individuals
honour
is
the
reputation
of
or
extent
by law
is
and how this
protection
protected
achieved
legal
to their
system.
according
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