1. 5. The Contribution of the Human Rights Committee to the Development of International Law “International Law” Reciprocal contractual binary relationships of duty/obligation between “primary subjects of international law” = States Consent as the ultimate limit for any obligation ”Liberal analogy”: what is not prohibited, is permitted under state sovereignty (Lotus case) “Transnational Law” Recognition of the role of other actors: IGOs, IFIs, NGOs, MNCs and individuals Emergence of a constitution-type normative order which is above states, even in the absence of consent ”Rule of law analogy”: states must act within the law

2. Legal Nature of the Findings by the HRC Types of findings: general comments; concluding observations; final views and requests of interim measures of protection under the Optional Protocol Only the views address “violations” The Committee as the body established by the States parties for the purpose of interpreting the ICCPR Institutionalized practices of interpretation in relation to treaty obligations of States parties International law authority + moral authority Are the views “recommendations”? The findings are not formulated as recommendations although they lack the formally binding force of an international judgment Under arts. 26-27 of the Vienna Convention a state can not invoke the priority of its domestic law or its own interpretation of the treaty to justify non-implementationVienna Convention CCPR art. 2, para. 3: right to an effective remedyCCPR

3. Pronouncements on the remedy; follow-up procedures It is a legal obligation to provide an effective remedy but the Committee also gives advice what that could mean Laptsevich v. Belarus (780/1997)Laptsevich v. Belarus Towards the determination of the amount of compensation The reporting procedure as follow-up to the complaints procedure. E.g. A v. Australia (560/1993) Special Rapporteur on follow-up under the OP Consultations with States parties (Potentially) missions Follow-up report to the Committee and selection of examples to the Annual Report Possibility of involving the “political arm” How to measure the success rate?

4. Emerging International Constitutional Order Regional developments: the ECHR and EC Law vis-a-vis domestic constitutions ECHR: Open Door Counselling v. Ireland, Ruiz-Mateos v. Spain, Matthews v. UK ECJ: Tanja Kreil (C 285/98) Universal level: the sui generis nature of human rights law as an objective normative order “From Consent to Constitution”

5. HRC and Reservations The Vienna Convention RegimeVienna Convention See, also, article 20 (3) Consequences of impermissible reservations? Art. 57 of the European Convention of HREuropean Convention of HR Does not address the consequences of impermissible reservations Practice of the European Court of Human Rights: Belilos, Loizidou: bound without the benefit of… BelilosLoizidou HRC General Comment No. 24 (1994)General Comment No. 24 Competence of the HRC to determine + severability of impermissible reservations as the general rule Kennedy v. Trinidad and Tobago (845/1999)Kennedy v. Trinidad and Tobago see, also, the dissenting opinion and HopuHopu

6. HRC and Continuity of Obligations State Succession: Former Soviet Union and Former Yugoslavia Kazakhstan the last closed case Hong Kong and MacauHongKong Potentials of Reporting by Non-States Kosovo and a report by the UN itselfKosovoUN itself Issue of Withdrawal: the Case of North Korea and General Comment No. 26North Korea General Comment No. 26 compare to Vienna Convention RegimeVienna Convention Submission and consideration of the report 2001

7. HRC and the extraterritorial effect of human rights treaties Article 2 (1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant… Lopez Burgos v. Uruguay (1981)Lopez Burgos v. Uruguay Abduction of citizens on foreign soil by State agents Now challenged by the USA

8. HRC and the extraterritorial effect of human rights treaties HRC: Concluding Observations on Israel (1998 and 2003) the Covenant must be held applicable to the occupied territories and those areas of Southern Lebanon and West Bekaa where Israel exercises effective control (CCPR/C/79/Add.93) the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by [Israel’s] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of public international law (CCPR/CO/78/ISR) HRC: Ibrahima Gueye et al. v. France (1989) The authors were non-citizens and non-resident, subject to French jurisdiction only in that they rely on French legislation in relation to their pension rights. HRC: Concluding Observations on Iran (1993) Fatwa on Salman Rushdie

9. General Comment No. 31 (2004) 10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace- keeping or peace-enforcement operation.article 2, paragraph 1