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McGoldrick, Dominic (1988) The practice and procedure

of the Human Rights Committee under the International


Covenant on Civil and Political Rights. PhD thesis,
University of Nottingham.
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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

The HRC have not

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

See ch. 11 below

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

SR 284 prs. 33-35


Lanka).
on Sri

(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

See pr. 6.11


See

above.

Docs. CCPR/C/1/Add.
representatives).

13

See Docs. CCPR/C/1/Add.


(State
representatives).

17,

See Docs. CCPR/C/1/Add.


(State
representatives).

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

what ways did property


in
fact
the
view
of

been

indicated

clearly

66

2(l).

Article

was

"Everyone

was

440

in

status"

of

proponent

See SR 110 pr. 5

(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

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Rights

in

administrative

any

rights

he

of

provisions
and

an

as
Covenant,

possible,

of

of

States

the

the

to

that

Article
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United

the

legal

principle

in

entirely

advisable

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in

should
invoke
to

the

character

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the

recognized
it

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the

and
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rules

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United

legal

obligations.

the

all

as

system

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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

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claim

popularis;

severe
element

with

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depends

article

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of

Lords

remedy"

considerable

paragraph

the

ultimately

Commensurate

devoted

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terms

practical

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periodic

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of the
distinction

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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

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initiate

directly

before

the

Covenant,

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could

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covenant

tribunal

administrative

court,
for

90

of
appeal;
invoking

proceedings
a

the

to

counter

45L

possibilities

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and

authority

a law

annulment

of

and

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or
ran

which

of

one
matter
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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

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preventative

as

any

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apply

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exercise

appeal

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decision
the

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as

by

would
decision

See e. g.,

91

See
Czechoslovakia),

different
96
was
challenged;

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pr. 3

an

administrative

be

body

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64
SR
e. g.,
SR 67 pr. 59

an

against

appellate

SR 356

conditioned

in
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cases
what
95
in what circumstances

statute;

appeal
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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

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of

possibility

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could

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and

from
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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
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unable
are
ICCPR
the
that
claim
cite
any examples.
93
94

See Doc. A/35/40

pr. 125

" See

e. g.,

SR

See
Czechoslovakia).

e. g.,

SR

98

(Iraq).
pr.

26

(Mora-Rojas

on

(Koulishev

on

Yugoslavia).
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96

See e. g.,

99

SR 187 pr. 17

pr.

33

(Tomuschat

on Poland).

.,.

free
system
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legal

were

services
98
detention;

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authorities
99
taken;
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in

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of

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More

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prompted
Ombudsmen,
evidence,
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general

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103
of

claim

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for

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concerned.

97
98
99

or

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to

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especially
part.
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of

nature

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Optional

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or

on Bulgaria).

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SR 187 pr. 25

(Lallah

on Poland).

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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
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the

USSR);

SR 430

SR 69
Canada);
441
SR
pr. 23
Government"
of

(Tomuschat

on Guyana).

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on U. K. ).

pr. 29

the

remedies

whether

party,

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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

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was

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available,
100
the
moral;

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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
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judicial,

other

authorities

State".

the

of

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In

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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

See ch. 10 below.


See

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

See ch. 4 above.


See ch. 5 above
See pr. 4.30
Ibid.,

chs. 7-12

below.

above.

pr. 12.

See pr. 6.12


S. D.

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)

See ch. 6, prs. 6.11-6.12


on the
above
article
general
under
obligation
and
ch. 1,
universality
pr. 1.34
on the

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

14 see ch. 10 below.


Airey
Ireland,
v.

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

See ch. 10,

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

See pr. 6.3


See pr. 6.11

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

See SR 142 pr. 5 (Tarnopolsky


See SR 422 pr. 7 (Al

See SR 170 pr. 84


at SR 172 pr. 7.

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 604 pr. 36


was no civil
pr. 25 ("there
608 pr. 51 (Tomuschat).
39
40

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

See SR 604 pr. 36 (Tomuschat),


reply
in
("there
Afghanistan")
25
was
no civil
war
pr.
608 pr. 51 (Tomuschat).
39
See SR 469 pr. 33 (Graefrath).
40

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

SR 265 pr. 6 (Tarnopolsky


See e. g.,
on Barbados).
Barbados,
the
See
of
report
second
also
periodic
42/Add. 3
A. P. Blaustein
and
Doc. CCPR/C/
pp. 4-5.
Of The World,
Constitutions
G. H. Flanz,
Of The Countries
292
(Dec., 1987).
SR
Similarly
pr. 39
see
vol. II
(on
326
(Vincent-Evans
A/39/40
Jamaica),
Doc.
pr.
on,
Gambia).
42

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

SR 440 pr. 23.


SR 440

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

in ch. 6, pr. 6.3 above


SR 445 pr. 32. As noted
HRC have made no formal
determination
on the question
in respect
the HRC's competence
of reservations.

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.

Human Rightssee articles

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

SR 469 pr. 9 (Tomuschat


on El Salvador).
SR 355 pr. 24 (Prado-Vallejo
on Uruguay).

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,

See Human Rights-Status,


pp. 58-85,
n. 42 above,
States
twelve
For an example
see the
covering
parties.
in
information
Doc. CCPR/C/
detailed
by Chile
provided
32/Add. 2 (1984).
that
The ICJ study,
suggests
n. 1 above,
force
five
first
during
the
Covenant
at
years
was in
fifteen
least
States
failed
to
any
or
parties
give
timely
including
Colombia,
notice
of States
of emergency
Peru and Uruguay,
p. 454.

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

SR 596 pr. 2. A number


of
applications
in
firearms
the
EUCM have
concerned
of
use
6 under
the
Ireland,
on article
see ch. 8 below
121

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

See pr. 7.37

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

See pr. 7.41 below.


to
For a comparable
approach
other
provisions
Doc. A/36/40
Sweden,
see Maroufidou
v.
(expulsion
law applied
in
p. 160,
good
and interpreted
faith
in
and
a reasonable
of
manner:
no violation
13),
article
prs. 10.1-10.2
Aumeeruddy-Cziffra
v.
;
Mauritius,
Doc. A/36/40
is
("the
legislation...
p. 134,
discriminatory
with
to
Mauritian
and
respect
women
be justified
by security
cannot
pr. 9.2
requirements",
(b)
2 (ii)
3; Hamel v.
Madagascar,
Doc. A/42/40
P. 130,
(H's
expulsion
13 because-the
violated
article
grounds
of
those
expulsion
were
not
national
of
compelling
security),
pr. 20.
138

"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

See pr. 7.3

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,

See pr. 7.16


See
72,

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.

See pr. 7.40


See prs.

prs.

for
to

See pr. 7.2

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

See ch. 2 above.

emergencies.

cooperation

with

good
most

stimulate

international

(1981),

bring

to

See ch. 4 above.


n. 1 above

can

assistance

See ch. 3 above.

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

See chs. 9-11

below.

SR 67 pr. 78, during


the GDR. Cf. The decision
n. 20 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.

SR 443 pr. 55.

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

See e. g. SR 54 pr. 90 (Graefrath


on Finland);
(Graefrath
92 pr. 52
(Hanga
SR 199 pr. 10
on FRG);
SR 257 pr. 38
(Hanga
Iraq);
SR 319 pr.
on Italy);
(Graefrath),
52
(Hanga
386
Japan);
SR
pr.
on
(Footnote
Continued)

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.

how the HRC would


to
of the right
in
Court
Supreme
Corporation
and
"The
to
right
ibid.,
p-371the

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

See e. g SR 206 pr.


(Bouziri
on France);

strictly

See n. 26 above on these


in
this
thesis.
dealt
with
comment
a general
on
completed
to
makes
no reference
comment
title
and reference.
Supreme
(1976).
31
Tobago).

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.

The G. C. was echoed


Case,
prs. 8.17-8.20

(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

SR 533 prs. 16 (Ermacora),


at SR 534 pr. 1-6.

18

(Tomuschat

on GDR);

28

See e. g. SR 128 pr. 69 (Vincent-Evans


on Chile);
(Ermacora
SR 421
SR 468
pr. 16
pr. 28
on Nicaragua);
(Prado-Vallejo
SR 421 pr. 16 (Ermacora
on El Salvador);
SR 475 pr. 35 (Aguilar
SR 364
on Nicaragua);
on Mali);
(Vincent-Evans
the
The massacres
on Iran).
at
pr. 73
by
Sabra and Chatila
a
camps in the Lebanon
raised
were
22
SR
443
(Vincent-Evans),
8
see
number of members
prs.
,
55
39 (Ermacora),
(Bouziri),
42 as corrected
(Errera),
446
(Tomuschat),
SR
State
pr. 19
representative).
Ibid.,
Generally
8;
see Rodley,
6
n. 1 above,
and
chs.
(Footnote

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

See pr. 8.5

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 200 pr. 19 (Opsahl


Cf. art. 4(4)
on Iraq).
inflicted
be
case
shall
capital
punishment
offences
or related
common crimes".

SR 364

pr. 39

(Tomuschat

(Sadi),

SR 365

the

on

statistics

(Vincent-Evans),

See SR 322 pr. 68


at SR 325 pr. 19.

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

See e. g. SR 283 pr. 11 (Tarnopolsky


735 pr. 4 (Mommersteg
on Zaire).
62
The principle
proportionality
of
that

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,

Cf. the reference


to the United
See Military
Nicaragua

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

See Doc. A/C. 3/39/SR.

(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

See e. g. G. A. Resn. 37/189A


(19/12/82).
Resn. 1982/7

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

a cut of the carotid


he had committed
that

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.

See pr. 8.15

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.

See pr. 8.2,


See pr. 8.6
G. C. 6/16,

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.

and the accompanying


is
out.
spelt
clearly

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.

pr. 3. The other


articles
of the
"arbitrary"
terms
or "arbitrarily"
9 (1)
17(l)
12(4).
and
,

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

See pr. 8.19

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

2 ECHR can provide


HRC
the
154
However,
there
material.

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.

See pr. 8.19

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).

See ch. 10,

and

violations
(e)
and

commission

4.27-4.33

See pr. 8.24

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

2 ECHR does not


contain
any equivalent
Ibid.,
of the Covenant.
Pannick,
p. 30,
judgements
Sunday
the
the
EUCT in
of
Continued)
(Footnote

CH. 8

Mbenge193

In
of

M claimed

politically

purely

567

he

that

had

motivated

been

and

the

victim

substantially

The HRC expressed


on these
charges.
no view
because
lack
of
of
sufficient
allegations
194
death
6(2)
information.
On its
a
approach
'o article
imposed
for
violate
reasons
would
political
penalty
the
that
if
6(2)
the
the
HRC were
view
of
article

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

See pr. 8.24

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.

See pr. 8.22.1

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.

See ch. 7 above.

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

SR 327 pr. 43 (Tarnololsky


see Apx. I below.
SR 475 pr.

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

See Doc. A/37/40

pr. 309.

See Doc. A/40/40

pr. 598.

See Doc. A/42/40

pr. 160.

See Doc. A/37/40

prs.

See Docs. A/34/40

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

See e. g. SR 440 pr. 57 (Tarnopolsky


SR 560 pr. 7 (Tomuschat
on Canada),
reply
at

;
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

See e. g-SR 69 pr. 32 (Tarnopolsky


on U. K. ); SR 98
(Tomuschat
28
pr. 64 (Tomuschat
413
SR
Yugoslavia);
pr.
on
1
T.,
on Austria).
C.
A.
U.
N.
See also
15
the
n.
of
article
above.
33
pr. 21.

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

See e. g SR 111 pr. 18 (Esperson


on Mauritius);
153 pr. 41 (Vincent-Evans
SR 213
SSR);
on Ukrainian
(Tarnopolsky
Senegal);
(Graefrath
SR 386
on
pr. 33
Mexico).
41

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

The main features


articles
under
of the HRC's views
in
7 and 10(1)
Their
usefulness
will
now be reviewed.
facilitating
to
HRC's approach
an understanding
of the
9.12

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

See pr. 9.4.1.


Simones
v. Uruguay
71

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.

See pr. 9.24

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

the ECHR have


under
n. 42 above.
at n. 124 and
A. 7994/77,14

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

See pr. 9.7

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

See Muteba v. Zaire,


Doc. A/39/40
p. 182. See also
Uruguay,
Doc. A/41/40
Gilboa
v.
Mock executions
p. 128.
features
treatments
in
Case,
the
Greek
among the
were
500,504.
21
p.
above,
n.
96
does
this
However,
be
to
the
seem
clear
from Estrella
implication
v. Uruguay,
see pr. 9.18 below.
Case,
the Quinteros
In the Greek
See also
pr. 9.23 below.
the Sub-Commission
Case,
of the EUCM defined
n. 21 above,
"the
infliction
torture
as,
of
mental
non-physical
by
by
creating
a state
of anguish
and stress
suffering
bodily
than
assault",
other
and gave
as one of
means
mock executions,
pp. 461-463.
their
examples,
97
98

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

mail

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

mail

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

See pr. 9.2

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

See pr. 9.7

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

by the HRC of the obligation


taken
view consistently
imposed
by the Covenant
The
and the O. P. to investigate.
finding
be
based
the
could
minority
on
notion
of
If
complicity.
so,
presumed
such
an
approach
was
the

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

read the HRC's view


"anguish
and stress"

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

See pr. 9.17

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

See pr. 9.18

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

See pr. 9.3

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

has now been


The Committee
the
HRC,
Ms.
Christine
of
one member
Bulletin
p. 31 (1987).
2 Interights

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

by him in any such


payment
without
it;
have sufficient
means to pay for

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

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behalf

or

such

the

him;

against
witnesses
(f)
To have the

be

626

examined,

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to

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lu

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procedure

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have the right
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5. Everyone
of a crime
convicted
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higher
by
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sentence
reviewed
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conviction
to law.
tribunal
according
been convicted
has by a final
decision
6. When a person
his
and
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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

has been argued


be
14
should

(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
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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,

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that

law

of

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its

although
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often
long
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reports

alone

14(4).

article

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with
9 has

rule

HRC stated

comment the
"aimed
are,
5
justice".
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the

of

under

of

article
hearing

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fair

627

comment

consideration
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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

The ICJ Study,


article
within
See e. g.

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,
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into
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and comments
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a schematic
It is instructive,
be given.
down
HRC's
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break
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paragraph

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provisions
of

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analysis.

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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

See e. g. SR 51 pr. 63 (Tomuschat


on Libya);
293 pr. 32 (Lallah
on Portugal).
12
116
SR
(Mora-Rojas
See
e. g.
pr. 24
SSR); SR 213 pr. 94 (Sadi
Byleorussian
on Senegal).
13
See
Doc.
A/41/40
e. g.
pr. 330
Czechoslovakia).

SR

on
(on

Ln

before

equality

those
14

to

access
profession".
that

Some members
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principle

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16

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of

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judiciary
In

practice.
the

specify
texts
and

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are

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legislature".

14

judiciary
17

from
The

guaranteed
should

legislative

and

the

of the
impartial
to

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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

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and

establishment
independent,

are

particular
and

appointment,

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constitutional

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it

equality

States

particular,

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HRC stated
information

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competent,
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are

view
"meant

the
vis-a-vis
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specific

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comment
detailed

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law,

and

citizen

though

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legal

to

citizen

to ensure
that
taken
equality
steps
including
to
access
courts,
equal
impartiality
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and competence,
the

meant

and

the

general
"more

useful,

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indicated
HRC have
before
the
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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

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procedure

perhaps

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of

obligations

separation

of

powers

discussion
specific
"criminal
the key terms
19
in a suit
at law".
in

bearing

the

mind

6 of the ECHR where parallel


under
article
have been developed
as "autonomous
concepts"

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

See e. g. SR 282 pr. 50


(Tomuschat
SR 366
pr. 13
on
freedom
that
crucial
situation,
judicial
became
system
entire
(Aguilar
on Peru).
SR 132 pr. 53

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
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of

who

practicing

or

on the

control

and

required

qualifications

legal

profession
independent,
or

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before

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of
legal

concern

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free

public

authorization
Were

how

it

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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).
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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

See Doc. A/40/40


Although
second
used

or

pr. 44.
2 (1982).

See pr. 10.12

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 51 pr. 63 (Tomuschat


SR
on Libya);
328 pr. 36 (Tomuschat
on Morocco).
32
has
been
in
This
the
concern
also
noted
in
2
of
article
ch. 6 above.
consideration
33
See e. g. SR 89 pr. 17 (Vincent-Evans
SR
on Iran);
SR 475 pr. 19 (Opsahl
199 pr. 25 (Bouziri
on Iraq);
on
Many of the communications
the
Optional
Guinea).
under
have
the
Protocol
concerned
operation
of
military
tribunals.
34

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.

SR 200 pr. 8 (.Graefrath

See e. g.

SR 283 pr. 22

See e. g SR 291 pr. 44

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",
independence
"Whether
such
can
Lillich,
and impartiality
to
a State
resorts
be assured
when
special
ad hoc
or
in
occurs
or
as frequently
after
revolutions
tribunals,
is
doubtful
for
emergencies,
a
proposition:
national
is
it
[of
disappointing
10
that
reason,
article
this
(Footnote
Continued)

CH 10

In

its

at

courts

special

of

operation

the

comment

general

637

concern

and

HRC at

the

of

tribunals

was

14

to

the

expressed

length,
"The

tribunals

and

the

notes

is

serious
and

Quite

Covenant

take

should

afford
14.
The

place
full

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such

in

afford

(Footnote

the
be

equitable,
of justice

for

courts

such
the

the
military

strict

trying
and

for

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enable
do not

categories
it
which

trying

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of
which

in

reports
institutions

courts
of

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article
lack
of
of some
include
In

civilians.

special

guarantees

civilians
genuinely

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of

the
of
lays

exceptional

conditions

regard
whose judicial

could

applied
which
While
of justice.

conditions

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parties

countries

under

the

such

that

military

This

in
stipulated
guarantees
has
Committee
a serious
noted

the

information
States

be

to

should

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of

reason
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to

courts

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nevertheless
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indicate
down clearly
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the

normal
standards
does
not
prohibit

with

Committee

administration
often

procedures

exceptional

civilians.
far
as

courts
article

The

try
as

all

that

of

countries,

which

of

scope

many

problems
independent

establishment

apply

specialized.
in

courts

concerned.

comply

the

or

existence,

special

present
impartial

article

within

ordinary

whether
or

of

provisions

the

some

do

not

proper

Continued)

In
directly
to
this
does
point.
speak
not
UDHR]
(1)
14
Political
Covenant
the
and
of
article
contrast,
(1)
the
8
American
Convention
the
add
of
article
be
'competent',
tribunal
the
that
a word
requirement
the
travaux
to
the
of
preparatoires
according
which,
be
'was tended
that
to ensure
all
persons
should
former,
jurisdiction
had
been
in
whose
previously
courts
tried
law,
by
and arbitrary
action
so avoided'.
established
Convention
American
8(1)
of the
goes one step
Article
be
that
trial
must
stating
a
further,
specifically
by
'previously
by
tribunal
a
established
conducted
1 above,
(footnotes
141
Lillich,
n.
omitted).
p.
law"
,
2
Ibid.,
283-4;
Sieghart,
ICJ
Study,
n.
pp.
See
also
459,
8.
recommendation
p.
above,

CH 10
justice

of

administration
of

requirement

638

in

accordance

14 which
are essential
If
of human rights.

article

the

protection
effective
in
decide
parties

circumstances
by article
contemplated

as
emergency
from normal
procedures
that

ensure

should
those

article
abuses

it

Although

is

to

failure

HRC general

problem

comment

represents

was

the

military

10.8

These

with

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)

of

in

such

bodies.

The

Judiciary.

to

quick

6.45
the
and
trial

46

be dealt

and will

have

express
between
appeared

See n. 40 above.

Mbenge

See

fair

of

it

comment

demarcation

power

pr. 4.

courts
draft

lack

related
have been

in
decision
10.40 below.

SR 537
Safeguards

special

in

And

n. 3 above,

G. C. 13/21,
See
above

Powers

by

the

at

HRC members
and

executive

44

are

matters

concern

serious

civilians
discussion

personnel

Of

Separation

the

of

example,
article
deals
with
expressly

expressed

also
for

guarantees
The

of

during

tribunals,
concern

trial

from

under

for

only

the

of

may
result
from which
Covenant

the

derogate,

to

the

of

of

exceed

14

article

provisions

the

Although

with

they

conditions

comment

derogate

to

possible

comply

of
violations
is not possible

Fair

14".

article

other

the
HRC's
to
experience
response
40 process
recognition
and is
a clear
by
such
practiced
special
commonly

useful

(b)

the

of

aspect

14,

article
do

the
44

respect

and

States

situations
not
by the
exigencies

required

strictly

situation,
actual
1 of
in paragraph
This

such

for

of
a
public
4 to derogate

by

required

the

with

v.

Zaire,

R. B. Ellert,

ch. 8,
N. A. T. O.

CH 10
47

indiscernible.
the

" Under

the

event

be

not

Act
to

in

courts
before

and

brought

Vincent-Evans

Sir

representatives,
"Could

hope

to

in

the

asked

that
why

ordinary

48

courts".

the

police

whether

as

the

apply

through

asked

functioned

police
could

offenders
Similarly

He

magistrates.

examining

Jurisdiction
laws

and

of

that,

jurisdiction

the

regulations

police

consideration

commented

Police

granted

were

police

Mr. Opsahl

Sandinista

the

during

example,

Nicaragua

of

report

For

639

Yugoslavian

trial
obtain
a fair
when the
integrated
in the political
Courts
were so closely
in cases
especially
of political
system,
offences?
liable
to be dismissed
Was a Judge
or disciplined
if
felt
he
the
had
agencies
other
of
system
one

adjudicated
interests,
By

for
on

contrast

indicated

detrimental
manner
in a political
example,

the

Judges

were

Furthermore,
a

as

47

See
SR 391 pr-10
on Guinea).

SR
e. g.
(Opsahl

SR

Nicaraguan
(1982-83).

on

GDR).

kind

of

SR 98

51.

of
and

discrimination
on

the

SR 67

pr.

46

the

could

on
pr.

be

privilege
grounds

Reply
SR 428
at
Docs. CCPR/C/14/Add.

also

the

judiciary.

and

199 pr. 40
(Prado-Vallejo
SR 475
on Denmark);

See

for

Judges

of

has

powers
and
irremovable

guarantees
independent

professions

422
pr. 33.
is
Report

pr.

separation

professional

themselves

of

other

vis-a-vis

49

of

the

of
an
the irremovability

establishment

48

that

establishment

seen

of

somewhat

its

49
case? ".

Mr. Graefrath
occasions
different
conception
of

number

of powers,
separation
"He did not think

to

38

of

Iraq);
(Aguilar

The
pr. 32.
3
2
and

(Prado-Vallejo

at

CH 10

and

status

social

of

establishment
Another
of

official

the

Advocate,

People's
investigation,
10.9

and

his

procedures

were

59

transfer,

the

terms

and

in

retirement60

conditions

rules?
Were

particular

which

the

the role
52
or
terms
of

have

questions

the
governed
56
dismissal,

or institution
authority
61
judiciary
How was the

been

Procurator,
in
powers

judiciary

and

to

adjudication.
of

the

of

has

raised
51

precise

and

nomination,
58

suspension,
What

respect

55

election,

Prosecutor,

catalogue

and

rules

dangerous
50
society".

a democratic

prosecution
in

developed
What

Public
53

lengthy

be

could

consistently

matter

640

forms.
54
appointment,
57
recall,
judges?
of

the

applied
organized

qualifications

its

all

tenure?

of

Who

composed?

legal

training

50

See e. g. SR 214 pr. 57 (on Senegal).


Similarly
(on
Spain),
SR 155
(on
Ukrainian
SR 142
pr. 107
pr. 54
from
Mr. Graefrath
the
GDR.
SSR).
was an expert

51

See e. g.

SR 131 pr. 19

(Tarnopolsky

(Hanga
SR 109 pr. 71
See e. g.
on USSR).
The
Ombudsman's
Cousin:
The
Procuracy
C. T. Reid,
[1986]
States,
P. L. pp. 311-326.
Socialist
See e. g.

SR 142 pr. 67

(Hanga

See e. g. SR 346 pr. 22 (Prado-Vallejo


SR 431 pr. 71 (Aguilar
on Peru).

56
57
58

59
60
61

See

e. g.

SR 132

pr.

58

(Dieye

See

e. g.

SR 421

pr.

58

(Errera

See

e. g.

SR 131

pr.

32

(Bouziri

See

e. g.

SR 142

pr.

12

(Tarnopolsky

on Rwanda);
Bulgaria).

on
on

on

Nicaragua).
Bulgaria).
on

Spain).

Ibid.
Ibid.
See e. g.

SR 11 pr. 22

(Esperson

See
In

on Spain).

54
55

at

on Bulgaria).

52

53

or

appropriate

and

or

been

on Mauritius).

CH 10
62

required?

by
played
disciplinary
for

capacity?

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lay

to
What

general

access

to

origin,
constraints?
line,
justice',
70

Mr. Bouziri

62

an
69

the

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or

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and
independence

need to follow
limitation

government
of

against

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warned

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the

financial
or
impartiality

a particular
such
report

dangers

SR 109 pr. 38. (Hanga

and

legislative
65
decisions?
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66
be
Was
ensured?
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example,
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conception

consideration

other

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educational
process
independence
Was the
or
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68

order.

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legal

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role

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assessors?
and was it
possible
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the
ensure
64
judiciary?
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aside

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offences
and

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of

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commit

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Judges

nature
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impartiality
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or

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was

regime

judge
63

What

641

party
'socialist

of
of
of

of

public
Nicaragua
abuse

of

on USSR).

63

See e. g. SR 99 pr. 8 (Opsahl


SR
on Yugoslavia);
365 pr. 14 (Tarnopolsky
on Iran).
64
See e. g. SR 98 pr. 35 (Mora-Rojas
on Yugoslavia);
SR 137 pr. 23 (Dieye
SR 132 pr. 24 (Hanga on Bulgaria);
on
SR 154 pr. 49 (Tarnopolsky
SSR).
Romania);
on Ukrainian
65

SR 32 pr. 37 (Tomuschat
See e. g.
supplied
Hungary
subsequently
additional
44, parts.
II and V, (1979).
Doc. CCPR/C/1/Add.
66

See e. g.

SR 89 pr. 40

67

on

(Esperson

See e. g. SR 69 pr. 24 and


SR 92 pr. 54 (Graefrath
U. K. );

68

See e. g.

69
SSR);
pr. 5.

See e. g.
SR 67 pr. 46

70

See e. g.

SR 156 pr.

15

on

SR 148 pr.
on FRG).

(Dieye

(Dieye

Iran).
58

on Ukrainian

SR 154 pr. 26
(Bouziri
(Prado-Vallejo
on GDR),
SR 354 pr. 34

on Hungary).
information,

on
reply

on Guyana).

(Graefrath

SSR).
Ukrainian
at SR 68

CH 10

for
its

In

which

courts
and

competent,
in

manner

terms

of

and

and

legislative

challenge
tribunal.
structural

the
73

occasionally
importance
the
individual
or

Similarly,

only

limitations

and

71

72
73

G. C. 13/21,

n. 3 above,

governing
functions

and

from

rarely

it

of
have

deficiencies,

SR

been

could

impartiality

SR 421 pr. 61,


reply
at
report
see n. 48 above.
Nicaraguan

of

the

72

branch".

independence

duration

judiciary

the

of

has
which
question
but
accorded
rarely
members
in
is
how,
an
practice,

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to
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appointed,

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of

of

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conditions

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and

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"States

that,

particular

judges

office;

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constitutional
the
establishment

they

that

independence

actual

executive

relevant
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provide

in

Judges

HRC stated

appointment,

transfer

promotion,
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which
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qualifications
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ensure

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the

specify

texts

impartial
the

Comment

General

legislative
the

their

should

parties

in
powers
vested
71
impartiality.

discretionary

extensive
implications

642

422

by
put
deserves

actually
a judge
or

questions
of
for
example,

pr. 37.

For

the

pr. 3.

See G. C. 13/21,
n. 3 above,
pr. 15. In the Piersack
"Whilst
impartiality
that,
normally
Case the EUCT stated
its
of prejudice
or bias,
or
denotes
existence
absence
6
the
under
notably
article
of
can,
otherwise
in various
be tested
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in this
context
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is
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endeavouring
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doubt
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In
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subjective
purely
even
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area,
oneself
importance",
be
EUCT,
a
certain
of
may
appearances
(1982),
30-31.
53
Campbell
See also
A,
prs.
vol.
Series
(1984);
Series
EUCT,
80
Sramek
K.,
A,
U.
vol.
Fell
V.
and
Series
A,
84
(1984);
EUCT,
Cubber
De
vol.
v.
Austria,
v.
Series
86
A,
(1984).
EUCT,
vol.
Belgium,

CH 10
lack

resources

of

communities
The

general
in the
the

of

practices

and

assurances
the

comments
of

report
"With

in

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New

disarray
were

to

the

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consideration

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that

El
senior

Such

corrupt.

Committee

to

concerning

the
He

state

of

Salvador
members

resources
were allocated
legal
in the
profession
76
much to be desired".

the

to

that

education

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of

general
judiciary
the

compelled

questions
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out

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present

Salvador,

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justice

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Salvador,

El

regard

system

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during

Mr. Opsahl

of

power,
in
small

justice

of

explanations

74

judicial

of

to
of members
States
rather

willingness

actual

shortage

and the
administration
75
been put.

to

access

and

643

especially
jurors
and
insufficient
and

consequently,

training
left

74

See e. g. SR 475 pr. 31 (Vincent-Evans


on Guinea).
from
Rwanda
before
When the
the
representative
appeared
his
that
limited
HRC he stated
country
was poor
and had
for
judges.
the
training
He suggested
that
of
resources
from
HRC would
the
in
training
Rwanda
grant
assist
a
its
judges
the
HRC's
training
and
would
concretize
Covenant,
the
to
SR 348
desire
On the
apply
pr. 32.
ECHR
the
to
under
structural
see
problems
approach
Germany,
EUCT,
Series
(1981);
A,
42
Buchholz
v.
vol.
Steiner
Switzerland,
EUCT,
Series
A,
Zimmerman
v.
and
(1984);
Guincho
Portugal,
66
EUCT,
A,
Series
v.
vol.
(1983);
Marijnissen
Netherlands,
(12th
81
EUCM,
v.
vol.
1984);
Dores
(6th
EUCM,
and Silviera
March,
v. Portugal,
1986).
July,

75

See e. g. SR 392 pr. 69 (Tomuschat


SR
on Iceland);
See also
430 pr. 47 (Tomuschat
the Australian
on Peru).
14
(3)(c)
in
below.
10.15
article
on
noted
pr.
position
76
SR 469
For
El
Salvador's
pr. 3.
report
see
(1983).
5
Add.
CCPR/C/14/
Doc.

CH 10

From

this

outside

comment
information

the

(d)

The

10.10

detailed

analyses

reflects

the

meaning

Similarly

fact

process
general

content

that

in
81

understood
in
limitations

and

or

77

See the
in
which
above,
the ECHR should
financial
impose

the

to

covenant.

those

their
82

the

40

article
but

have

one

of

requested
grounds

in

law

of
in

and

are

grounds

compatibility
The

of
is

grounds

United

with
Kingdom

decision
the
EUCT in
Airey,
n. 25
of
Ireland's
that
EUCT rejected
the
view
in a way that
be interpreted
would
not
parties.
on the contracting
obligations

78

Compte,
Le
Cf.
43
EUCT,
vol.
Belgium,
(1987);
127
A, vol.
Series
May 1988).

79

as

real

this
matter
80
This
perhaps

both

how

asked

40
to

little

given

State

78

article

definition

the

Covenant
77

limitations

Members

on
have

the

of

clear

limitations.

of

nature

precise

particular

They

on

comment.

meaning.

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specified

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defined

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been

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HRC's

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limitation

by

resources

there

and

the

of
79

provided

the

of

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and

guarantee
and its
the HRC have not,
under
the guarantee
and its

of

process,

detailed

HRC member
a
implementation
of

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'subjected

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note

hearing

Members

limitation.

to

possible

allocation

public

discussion

is
by

that

recognition
requires

it

644

Van
Leuven
De Meyere
v.
and
(1981);
EUCT,
H.
Belgium,
v.
(26
Ekbatani
EUCT,
Sweden,
v.

terms
the
to
with
respect
comment
similar
in a suit
and obligations
and "rights
"criminal
charge"
isolated
10.4.
For
been
has
an
pr.
law"
made
above,
at
limitation
"public
the
the
comment
order"
see
on
example
(on
109
59
USSR).
SR
pr.
Tomuschat
at
of
80

See n. 3 above.

81

64
(Tarnopolsky
SR
See
e. g.
pr. 44
116
(Prado-Vallejo
SR
34
pr.
Czechoslovakia);
SSR).
Byleorussian
82

See

e. g.

SR

64

pr.

60

(Tarnopolsky
Continued)
(Footnote

on
on

on

11;
ti

asked

was

representative
had
security

evolved

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point

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administrative
U. S. S. R.
'State

was

of

was
of

reasons

of

view
83

for

reasons
of
85
14".
article

representative
to

was

be

closed
in
security
national

and
the

of

cover
cases
of
84
Covenant.
The

the

with

public

particularly
jurisprudence

of
The

of

1920,

since

limitation

Czechoslovakia
State

"concept

the,

way

consistent

proceedings

645

whether
any

practice".
how
asked

Secrets'

representative
"Could

in

IU

asked,
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general

security

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as

for

public
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mentioned

to define
the
of Romania
was asked
representative
in
limitation
terms
to
of
cases
prejudicial
socialist
86
The Swedish
representative
morality.
was asked
about
87
the frequency
of the use of the in camera
procedure.
if
What restrictions,
any,
were there
on the
admission
88
hearings.
to
the
have
Members
mass media
court
of
The

(Footnote

Continued)

Czechoslovakia);
SR 258 pr. 61
83
Secrets
it
that
See the
84
pr. 27.
85
86

SR 98 pr. 68 (Tomuschat
(Bouziri
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).
Reply
at SR 112
is
Doc. CCPR/C/l/Add.
22 (1978).

(Opsahl).

Reply

in

SR 66 pr. 16.

(Bouziri).
In
the
pr. 41
reply
that
the
explained
expression
meant
representative
SR
141
10.
to
Similarly
public
policy",
pr.
contrary
155
(Tomuschat
SR
Justice'
'Socialist
see
pr. 15
SSR).
Ukrainian
SR

135

87

SR 189 pr. 4 (Opsahl).


it
difficult
that
was
replied
information
application
on the
189 pr. 7.
88

See
e. g.
Cf. A. 11552/85,11553/85
restrictions
reporting
1981.

The
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
of

an

observers
trials.

or

it

was

be

646

the

for

possible

members
89
trial,

during

present
possibility

non-governmental

foreign

of

organizations

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90

to

use

made

communications
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the

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extent

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Uruguay

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indicate
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of
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HRC's

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of

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regard

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of
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connection,

provided

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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
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including

89

all
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out

or
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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

See e. g. SR 132 pr. 64 (Dieye


on
for
the
of
publicity
question
on
also
Ukrainian
(Tarnopolsky
SSR);
50
on
pr.
(Tarnopolsky
on Poland).
91

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

11. The State


representative
"it
that
was untrue
prisoners
judgement
any written
and no
in support
of that
allegation",

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

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the

to

particular

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alleged
with

publicity

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even

not

take

place

the

form

of

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92
93

in

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persons

note

of
the

where

public

to

there
of
that

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

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alia,

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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

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use

of

and

the

burden

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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. Doc. A/39/40


reply
pr. 344 (on Gambia);
at pr. 353.
100
402
(Prado-Vallejo
SR
See
on
e. g
pr. 21
SR 407 pr. 52.
The operation
at
reply
of
Australia),
is
in
U.
K.,
the
controversial
exceptions
see
statutory
And Policy:
No Golden
1987 CLR
Proof
Threads,
P. Healy,
D.
J.
Birch.
Hunting
Elusive
The
Snark:
355-366;
The
pp.
[1988]
by
Exception,
CLR 221-232
Statutory
and reply
at pp. 233-235,
all
commenting
p. Mirfield
on R. v. Hunt
2 A. C. 352.
[1987]
101

See e. g.

A/39/40

pr. 151

(on

Guinea).

CH 10

inconsistencies
In

explanation102

14 the HRC noted


the
comment on article
general
from
information
States
14(2)
parties
on article
of
it,
"in
has even observed
that
some cases,
stated
is fundamental
the presumption
of innocence,
which

its

lack
and
that

of human
protection
terms
or entails
ambiguous
103
ineffective".
to

further

requested

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650

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Occasionally

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presumption

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than

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during

has

proof.
accused

Canada

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Mr. Opsahl
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of

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other

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legal
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considered

avoid

courts

of

than the
other
104
innocence".

to

the

of

an
which
innocence,

of
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pay

public
action
person

could
accept
person
a
being
to trial;
sent
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accused

to

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whether

proceedings;
from
refrain

should

whether
in order

102

of

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of

costs

guilty;

presumption

significance

standard
of

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burden
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concerning
be asked
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It
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person
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report
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Mr. Janca

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commented
"The

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(Opsahl
65
SR
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(Prado-Vallejo)
386
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and
pr.
Czechoslovakia);
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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.

See n. 100 above.

SR 205 pr. 30. A number


would
of these
points
be inspired
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under
seem to
SR 110 pr. 24 (Opsahl
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on Mauritius).

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to

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as

definition

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government

much

practice

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of
courts
to be demonstrated

solely
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to

scope

broader

105
106
107

of

truly

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of

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violate

article
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be

liable

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offences
such
and on the
in
dealing
It
them.
with
framed
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the

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political
information
was

necessary

criminalize

comment
general
interpretation

such

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measure
14,

suggest
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would
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on

were

association
might
innocence
by
required

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had

article

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merely
friends.
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with
the

to

to

subjected

such

offence
of innocence,

general

subversive

far

seemed

also
persons
be placed
in

with
106

Covenant...,,.

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they

so,

criminal
issues

needed

In

the

of

but

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presumption

14(2)

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vague

10.105

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of

violation
"The

on

information

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understand

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terms

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institutions

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paragraph

'J

could

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persons
investigation

preliminary
labour
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HRC as
article

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not

dissent".
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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
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arrest
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ground
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possibility
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repeat
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far

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Mr. Janca

"By

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reason

burden

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but

proof

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proof

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therefore

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proved
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implies
of
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in

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HRC commented,

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expressly

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principle.

public
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presumption

authorities
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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

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stated
3

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which
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have

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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

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the

HRC

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14(3),
115

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116
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inconsistencies,

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120
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Mr. Janca commented,
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pp. 186-188.
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327
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124
125

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127

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(1977)
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See e. g.
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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

See pr. 10.13

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 108 pr. 53 (Vincent-Evans


on USSR);
on GDR). See Fawcett
SR 67 pr. 40 (Esperson
pp. 190-191.
146
See e. g. SR 250 pr. 24 (Graefrath
on Denmark);
(Opsahl
19
475
on Guinea).
pr.
SR
147

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

See e. g. SR 99 pr. 12 (Lallah


on Yugoslavia).
is
important
to article
also
with
This
respect
question
14(3)(b),
see e. g. SR 132 pr. 9 (Janca
on Bulgaria).
151
Doc.

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

See e. g SR 327 pr. 49 (Tarnopolsky


on Morocco);
on Mexico),
at SR 404
reply
pr. 36 (Vincent-Evans

SR 387
pr. 62.
159A.

SR 357 pr. 17.

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.

See n. 162 above.

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

whether

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

SR 132 pr. 4 (Graefrath


See e. g.
on Bulgaria);
(Cooray
(Hanga
5
5
New
Zealand);
249
SR
482
on
pr.
pr.
SR
(Hanga
319
58
SR
Japan).
Venezuela);
pr.
on
on

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

SR 203 pr. 29.

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

SR 413 pr. 10. The Austrian


reservation
provided
be
14
that,
Article
would
applied
provided
that
in conflict
legal
5 is not
"paragraph
with
regulations
lighter
that
after
an
stipulate
acquittal
or
a
which
by
first
higher
instance,
a
court
of
passed
a
sentence
conviction
sentence
or a heavier
may pronounce
tribunal
they
the convicted
the
while
for
same offence,
exclude
have
heavier
to
right
such
or
conviction
person's
by
higher
Human
tribunal",
a
still
reviewed
sentence
154
Status,
n.
above,
pp. 29-31.
Rights
-

_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

scheme was an extra-statutory


did
in
Secretary
not
practice

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

See Doc. A/39/40

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

See Doc. A/4299

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,

Van Leuven and De


pp. 22-23
vol. 43,
at

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))

from two early


decisions251
by
taken
appeared
it
took the view that
the HRC that
violations
of article
deprive
(3)
14(1)
the
which
an accused
and
person
of
trial
of a fair
also
constitute
a violation
safeguards
10.32

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

summons had been


beginnings
the
of
the

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

See pr. 10.4.1

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

who was not


had been
there

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

case where the


14(3)(c)
alone

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

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HRC

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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

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that

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entitled
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it

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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

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considered

that
of the Government
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have
competent
remedy,

should
that

might
of

effectiveness
the
however,

Court

their

behalf
in

he

that

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held

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that

as
and

mishaps

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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

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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.

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