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Use of Indicators by the Human Rights Committee

Use of Indicators by the Human Rights Committee. Martin Scheinin Åbo Akademi University Institute for Human Rights. Background Paper No. 3. Is the CESCR a special case? Article 2.1:

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Use of Indicators by the Human Rights Committee

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  1. Use of Indicators by the Human Rights Committee Martin Scheinin Åbo Akademi University Institute for Human Rights

  2. Background Paper No. 3 • Is the CESCR a special case? Article 2.1: Each State Party to the present Covenant undertakes to take steps, … to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant … • Compare to CCPR 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, …

  3. The Method Applied • The UNCOM database at SIM http://sim.law.uu.nl/SIM/CaseLaw/uncom.nsf • indicator(s) 228 • benchmark(s) 13 • statistics >250 • disaggregated >250 • ... and a bit of intuition

  4. What is an Indicator? • A quantitative or qualitative parameter that is empirical (data-based) in nature but is being used as a step in the legal/normative/ interpretive assessment of treaty compliance • Rather the first than the last step; precedes the contextual assessment of all relevant data and arguments • An indicator gives a direction for the process of compliance assessment, or, at best, creates a presumption of compliance/non-compliance

  5. Right to Life (Article 6) • ”2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant...” • Abdool Saleem Yasseen and Noel Thomas v. Guyana (Communication No. 676/1996): ”The Committee recalls that it is axiomatic that legal assistance be available in capital cases.” -> violation of article 14 -> violation of article 6

  6. Humane Treatment of Detainees (Article 10.1) • All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. • Albert Womah Mukong v. Cameroon (458/1991), para. 9.3: ”As to the conditions of detention in general, the Committee observes that certain minimum standards regarding the conditions of detention must be observed regardless of a State party's level of developm-ent. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners ... minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength.” • Rule 19: Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.

  7. Delays before or pending trial (Articles 9 and 14) • 14.3: In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees... • (c) To be tried without undue delay; • 9.3: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. • The Committee uses comparative tables of its earlier case law, although emphasizing the contextual nature of its assessment

  8. Electoral Rights (Article 25) • Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; • Istvan Mátyus v. Slovakia (923/2000): 9.2 As regards the question whether article 25 of the Covenant was violated, the Committee notes that the Constitutional Court of the State party held that by drawing election districts for the same municipal council with substantial differ-ences between the number of inhabitants per elected representative, despite the election law which required those voting districts to be prop-ortional to the number of inhabitants, the equality of election rights required by the State party's constitution was violated. In the light of this pronouncement, based on a constitutional clause similar to the requir-ement of equality in article 25 of the Covenant, and in the absence of any reference by the State party to factors that might explain the differ-ences in the number of inhabitants or registered voters per elected repr-esentative in different parts of Rožòava, the Committee is of the opinion that the State party violated the author's rights under article 25

  9. Minority and Indigenous Peoples’ Rights (Article 27) • ”... shall not be denied the right, in community with the other members of their group, to enjoy their own culture...” • Ilmari Länsman et al. v. Finland (Communication No. 511/1992) “… the Committee notes that economic activities must, in order to comply with article 27, be carried out in a way that the authors continue to benefit from reindeer husbandry”

  10. Nondiscrimination (art 26)Indirect Discrimination • Cecilia Derksen, on her own behalf and on behalf of her daughter Kaya Marcelle Bakker v. the Netherlands (Communication No. 976/2001): “The Committee recalls that article 26 prohibits both direct and indirect discrim-ination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons.”

  11. National Human RightsInstitutions/Paris Principles • CCPR art. 2 (2) “… each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant” • Concl.Obs. on Mali (2003): The State party should take appropriate measures to allow the National Advisory Comm-ission on Human Rights to function, in accordance with the Principles relating to the status of national institutions for the promotion and protection of human rights ("Paris Principles"), as set forth in General Assembly resolution 48/134 • Project by the International Council on Human Rights Policy: indicators and benchmarks approach to assess the performance of NHRIs.

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