Recent Developments in UN Human Rights Case Law

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, Alexandre Skander Galand and Aristi Volou, postdoctoral researchers at the Centre for Fundamental Rights, recently carried out analysis in ten salient human rights cases delivered by the UN human rights treaty bodies. This collaborative research project is part of Oxford Reports on International Law (ORIL): International Human Rights Law module.

The analyses span decisions delivered in individual and inter-state communications of the

Human Rights Committee, Committee Against Torture, Committee for the Elimination of Discrimination Against Women, Committee for the Elimination of Racial Discrimination, Committee on the Rights of Persons with Disabilities, Committee on Economic, Social and Cultural Rights, Committee on the Rights of the Child, Committee on Enforced Disappearances

The decisions analysed cover a wide range of human rights issues with global significance:

• Discrimination and violence against persons with albinism - CRPD, X v Tanzania (2017) - Report authored by Betül Durmuş;
• Rights of persons with disabilities to serve as jurors - Lockrey v Australia (2016) - Report authored by Annalisa Ciampi;
• Rights of persons with disabilities to have access to justice - Makarov v Lithuania (2017) - Report authored Pok Yin Stephenson Chow;
• Discrimination and sexual violence against women - HRC, Cacho Ribeiro v Mexico (2018) – Report authored by Tania Bañuelos Mejia;
• Racial discrimination - CERD, Belemvire v Moldova (2017) – Report authored by Irina Crivet;
• Female genital mutilation and non-refoulement- CRC, IAM v Denmark (2018) – Report authored by Martin Faix;
• Enforced disappearances - HRC, Sharma and Others v Nepal (2018) – Report authored by Katayoun Hosseinejad;
• Kefalah and family reunification - CRC, YB and NS v Belgium (2018) – Report authored by Betül Durmuş
• Right to life - HRC, Khadzhiyev v Turkmenistan (2018) – Report authored by Katayoun Hosseinejad
• Fair trial rights - HRC, Tyvanchuk and Others v Belarus (2018), Saidov v Tajikistan (2018) – Reports authored by Diletta Marchesi  

There are many firsts amongst these cases. IAM v Denmark is the CRC’s first decision on the merits. Lockrey v Australia is the first CRPD’s case on the right of persons with disabilities to serve as jurors. Belemvire v Moldova and X v Tanzania are the first cases of the CERD and CRPD, respectively, against these States. X v Tanzania, moreover, is the first CRPD case concerning systemic violence against persons with disabilities.

The reporters note that in several of these cases, the UNTBs clarified the scope of rights protected under human rights treaties. The Human Rights Committee clarified in Tyvanchuk v Belarus the scope of the right to a fair trial under the ICCPR, with regard to trials of civilians in military courts. Similarly, in Saidov v Tajikistan, it was recognised that neither the fact that the defendant is a government official nor the fact that an underage individual is involved in the proceedings is, in itself, a sufficient reason for holding a secret trial. The CRPD, in SC v Brazil and X v Tanzania, affirmed that illness and albinism are disabilities protected by the Convention on the Rights of Persons with Disabilities. The CRPD also offered important clarifications in Lockrey v Australia and Makarov v Lithuania on the scope of state obligations to enable persons with disabilities to take part in judicial proceedings, as juries and claimants, respectively.

The reports also highlight areas where the case law of UNTBs can be characterised as well-established. In Sharma and Others v Nepal , the HRC confirmed its previous case law establishing that enforced disappearance violates the right to life even if the victim reappears alive. Moreover, the reporters have noted that the HRC in Tyvanchuk v Belarus confirmed its previous case law and General Comments, when it held that military trials of civilians should be exceptional. The HRC also confirmed its previous case law in Saidov v Taijikistan, finding that, in the absence of justification, secret trials violate the right to a fair trial.

The analyses further show that UNTBs draw on case law of other UNTBs and regional human rights courts. The CRC in IAM v Denmark followed the CAT and the HRC when finding that female genital mutilation is a ground for asylum. Likewise, the CRPD in X v Tanzania followed the approach of the CAT when finding that acts of private individuals do not quality as ‘torture’. Certain findings also converged with the jurisprudence of the regional human rights. In Cacho Ribeiro v Mexico, the HRC converged with the findings of the CEDAW and the Inter-American Court of Human Rights as regards the level of sexual violence against women in Mexico and access to domestic remedies. Building on this, the HRC found that complainants are dispensed from the obligation to exhaust domestic remedies in Mexico due to long proceedings.

Instances of divergences with existing human rights corpus juris are also notable. In IAM v Denmark, the CRC held that when evaluating risk for a child to be subject to an irreversible harmful practice, such as female genital mutilation, in the country to which the person was being returned, a precaution approach had to be adopted, while the ECtHR adopts a risk approach in similar cases. In Tyvanchuk v Belarus, the HRC held that, in certain circumstances, there is an obligation on domestic courts to waive court fees, an obligation which is absent from ECtHR case law. Importantly, the HRC in this case also departed from General Comment No 32, which establishes the right to access to first instance proceedings only. The HRC also diverged from the ECtHR when it held in Khadzhiyev v Turkmenistan that the complainant did not have to take specific steps to show that his brother’s death caused him anguish and distress, which qualifies as inhuman treatment.

Finally, one case of backlash against the UNTBs case law was identified. In the context of the follow up procedure of the implementation of Lockrey v Australia, the concerned State rejected the whole reasoning of the CRPD arguing that it had not discriminated against the complainant, a person with disabilities, and that real time steno-captioning was not required by the duty of reasonable accommodation.

Follow this space, as we continue to feature significant developments on UNTB case law. Full reports in individual cases can be accessed via the ORIL database.