Sarthak Sahoo
The twentieth century saw and indulged licentiously in the proliferation of international fora responsible for ‘enforcing’ international law. Numerically significant, but comparatively understudied amongst these are the treaty monitoring bodies (‘TMBs’). These bodies are responsible for a variety of monitoring the implementation of the treaty in state parties. For example, Article 28 of the International Covenant on Civil and Political Rights (‘ICCPR’) created the Human Rights Committee (‘HRComm’).
Many other treaties from the 1960s to the 2000s created similar TMBs. These include committees for the International Covenant on Economic, Social, and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Childs Right Convention (CRC), Convention on the Elimination of Racial Discrimination (CERD), and the Convention Against Torture (CAT), amongst others.
In its 2010 Ahmadou Sadio Diallo judgment, the ICJ stated that it was not bound by, but ascribed ‘great weight’ to the pronouncements of the HRComm when interpreting the ICCPR (see paragraph 66). This was echoed in future judgments and opinions from the Court as well. Crucially, this finding was understood as to apply to TMBs generally, when dealing with their respective treaties. The celebration of this move was such that, when in 2024, the ICJ’s understood the CERD differently to that of its TMBs, its decision was thoroughly criticised on that ground.
This post argues that the ICJ should not afford little, if any, persuasiveness to TMBs. To that end, it shall first briefly explain the working mechanism of one exemplar TMB: the HRComm. Subsequently, it shall document existing practice of the ICJ on TMBs. Lastly, it shall argue why TMB pronouncements should be not persuasively regarded.
To note, this critique of TMBs is self-containing, and can apply to courts other than the ICJ. Similarly, this piece deals with the HRComm as the paradigmatic TMB for analytical purposes. This does not deny the minor differences that may be found between TMBs inter se, which might distinguish their analysis. I acknowledge this limitation, and invite others to confirm or negate this critique in context of other courts and TMBs.
The Work of the HRComm
The HRComm substantially serves four functions. Firstly, and most typically, the HRComm engages in its reporting and ‘concluding observations’ functions. See Article 40 of the ICCPR. It releases concluding observations by state, outlining potential gaps in legal regime-building, as well as deficits in implementation in particular states. Secondly, pursuant to the First Optional Protocol to the ICCPR, individuals of ratifying state-parties can submit individual ‘communications’ to the HRComm on ICCPR violations. It can provide its ‘views’ to the state-party in question about the merits of the alleged violation.
Thirdly, and more prominently, the HRComm routinely releases ‘general comments’, which attempt to exposit the contents of ICCPR guarantees. For example, General Comment 34 aims to provide an account of article 19 (freedom of expression) and what it entails in different circumstances. Lastly, there exists an inter-State complaints procedure under the ICCPR (see Article 41). However, this has remained dormant thus far.
TMBs in the ICJ Jurisprudence
To date, the ICJ has made notable use of TMB pronouncements in select cases. The first came in 2004, when the Court delivered its Wall advisory opinion. There, when considering if Israel’s obligations under the ICCPR and ICSER applied extraterritorially to the Palestinian territories, the Court primarily relied upon the decisions of the HRComm. See eg Paragraph 109 of the Opinion. It used travaux as a secondary aid to confirm the HRComm’s interpretation. However, the Court did not abstractly speak to the value of TMB pronouncements.
The more clear pronouncement on TMB’s role came in the 2010 Ahmadou Sadio Diallo decision. Mr Diallo, a Guinean national, was arrested and then expelled by the Democratic Republic of Congo. The former instituted proceedings to seek a declaration and compensation for the violation of his rights.
The merits stage involved interpreting Article 13 of the ICCPR, which dealt with the expulsion of foreign nationals. Thus, when examining the pronouncements of the HRComm for this purpose, the Court stated that:
[Paragraph 66] Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.
In Obligation to Prosecute, the Court used the TMB jurisprudence to confirm its interpretation that it had proffered under articles 31 and 32 of the VCLT. There, both seemed to operate in alignment. See Paragraph 101 of the Judgment.
However, subsequently in the 2021 Qatar v UAE decision, the Court had to consider if the term ‘national origin’ in that treaty included current nationality in the CERD. After conducting an interpretation of the terms via the customary rules codified in articles 31 and 32 of the VCLT, the Court answered in the negative. See Paragraph 83 of the Judgment. However, the CERD Committee had answered the question positively. See Paragraph 100. Thus, the ICJ diplomatically negated the relevance of the Committee, citing instead the portion of its decision where it reached on an autonomous analysis of the relevant provisions. See Paragraph 101.
Finally, in the 2024 Ukraine v Russia decision and Israeli Polices and Practices advisory opinions, the Court has made liberal use of the CERD and HRComm pronouncements. However, these have largely related to questions of fact, often supplementing legal analyses.
In surveying the cases above, TMBs must be located within article 38(1) of the Statute. There are two possible candidates for its legal relevance. The first is that its pronouncements are ‘judicial decisions’ under sub-paragraph (d) and are thus a subsidiary source of law. The second is that the pronouncements are not a distinct source of law per se, but rather an evidentiary aid when interpreting a treaty under sub-para (a).
Interestingly, none of the cases attempt to locate TMB jurisprudence between these camps. Even Diallo reasons that consistency is crucial for legal certainty and security, thus rationalising its decision as an antifragmentation measure. Further, three inferential acts by the ICJ lead us to conflicting decisions.
Firstly, the ICJ uses the terms ‘interpretative case law’ and ‘jurisprudence’ for HRComm pronouncements. These are terms usually used for judicial bodies. Further, in Diallo, the Court dealt with the HRComm in the same vein as regional human rights courts. This would lend some credibility to the idea that its pronouncements are judicial decisions under Article 38(1)(d).
Secondly, TMB pronouncements have been considered and rejected in Qatar. It is not standard practice for the Court to explicitly hold against existing sources as bad law, without distinguishing them either on law or facts. Thus, it is more likely that the Court merely considered it an evidentiary aid to constructing the treaty in question.
Lastly, except for Wall, where the Court had not developed its theory on TMBs, the Court has not replaced or substituted its analysis of the law under articles 31 and 32 of the VCLT. This is possible under either paradigm.
Having laid this landscape out, I will now explain how TMB pronouncements are inappropriate to consider for the Court under both paradigms separately. As mentioned before, the HRComm may serve as an exemplar in this respect.
The Problems with Importing TMBs ‘Law’
There are principally three families of reasons why TMB pronouncements should not be afforded great weight by the ICJ.
Firstly, the ICJ’s use of TMB pronouncements is incompatible per se with the customary and codified rules on treaty interpretation. Their validity is instead contingent on the extent to which they are based on these customary rules. If serving as evidentiary aids to treaty construction, they are per se violative of the tools sanctions for this purpose in articles 31 and 32. For eg, the object and purpose, the travaux etc. Instead, if serving as subsidiary sources, TMBs must demonstrate close fidelity to employing those tools. This is patently incompatible with the nature of TMB pronouncements, which are primarily based on public policy analyses instead.
This difference is also best articulated by the juxtaposition of the inherent positioning of rights under the ICCPR as compared to the ICESCR, which aims at the progressive realisation of the rights entrusted under the convention. See Taylor at 6.
This argument is further strengthened by the fact that the ICCPR is supposed to represent the ‘minimum standard’ of human rights for state parties. See eg Article 5(2). States may provide more expansive rights in their municipal regimes, but not less.
Here, acceptance of the ICCPR is premised on a particular understanding of these states. The HRComm’s persistent practice to confer positive policy obligations onto the way the state in question operates may have the effect of reducing respect and fidelity to the original goals of the ICCPR. Instead, these run the risk of raising state scepticism towards international courts, otherwise committed to preserving the will of states as the source of law binding on them.
Second, as a proximate fact, the analysis of lex lata is fundamentally a descriptive and legal inquiry. It does not entail a normative investigation into future desiderata. This is important, as the composition of the HRComm is not, at its core, made for jurists. This is not an empirical claim. This simply refers to the fact that, as a matter of form, it is not supposed to be composed of lawyers. See Article 28 of the ICCPR. They must primarily be persons of ‘high moral character’ with ‘recognised competence in […] human rights’. Only some ‘consideration’ needs to be had to the ‘usefulness’ of persons with legal experience. Thus, legal experience— and not expertise is the only additional consideration. This, in turn, is instrumental to the ICCPR, and not an end in itself.
This is also important given that, despite rule 103 of its rules of procedure that mandates that its decisions be made by a vote, the HRComm prefers to make decisions by consensus regardless. See CCPR/C/3/Rev.12, fn 1. As Christian Tomuschat, writing in 2019, states, ‘[t]o date, as far as can be seen, no formal vote has taken place…’. This seriously hampers the conventional norms of judicial or quasi-judicial institutions that decisions, after deliberations, be given collegial finality by individual sanction. The absence of such a system reduces incentives for individual members to be legalistic and not normative about the enforcement of the ICCPR.
Third, even as a purely practical matter, the HRComm is beset with a variety of operational problems, which severely inhibit the functions it claims to perform. As Dame Higgins has stated, the poor institutional capacity of the committee in respect of sovereign states has led to constant political filibustering by government officials. It meets only around three times a year, and its members have little incentive to dedicate larger amounts of time to it, seeing that they’re not full-time members, drawing an emolument of 1 USD.
While this argument receives little intuitive respect from legal formalists, it is necessary to note that the ICJ itself grounds its support for institutional weight on practical grounds (‘legal security’ and ‘certainty’). Thus, if the ICJ’s rationalisation of TMB decisions is on practical grounds, it should be equally capable of disregarding its pronouncements on practical ones.
Conclusion
Throughout this piece, I have specifically concluded that the ICJ should place low weight on the pronouncements of the HRComm. This is in service of the wider thesis that, more generally, TMBs pronouncements should be afforded low weight in the ICJ and other courts.
This is based on, first, the idea that the ICCPR is interpreted in a progressive fashion by the HRComm, as distinct from the interpretation of treaties per se. Second, the HRComm itself is formally unlike judicial or quasi-judicial organs, both in composition and procedure. Third, as realist accounts demonstrate, the HRComm is severely handicapped as compared to its workload. These arguments, put together, in my view, should give sufficient reason for courts to employ scepticism in their consideration of their pronouncements.
Instead, it should stick closely to its autonomous treaty interpretation under articles 31 and 32 of the VCLT, either via custom or codification, and let TMBs pursue their human rights objectives as normative policy bodies instead.
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