Vol. 15 No.4 (April 2005), pp.332-335

DEFINING CIVIL AND POLICIAL RIGHTS: THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE, by Alex Conte, Scott Davidson and Richard Burchill.  Burlington, VT and Aldershot, Haunts: Ashgate Publishing Limited, 2004.  280pp.  Hardcover. $114.95 / £60.00.  ISBN: 0-7546-2279-7.

Reviewed by Susan C. Breau, Dorset Fellow in Public International Law, British Institute of International and Comparative Law, London, United Kingdom. Email: s.c.breau@biicl.org.

In his preface, Alex Conte describes the objective of this book: to provide an examination and commentary on the jurisprudence of the United Nations Human Rights Committee.  The book more than fulfils this aim.  Unlike a usual edited collection of essays, this publication is a coherent examination of the developing case law of the Human Rights Committee organised under main topics in civil and political rights.  It is an invaluable tool for teaching and practicing in the field.  The book was well utilised recently when the British Institute of International and Comparative Law undertook judicial training in Commonwealth Africa and used a chapter to discuss the extensive obligations encompassed in a fair trial when there is a possibility that the death penalty might be imposed.  Although many of the countries in Africa are parties to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), the judiciary suffers from lack of training in human rights issues.  This book would be an invaluable tool for domestic Judges universally, who are becoming aware of their international human rights obligations.

The United Nations Human Rights Committee is a quasi-judicial body established to examine complaints against individual nations for violations of their obligations under the ICCPR.  Only those counties that have ratified the Optional Protocol to this Convention agree to submit themselves to individual complaints.  The authors/editors of this book, Alex Conte, Scott Davidson and Richard Burchill, have included the ratification status as Appendix 3, and as of the time of this review 104 States are parties to the Optional Protocol.  The Committee issues “views,” which are really recommendations but are nevertheless influential. A compilation of these views is critical given the large number of participants in the Optional Protocol.  Many of these ratifications have taken place since the fall of the Berlin Wall, and the number of views is growing at a rapid rate.  The number of decisions is still limited by the short working session of the Human Rights Committee in Geneva.  This is in marked contrast to the sophisticated system in operation at the European Court of Human Rights.

Collecting the jurisprudence from the human rights committee is a very difficult task.  Unlike the European Court of Human Rights the cases are not easily accessible and collection involves navigating through reports of meetings rather than organised case reports.  Yet in their effort, these authors have [*333] achieved the same comprehensive analysis accomplished by Jacobs and White (2002) and Harris, O’Boyle and Warbrick (2001) in their seminal texts on the European Convention on Human Rights and the practice of the European Court of Human Rights. To have a source of recent decisions on the ICCPR is equally essential, and I hope that these gentlemen could be persuaded to update this collection on a regular basis.

The first introductory chapter and the second chapter on procedure are invaluable for the practitioner in the area.  These chapters outline the jurisdictional issues, the functions of the Human Rights Committee, and the process of an individual complaint from exhaustion of domestic remedies to the follow-up procedure after the Committee’s views have been issued.  For the academic, the chapters discuss difficulties with the jurisprudence including the two main problems.  The first is that most of the earlier communications came from a limited number of states, particularly Uruguay and Zaire.  The second problem is that the earlier communications concerned gross and widespread human rights abuses, and therefore jurisprudence was limited to areas such as torture, liberty and security of the person, and due process rights. This study reveals that this is no longer the case, with a discussion of a great range of jurisprudence on almost every area of human rights.

After these foundational chapters, the book is divided into the major categories of human rights protected under the ICCPR.  The chapters not only review the current case law but rely on the general comments released by the Human Rights Committee for the content of the rights.  This is an essential part of the practice of international protection of human rights to review and understand the general comments, as they clarify the content and scope of individual rights. Another essential element of this study is that the authors review the general comments and jurisprudence in terms of elaboration of the content of these respective rights.

The first area expertly discussed by Richard Burchill is self-determination.  This is the right which is contained in the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Charter of the United Nations.  However, Burchill points out the lack of clarity in the content of self-determination as a justiciable human right.  A reason for this is that the Committee has refused to consider rights of a group as a whole and has insisted on individual applications. Therefore, Article 1 on self-determination, is not amenable to the Optional Protocol procedure. In its jurisprudence the Committee has refused to proceed on Article 1 claims unless they are combined with Article 27, rights of minorities.  This jurisprudence is expertly analysed. One minor criticism is that this chapter should have been followed directly by Burchill’s chapter on Minority Rights, as the jurisprudence is closely related.

The next chapter on Democratic and Civil Rights by Alex Conte is quite extensive, encompassing several rights under the convention—freedom of movement, freedom of thought, conscience and religion, freedom of assembly and association, recognition as a person before the law, and democracy. [*334]  The chapter follows the structure of considering the elements of each right and then any relevant jurisprudence. There is rather scant jurisprudence in these areas, but cases that do apply are thoroughly and critically discussed.

Conte also discusses security of the person.  The chapter includes the right to life, the prohibition against torture, degrading treatment and medical experimentation, provisions on deprivation of liberty, and prohibitions of slavery and servitude.  The case law is obviously more extensively developed in these areas due to the sad reality of disappearances and torture in many nations.

Conte’s next contribution is on judicial process.   This chapter examines the conduct of civil and criminal proceedings in the context of the obligation to provide fair trial guarantees. Conte rightly considers Article 14 of the Covenant to be complex; however, he manages to divide the provision into its component parts and to provide an excellent and detailed exposition of the diverse elements of fair trial guarantees.

Finally, Conte discusses privacy, honour and reputation.  The controversial issue in this chapter is recognition of same-sex relationships within the context of privacy.  The extensive discussion of TOONEN v. AUSTRALIA is essential, as it is one of the leading cases in the recognition of the rights of same-sex couples to privacy and that their sexual activity should not be criminalised.

The next chapter on equality by Scott Davidson is essential reading, as equality, like self-determination, is a pervasive theme of human rights.  A very useful part of this chapter is consideration of what constitutes discrimination, as it is not defined in the ICCPR and is a very difficult concept to pin down.  This chapter is also critical of the way the Human Rights Committee distinguishes between direct and indirect discrimination.  All three commentators utilise their academic expertise to comment on relevant jurisprudence to great effect.

Richard Burchill discusses minority rights.  Article 27 has often been used by various indigenous groups in Finland, Canada, Sweden, and New Zealand, and Burchill analyses the extensive jurisprudence in this area.  Again his succinct analysis reveals the difficulties in protecting minorities and the jurisprudential flaws.

The final chapter is on rights of the family and children.  Given the private nature of the family, this set of questions has often been neglected in the study of human rights.  However, as Burchill reveals, an important body of law is developing that pierces that veil of privacy, especially in the consideration of the right to marry and create a family.  Once again, discussion of the JOSLIN v. NEW ZEALAND case is very important, as the Human Rights Committee has not followed developments elsewhere and does not seem prepared to recognise gay marriages.

This book may not be as detailed and comprehensive as Joseph, Schultz and Casten (2000), but it is more easily accessible to both students and lecturers.  It will also be of great benefit to domestic judges (such as those in [*335] Commonwealth Africa) who may find their decisions under scrutiny by the Human Rights Committee.

REFERENCES:

Harris, David .J., Michael O’Boyle, and Colin Warbrick. 2001. LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS. London: Buterworths.

Joseph, Sarah, Jenny Schultz, and Melissa Castan. 2000. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: Cases, materials and Commentary.(2nd edition) 2004. New York: Oxford University Press.

Ovey, Clare, and Robin C. A. White. 2002. JACOBS AND WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS (3rd edition). Oxford: Oxford University Press.

CASE REFERENCES:

JOSLIN v. NEW ZEALAND, COMMUNICATION 902/1999, U.N. Doc CCPR/C/75/D/902/1999 (2002).

TOONEN v. AUSTRALIA, COMMUNICATION 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

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© Copyright 2005 by the author, Susan C. Breau.