The team of human rights law experts led by the Centre for Fundamental Rights investigates trends and developments in UN human rights case law in 30 new cases.
The team of human rights law experts, assembled by Başak Çalı, Professor of International Law at the Hertie School and Co-Director of the Centre for Fundamental Rights, Dr Alexandre Skander Galand and Dr Aristi Volou, analysed additional thirty new salient human rights decisions delivered by the UN human rights treaty bodies (information about decisions analysed previously is available here). This collaborative research project is part of Oxford Reports on International Law (ORIL): International Human Rights Law module.
The analyses span across decisions delivered in individual and inter-state communications by the Human Rights Committee (HRC), Committee Against Torture (CAT), Committee for the Elimination of Discrimination Against Women(CEDAW), Committee for the Elimination of Racial Discrimination (CERD), Committee on the Rights of Persons with Disabilities (CRPD), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Rights of the Child (CRC), Committee on Enforced Disappearances (CED).
The decisions analysed cover a wide range of human rights issues with global significance:
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Fair trial rights – HRC, Nasheed v Maldives (2018) and HRC, Ambaryan v Kyrgyzstan, (2017)
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Enforced disappearance - HRC, Boudjema v Algeria (2017)
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Torture – HRC, X v Sri Lanka (2017)
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Right to life - HRC, Moreno de Castillo v Venezuela (2017) and HRC, Toussaint v. Canada (2018)
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Compulsory voting - HRC, Algers v Australia (2017)
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Compulsory DNA collection of a child - HRC, NK v Netherlands (2017)
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Discrimination on entitlement to receive child benefit based on author’s pending residence status - HRC, MSPB v Netherlands (2018)
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Discrimination of same sex couple - HRC, C v Australia (2017)
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Discrimination based on ‘national origin’ - CERD, Qatar v United Arab Emirates, (2019) and CERD, Qatar v Saudi Arabia (2019)
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Right to liberty and security – HRC, Miller and Carroll V New Zealand (2017)
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Non-refoulement - HRC, MM v Denmark (2019); HRC, Hashi v Denmark (2017); CAT, Harun v Switzerland (2018); CAT, MG v Switzerland (2018); CEDAW, NM v Denmark (2017) and CED, ELA v France (2020)
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Domestic violence - CEDAW, LR v Moldova (2017) and CEDAW, JI v Finland (2018)
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Non-medical circumcision on a minor - CRC, MH v Finland (2020)
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Right to social security and discrimination - CESCR, Calero v Ecuador (2018)
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Right to housing – CESCR, Ben Djazia and Bellili v Spain (2017) and CESCR, López Albán et al v Spain (2019)
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Deaf person’s right to serve as juror - CRPD, Beasley v Australia (2016) and CRPD, JH v Australia (2018)
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Right to vote without assistance - CRPD, Given v Australia (2018)
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Civil detention scheme - CRPD, Noble v Australia (2016) and CRPD, Doolan v Australia (2019)
There are many firsts amongst these decisions. ELA v France is the first CED decision concerning non-refoulement. Qatar v United Arab Emirates and Qatar v Saudi Arabia are the first two decisions ever delivered by a UNTB (CERD) in inter-state human rights complaints. Nasheed v Maldives is the first HRC decision which found a violation of the right to be elected based on a finding of a violation of the right to a fair trial.
The reporters note that, in several cases, the UNTBs offered novel clarifications on the scope of rights protected under UN human rights treaties. In Harun v Switzerland, the CAT found that the principle of non-refoulement is not only applicable to torture but also to all forms of ill-treatment. In Calero v Ecuador, the CESCR clarified what constitutes legitimate expectations on the part of individuals regarding the right to social security. The HRC, in Toussaint v Canada, affirmed that the right to life includes the right to health for undocumented migrants.
The reports also identified areas where the UNTBs failed to develop or clarify the law. In Hashi v Denmark, the HRC failed to clarify what weight should be given to diplomatic assurances in deportation cases. The CRPD, in Given v Australia, neglected to clarify whether the right to vote for persons with disabilities is an issue of accessibility or reasonable accommodation duties of states.
The reports highlight areas where the case law of the UNTBs can be characterised as well-established. In Harun v Switzerland, the CAT followed its previous case law which has found violations of the principle of non-refoulement due to the vulnerability of complainants as victims of torture. In Nasheed v Maldives, the HRC followed its long-standing principle that only concurrent - and not previous - proceedings of international dispute settlement constitute a bar to admissibility. The HRC, in MSPB v Netherlands, further confirmed its previous jurisprudence about the scope and autonomous nature of the right to non-discrimination under Article 26 ICCPR, and its previous case law which has found that distinctions in the area of social security may be more easily justified.
The reports also point out instances of departure from previous jurisprudence. In C v Australia, the HRC shifted its jurisprudence on marriage equality by recognising that same sex and opposite sex marriages can be equated. At times, dissenting opinions also called for changes to the case law. For example, in Ambaryan v Kyrgyzstan, the dissenting HRC members submitted that a written indictment was not necessary to enable a defendant to be informed of the charges against them, departing from the HRC’s General Comment No. 32.
The analyses further show that the UNTBs draw on the case law of other UNTBs and regional human rights courts. In ELA v France, the CED relied extensively on the non-refoulement jurisprudence of the CAT, both in regards to admissibility and merits. The HRC’s approach in MSPB v Netherlands, which uses the test of reasonableness, objectivity and legitimacy of aim to determine whether a treatment is discriminatory, converges with the approach of the European Court of Human Rights (‘ECtHR’). In Hashi v Denmark, the HRC converged with the ECtHR and determined that diplomatic assurances must be obtained for deportations to Italy.
Among these cases, there are also salient examples of divergence between the UNTBs and international courts. In Toussaint v Canada, the HRC went beyond the ECtHR in providing that undocumented migrants’ right to access healthcare does not require extreme health conditions. In Qatar v United Arab Emirates and Qatar v Saudi Arabia, the CERD affirmed that the scope of ‘national origin’ in Article 1 of its founding instrument is a ratione materiae question, which is separate from the question of jurisdiction, while the International Court of Justice found the contrary in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates). UNTBs can also diverge from each other in their reasoning. For instance, in Noble v Australia, the CRPD found that the civil detention scheme was a violation of the right to liberty, while the case law of the HRC suggests otherwise.
There are also cases where the UNTBs failed to engage with relevant external case law. In Nasheed v Maldives, the HRC failed to engage with the earlier decision of the UN Working Group on Arbitrary Detention which concerned the same complainant and facts. In Hashi v Denmark, the HRC failed to engage with an ECtHR decision, also cited by the respondent State party, which had found that a “Dublin” deportation to Italy would not be contrary to non-refoulement.
The reports also address States’ compliance with UNTB decisions. Following the HRC’s finding of a violation of privacy rights in NK v Netherlands, the Dutch government promised to amend the DNA Testing Act and the Dutch courts have started following the approach of the HRC, holding that the age of convicted minors must be taken into account by domestic courts when dealing with the collection of their DNA.
Finally, cases of outright resistance to the decisions of the UNTBs were also identified. Notably, Australia explicitly rejected the views of the CRPD in JH v Australia, Noble v Australia, Beasley v Australia, while Canada refused to implement the views of the HRC in Toussaint v Canada.
Follow this space, as we continue to feature significant developments in contemporary UNTB case law. Full reports for individual cases can be accessed via the ORIL database.