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INTERIM MEASURES IN THE UN HUMAN RIGHTS COMMITTEE

Published online by Cambridge University Press:  17 January 2008

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Abstract

International human rights bodies with responsibility for monitoring the implementation and enforcement of rights protected by human rights treaties are usually empowered to indicate interim, or provisional, measures of protection in cases of urgency in order to safeguard the rights and persons of victims of alleged violations of human rights.1 Whether State parties are obliged to comply with a request for interim measures of protection has been the subject of some debate. The purpose of this note is to examine the issue of the binding force of interim measures of protection in the United Nations human rights system in light of the views of the Human Rights Committee (hereafter the Committee) in Piandiong, Morailos and Bulan v The Philippines.2 Before doing so, however, we need to recall briefly the Committee's role in securing the rights of the individual.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 2 , April 2004 , pp. 445 - 454
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 This power may exist in the treaty itself or, more usually, in the rules of procedure. See, eg, Rule 108(1) of the revised Rules of Procedure of the UN Committee Against Torture which permits the Committee to ‘transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations’, UN Doc. CAT/C/3/Rev 4, 38. In Europe Rule 39(1) of the Rules of the European Court of Human Rights allows the Chamber or its President to ‘indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it’, available at <www.echr.coe.int/ENG/Edocs/RulesofCourt2002.htm>..>Google ScholarSee also, Merrills, jg and Robertson, AHHuman Rights in Europe (4th edn ManchesterMUP 2001) 317–18.Google ScholarUnder the American Convention on Human Rights, reproduced in (1970) 9 ILM 673, Art 63(2) authorizes the Inter-American Court of Human Rights, in ‘cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons’, to ‘adopt such provisional measures as it deems pertinent’. The Court may also ‘act at the request of the Commission’ with respect to a case not yet submitted to it. See also, Art 25 of the Court's revised Rules of Procedure, available at <wwwl.umn.edu/humanrts/oasinstr/iachrregulations.html>. In addition, Art 25(1) of the revised Rules of Procedure of the Inter-American Commission on Human Rights permits the Commission, to request provisional, or precautionary, measures in ‘serious and urgent cases, and whenever necessary...to prevent irreparable harm to persons’, available at <wwwl.umn.edu/humanrts/oasinstr/iachrregulations.html>..+In+addition,+Art+25(1)+of+the+revised+Rules+of+Procedure+of+the+Inter-American+Commission+on+Human+Rights+permits+the+Commission,+to+request+provisional,+or+precautionary,+measures+in+‘serious+and+urgent+cases,+and+whenever+necessary...to+prevent+irreparable+harm+to+persons’,+available+at+.>Google ScholarSee generally, Pasqualucci, JThe Practice and Procedure of the Inter-American Court of Human Rights (CambridgeCUP 2003), ch 6.CrossRefGoogle Scholarauthorized under Rule 111 to indicate interim measures to ‘avoid irreparable damage being caused to the victim’, or where ‘desirable in the interest of the parties or the proper conduct of the proceedings before it’, Commission's Rules of Procedure (revised), (1997) 18 Human Rights Law lournal 154, at 161–3. The African Court on Human and Peoples' Rights is empowered under the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court of Human and Peoples' Rights, adopted by the O AU Assembly of Heads of State and Government at its 34th ordinary session in Ouagadougou in 1998, reproduced in (2000) 12 African Journal of International and Comparative Law 187, to indicate provisional measures. Thus, Art 27(2) reads, ‘In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.’Google ScholarSee further, Naldi, GJ ‘Interim Measures of Protection in the African System for the Protection of Human and Peoples' Rights’ (2002) 2 African Human Rights Law Journal 1.Google Scholar

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3 999 UNTS 171; (1967) 6 ILM 383.Google Scholar

4 The procedure has been described as ‘quasi-judicial’, RKM Smith Textbook on International Human Rights (OxfordOUP 2003) 67.Google Scholar

5 As at 10 Oct 2003, 147 States were parties to the Covenant, of which 104 had ratified the Optional Protocol. Information on the status of these treaties may be found on the following UN web sites, <http://untreaty.un.org>, and <http://www.unhchr.ch>.,+and+.>Google Scholar

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8 The Committee has therefore adopted the position that, ‘Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views’, UN GAOR A/55/40, vol I, para 593. Furthermore, in 1990 the Committeeestablished a procedure to monitor the follow-up to its Views by creating the mandate of Special apporteur for the follow-up on Views, UN GAOR A/45/40, Annex XI.Google Scholar

9 Revised Rules of Procedure of the Committee, UN GAOR A/56/40, Vol I, B.Google Scholar

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11 Above, n 8, para 565.Google Scholar

12 See the statement by Mr Martin Scheinin, a member of the Human Rights Committee, UN Doc. CAT/C/SR.487, para 4Google Scholar

13 But see Weiss v Austria Communication No 1086/2002, UN Doc CCPR/C/77/Da/1086/2002 (15 May 2003) discussed below. The Inter-American Court of Human Rights has stated that ‘the nature of provisional measures is not only preventive in the sense that they preserve a juridical situation, but fundamentally protective, because they protect human rights’, Provisional Measures in the La Nation Newspaper case, Order of 7 Sept 2001, Annual Report of the Inter-American Court of Human Rights, 2001, vol II, Appendix XXXVI, para 4.Google Scholar

14 The Committee has found that disagreeable consequences do not constitute ‘irreparable damage’ under rule 86, Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/D/558/1993 (1994), para 7.Google Scholar

15 Above, n 8, ibid

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18 All sentences of death are automatically reviewed by the Supreme Court. The power of the President of the Republic to, inter alia, pardon or grant clemency is based on s 19, Art VII of the Constitution. See the second report of the Philippines submitted to the HRC, UN Doc CCPR/C/PHL/2002/2, para 511.Google Scholar

19 At para 5.1. Emphasis added.Google Scholar

20 At para 5.2. Emphasis added.Google Scholar

21 At para 5.3.Google Scholar

22 At para 5.4.Google Scholar

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24 The Committee has considered that the object and purpose of the Optional Protocol is to ‘allow the rights obligatory for a State under the Covenant to be tested before the Committee’, General Comment No 24, UN Doc HRI/GEN/1/Rev 5, para 13.Google Scholar

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28 Glen Ashby v Trinidad and Tobago, Communication No 580/1994, UN GAOR A/57/40, vol II, annex IX, sect. A (21 Mar 2002).Google Scholar

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30 UN Doc CCPR/C/64/D/839-–841/1998.Google Scholar

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32 Glen Ashby v Trinidad and Tobago, para 10.9.Google Scholar

33 Communication No 964/2001. The Committee adopted a similar stance in relation to Uzbekistan, which had executed six individuals whose communications were pending before the Committee, UN GAOR A/58/40, vol I, para 141.Google Scholar

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35 Communication No 1086/2002, UN Doc CCPR/C/77/D/1086/2002 (15 May 2003).Google Scholar

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37 Para 7.1.Google Scholar

38 Ibid.

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52 Provisional measures in the Colotenango case, Order of 5 Sept 2001, Annual Report of the Inter-American Court of Human Rights, 2001, vol II, Appendix XXXIII, para 3.Google Scholar

53 American Convention on Human Rights, Art 63(2), and the Court's Rules of Procedure, Art 25(2).Google Scholar

54 Judgment of 6 Feb 2003, available at <http://www.echr.coe.int/ENG/Judgments.htm>..>Google Scholar

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56 At para 110. Emphasis added.Google Scholar

57 At para 111.Google Scholar

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59 Series A, No 201 (1991).Google Scholar

60 UN GAOR A/58/44, Chapter V, B, para 162. It should be observed that the original rule of procedure was applied in this case; Art 108(9) stated, inter alia, that the Committee ‘may request the State party to take steps to avoid a possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation’, UN Doc HRI/GEN/3, 171. On the Committee Against Torture's current authority to request interim measures see above n 1.Google Scholar

61 Communication No 99/1997, UN GAOR A/55/44, annex VIII, sect A (16 May 2000).Google Scholar

62 Para 8.2.Google Scholar

63 Para 16.1.Google Scholar

64 Individual opinion of Committee member Guibril Camara, para 1.Google Scholar

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68 Mamatkulov and Abdurasulovic v Turkey, para 105.Google Scholar

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