Treaty bodies and the interpretation of human rights.

• Author: Mechlem, Kerstin

ABSTRACT

The eight United Nations human rights treaty bodies play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. Unfortunately, their output often suffers from methodological weaknesses and lack of coherence and analytical rigor, which compromise its legitimacy.

This Article suggests that these deficits could in large part be addressed if the committees applied the customary legal rules of interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), which requires attention to the text, context, and object and purpose of a treaty, in a much more systematic manner than currently practiced.

The argument will be made in three steps. After an Introduction (Part I), Part H provides the necessary background. It sets out the Vienna Convention rules of interpretation and provides an overview of the treaty bodies. It shows that despite their various functions, the treaty bodies are legal bodies that are well equipped to apply legal rules of interpretation. Part III suggests that the application of legal rules of interpretation is an obligation as much as a necessity. It makes two main arguments: The first is that the treaty bodies are bound to apply Articles 31 and 32 because of a formal reason--namely, because they interpret human rights treaties largely in lieu of states. As states would be bound by the Vienna Convention rules, the treaty bodies have to adhere to them as well. The second argument is a substantive one. As the treaty bodies' output is nonbinding, its de facto legal force and impact depends on how convincingly and persuasively it is argued, which in turn is significantly shaped by the consistent use of an accepted and appropriate method. This sub-part will discuss the legal dimension of each of the treaty bodies' main activities and the role legal interpretation plays for each. It argues that when treaty bodies interpret rights and obligations under a treaty, the use of a legal method of interpretation is necessary to make their work comprehensible, rational, predictable, legitimate, reproducible, and faithful to the principles of legal certainty and the rule of law. Part IV serves to illustrate the relevance of the abstract argument made before by discussing in detail three examples from the work of the Committee on Economic, Social and Cultural Rights (CESCR): the CESCR's views on (1) the obligations of international organizations under the International Convenant on Economic, Social and Cultural Rights (ICESCR); (2) direct extraterritorial obligations; and (3) core obligations. In each example, one of the three requirements of Article 31 of the Vienna Convention--text, context, or object and purpose--has been neglected. Part IV demonstrates how such neglect has led to unconvincing results that have undermined the value, credibility, and usefulness of the work of the treaty bodies, thereby causing a possible weakening rather than strengthening of the human rights system. The Article closes with conclusions and recommendations developed from the analysis (Part V).

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Rules of Interpretation Under the Vienna Convention B. Treaty Bodies as Legal Bodies 1. Overview of the Treaty Bodies 2. The Representation of Legal Expertise on the Committees III. THE RELEVANCE OF LEGAL RULES OF INTERPRETATION FOR THE WORK OF THE TREATY BODIES A. An Obligation: Treaty Bodies Interpreting in lieu of States Parties B. A Necessity: The Need to Ensure Impact by Using Legal Rules of Interpretation 1. Concluding Observations 2. Individual Communications 3. General Comments IV. NEGLECT OF THE VIENNA RULES OF INTERPRETATION AND ITS CONSEQUENCES: THREE EXAMPLES FROM THE WORK OF THE CESCR A. The Text of the ICESCR and the "Obligations" of International Organizations B. The Context of the ICESCR and States' Extraterritorial Obligations C. The Object and Purpose of the ICESCR and the Expansion of the Concept of "Core Obligations". V. CONCLUSIONS AND RECOMMENDATIONS I. INTRODUCTION

The eight human rights treaty bodies or committees (1) fulfill a number of vital functions in the human rights system. (2) They supervise states parties' compliance with their obligations under a treaty, monitor progress, and provide public scrutiny on realization efforts. They assist states in assessing achievements and in identifying implementation gaps. They try to induce changes to the law, policy, and practice in member states and provide guidance on the measures needed to realize rights at the national level. They stimulate and inform national human rights dialogue. Some treaty bodies afford individual redress. The committees' rather technical and legal work complements the more politically driven activities of other human rights actors, notably the Human Rights Council. And finally, the committees interpret the treaties they supervise in order to discharge their mandate of monitoring states parties' implementation. (3) They thereby play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. This role extends beyond the parties to a treaty, promoting the general understanding of a particular right at the national and international level by states, NGOs, academia, and others.

Given the importance of the treaty bodies' interpretative output for the clarification and development of human rights law, including customary human rights law, it seems self-evident that the bodies' interpretations should be based on the coherent use of an appropriate and accepted method to make them rational and legitimate. The use of such a method distinguishes legitimate determinations of the meaning of a legal rule from arbitrary and random findings. Unfortunately, method does not always play a strong role in the treaty bodies, as recent General Comments by the Committee on Economic, Social and Cultural Rights (CESCR) show. (4) As part of an ongoing debate about the treaty bodies, commentators also regularly criticize a lack of substantial arguments, coherence, and analytical rigor: the absence of a visible concept of interpretations; and the existence of contradictory remarks by different committee members, which are caused by the absence of a principled approach. (5)

These deficits are typically attributed to the facts that the treaty bodies fulfill more varied functions than courts and are composed of multidisciplinary teams of experts instead of only legal practitioners. However, such deficits not only lower the prestige of the committees and make it easier for states and other actors to ignore their output, but also decrease their capacity to effectively carry out their functions. As the number of treaty bodies increases (6) and treaty bodies assume new functions--such as the CESCR, which is likely to be able to pronounce on violations in individual cases in the future (7)--addressing these challenges becomes more and more pressing.

This Article suggests that concerns could largely be addressed if the committees applied the customary legal rules of interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), which requires attention to the text, context, and object and purpose of a treaty, in a much more systematic and coherent manner than currently practiced. (8) The Article argues that the application of Articles 31 and 32 of the Vienna Convention by the treaty bodies is both an obligation under international law and a substantive necessity to ensure that the treaty bodies have forceful impact and live up to their specific responsibilities. The Article focuses on the treaty bodies' role in interpreting the rights and obligations of their respective treaties and distinguishes this role from their wider mandate in policy matters. Adhering to Articles 31 and 32 Vienna Convention does not exclude economic, social, developmental, and other considerations.

The argument will be made in three steps. Part II provides the necessary background, setting out the Vienna Convention rules of interpretation and providing an overview of the treaty bodies. It shows that despite their various functions, the treaty bodies are legal bodies well equipped to apply legal rules of interpretation. Part III suggests that the application of legal rules of interpretation is an obligation as much as a necessity. This Part offers two main arguments. First, the treaty bodies are bound to apply Articles 31 and 32 because of a formal reason, namely because they interpret human rights treaties largely in lieu of states--the states would be bound by the Vienna rules, so the treaty bodies have to adhere to them as well. The second argument is a substantive one. Because the treaty bodies' output is nonbinding, its de facto legal force and impact depends on how convincingly and persuasively it is argued, which in turn is largely shaped by the consistent use of an accepted and appropriate method. This sub-part discusses the legal dimension of each of the treaty bodies' main activities and the role of legal interpretation for each. It mainly argues that when treaty bodies interpret rights and obligations under a treaty, use of a legal method of interpretation is necessary to make their work comprehensible, rational, predictable, legitimate, and reproducible, and to do justice to the principles of legal certainty and of the rule of law. Part IV serves to illustrate the relevance of the abstract argument by discussing in detail three examples from the work of the CESCR: the CESCR's views on (1) the obligations of international organizations under the International Covenant on Economic, Social and Cultural Rights (ICESCR); (2) direct extraterritorial obligations; and (3) core obligations. In each example one of the three requirements of Article 31 of...