–Başak Çalı, Professor of International Law, Hertie School of Governance, Editor in Chief, Oxford Reports on UN Human Rights Treaty Body Views
A recent post on I-CONnect by Viljam Engström discussed the Spanish Supreme Court judgment on the domestic legal effects of the views of the CEDAW Committee in the case of González v Spain. Whilst Engström reported the Supreme Court’s interpretation of the CEDAW View as legally binding in the Spanish legal order as an interesting development, he proceeded to make three further points about the CEDAW Committee’s views in this case and the core functions of the UN Human Rights Treaty Bodies more generally.
First, he observed that the views of UN Treaty Bodies delivered in individual cases are not formally legally binding. Second, Engström proposed that the views delivered by the UN Treaty Bodies in individual complaints are not the primary function of these bodies, due to their broader compliance monitoring functions. Third, Engström argued that attaching binding status to the views of the UN Treaty Bodies may, in the long run, undermine the compliance monitoring functions of these bodies, which depend on the goodwill of the state parties to engage with their policy recommendations. In other words, the hardening of obligations may lead to a chilling effect on state co-operation with the UN Treaty Bodies.
In this post, my aim is to offer an alternative take on domestic hardening of views of UN Treaty Bodies.
With regard to the three observations made by Engström, I shall offer three alternative perspectives: 1) the fact that views lack an explicit formally binding status in international law does not exhaust questions concerning their legal effects, be they international or domestic; 2) the characterisation of the functions of UN Treaty Bodies primarily as soft domestic human rights reform nudgers is misconceived, in the light of the recent, and significant, increase in states opting-in to individual complaints mechanisms and 3) domestic judicial interpretations of views as judicially binding in their own legal orders do not pose any risk as to the effectiveness of the other functions that UN Treaty Bodies perform.
First, it is no secret that the formal status of the views (as well as concluding observations and general comments) of the UN Treaty Bodies lack an expressive and formal binding character under international law. That is, the failure to comply with any word uttered by a UN Treaty Body does not directly engage the international legal responsibility of a state before the treaty bodies themselves or any other international court or tribunal. It is, however, also well-known that any international court interpreting UN Human Rights Treaties, be it the ICJ, or ECtHR do refer to the case law as well as the general comments of these bodies. The utterances of UN treaty bodies, therefore, do undergo a process of hardening in international law by way of their upholding by institutions that emit legally binding decisions.
The legal status of views in domestic legal orders is not a question that can be answered solely by referring to their lack of express binding nature under international law. Domestic law may make views enforceable as a matter of domestic law, through legislation as in the case of Colombia or judicial interpretation, the latter seems to be the case with the Spanish Supreme Court (my reading of the case was also limited to the blog posts about the judgment). When express domestic law provisions making views enforceable under domestic law are absent, the binding nature of the views under domestic law ultimately depends on whether domestic courts understand the ratification of the Optional Protocols (or the individual petition clauses) of UN Human Rights Treaty Bodies as creating a domestic legal duty to give effect to the views. After all, domestic judges have a legitimate question to ask: why would a state voluntarily opt-in to an individual complaint mechanism, give individuals a right to international petition following exhaustion of domestic judicial remedies, and defend itself through legal arguments before these bodies if it does not intend to give effect to the views under domestic law?
Second, Engström holds that the work of the UN Treaty Bodies is essentially that of soft dialogue with the state parties intended to induce domestic human rights reform. The quasi-court functions of these bodies are not their primary function. This statement is misconceived for two reasons.
First, the quasi-court function of UN Treaty Bodies is an opt-in mechanism. It only applies to states that voluntarily and explicitly allow for the right to individual petition. States are free to opt-in to the right to individual petition mechanisms at any time they wish to do so whilst they are a state party to the treaty and they can also opt-out of it, and even opt back in with reservations. As such, it can be reasonably assumed that those states that are ‘in’, agree for the Treaty Bodies to assume a separate and additional quasi court function alongside their general treaty compliance monitoring functions.
Second, the UN Treaty Bodies not only fulfil their quasi court function under the procedural terms of an Optional Protocol (in most cases), but also follow legal procedure in discharging this function. This includes delivering individual and general remedies. In the case of CEDAW, the power of the Committee to deliver remedies in individual cases is explicitly provided for in Article 7 of the Optional Protocol. It is, therefore, no surprise that UN Treaty Bodies qua quasi human rights courts, not as human rights reform ‘nudgers’, have attracted the judicial attention of the Spanish Supreme Court. Opting in to a quasi judicial petition mechanism with explicit powers to deliver remedies bring the work of the UN Treaty Bodies closer to the domain of courts and judicial interpretation.
Third, Engström holds that the UN treaty body system as a whole cannot carry the weight of views being treated as binding legal judgments. This is because the very value of the system and the associated state buy-in to it is premised on its dialogical soft architecture. This seems to be a partial description, at least, of the contemporary state of affairs. In the past decade alone states have concluded optional access to individual petition with respect to the ICESCR, CEDAW, CRPD, CRC, and CED bringing the number of UN treaties allowing the right to petition to eight out of ten UN Treaty Bodies. There also is a significant upward global trend in the ratification of these opt-in mechanisms. This shows that states themselves have shown a preference not only to view UN Treaty Bodies as soft human rights reform partners, but also as international quasi-courts.
In the light of these the Spanish Supreme Court decision may be read as a coming of age story for the views of UN Treaty Bodies and the recent evolution of the UN human rights treaty architecture to include quasi court functions rather than merely an interesting judgment.
Suggested Citation: Başak Çalı, UN Treaty Body Views and their Domestic Legal Effects (in Spain): An Alternative Take, Int’l J. Const. L. Blog, Sept. 14, 2018, at: http://www.iconnectblog.com/2018/09/un-treaty-body-views-and-their-domestic-legal-effects-in-spain-an-alternative-take
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