W.A. Schabas, Nowak’s CCPR Commentary: U.N. Covenant on Civil and Political Rights, 3rd rev. edn.

W.A. Schabas, Nowak’s CCPR Commentary: U.N. Covenant on Civil and Political Rights, 3rd rev. edn.

N.P. Engel Publisher, Kehl 2019, lxxvi + 1171 pp. ISBN 78-3-88357-159-1

Alfred de Zayas*

Every human rights lawyer, as well as every judge and every non-governmental organization, need this Commentary. Already the publication of the first English-language CCPR Commentary by Professor Manfred Nowak in 1993 (the original German version had been published in 1989), at the time of the World Conference on Human Rights in Vienna, and Nowak’s second revised edition in 2005, were major events in the development and understanding of human rights jurisprudence, in particular the work of the Human Rights Committee (HRC) under the International Covenant on Civil and Political Rights (ICCPR). They contained: general comments, concluding observations on the examination of reports submitted under Article 40 ICCPR, case law under the first Optional Protocol (OP), and the activities of Committee Rapporteurs concerning new communications (registration), the follow-up to the Committee’s ‘Views’ and the follow-up to the concluding observations.

            This distinguished third revised edition of the CCPR Commentary was entrusted to Professor William A. Schabas of Middlesex University in London, formerly Director of the Irish Centre for Human Rights of the National University of Ireland in Galway, Ireland. This monumental piece of scholarly work is user-friendly, lucid, well organized, and supported by thousands of precise footnotes and cross-references. Because of its universality and comprehensiveness, it is tempting to compare it with the classic Oppenheim-Lauterpacht treatises on International Law. It is, in short, an indispensable tool for both researchers and practitioners.

            Professor Schabas was probably the best choice to undertake this massive work, bearing in mind his excellent Commentary to the European Convention on Human Rights (Oxford 2015), his book The Universal Declaration of Human Rights: the travaux préparatoires (Cambridge 2013), and his eminent publications on international law, international criminal law, the struggle to abolish the death penalty, the right to peace, reservations to human rights treaties, and his activities as an United Nations expert for the Human Rights Council.

            Schabas frequently relies on the pioneering work of Professor Marc Bossuyt, Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights (Dordrecht, Nijhoff 1987), on UN Document A/2929 (‘Annotations on the text of the draft International Covenants on Human Rights’), on the publications of members of the Human Rights Committee including Felix Ermacora (to whom the book is dedicated), Nisuke Ando, Torkel Opsahl, Christian Tomuschat, as well as books and articles by UN experts like Bertrand Ramcharan and the staff involved in servicing the Human Rights Committee. This reviewer feels flattered by Professor Schabas’ frequent references to the book by Justice Jakob Möller and myself: United Nations Human Rights Committee Case-Law (published by N.P. Engel 2009).

            Before reading the following snapshots of the Committee’s work as outlined and explained in the Commentary, it is useful to remind the reader that the ICCPR and its Optional Protocol (on communications/petitions) were both adopted by the General Assembly on 16 December 1966 and entered into force ten years later on 23 March 1976. The Second Optional Protocol on the abolition of capital punishment entered into force on 11 July 1991. As of August 2020 there were 173 States parties to the ICCPR, 116 States parties to the Optional Protocol and 88 States parties to the Second Optional Protocol. Schabas notes in his Preface to the third edition:

There have been no amendments to the Covenant or to the two Protocols. There have been no new protocols and none are seriously contemplated. However, the working methods of the Human Rights Committee have become more sophisticated. The case law has evolved, enriched by developments in regional human rights bodies. Moreover, the Covenant has been interpreted and applied by the International Court of Justice. (p. XI)

In the extremely informative introduction (pp. LIX-LXXVI) Schabas summarizes the history of the ‘international bill of rights’, discusses reservations and declarations of interpretations, and highlights the important fact that in contrast to Article 12 of the Optional Protocol, the Covenants do not contain denunciation clauses.

There is no indication in the travaux préparatoires that the drafters intended to permit denunciation. On the contrary, because the General Assembly adopted the CERD in 1965 and the Optional Protocol to the Covenant in 1966 with denunciation clauses and the two Covenants without denunciation clauses and without discussion, one may conclude that at least with respect to the Covenant’s substantive obligations, the possibility of denunciation was not intended. (p. LXXII).[1]

Schabas returns to the issue of the denunciation of the Optional Protocol on pp. 1066-68, and reports that hitherto three States parties have denounced the OP: Jamaica, Trinidad and Tobago and Guyana, all three in connection with the overload of OP communications concerning capital punishment.

            The structure of the third edition follows that of the earlier editions, examining the jurisprudence on an article-by-article basis, first of the Covenant provisions, then of the two Optional Protocols, while making reference to the pertinent rules of procedure, including on issues such as a quorum (p. 878), the recusal of a member (p. 843) or the removal of a member (p. 856). The text of each article is reproduced in full and then developments under each paragraph are elucidated. Substantively, it is fascinating to see how the Committee’s jurisprudence has evolved over more than 40 years, in part because of the frequent change in its membership and cross-fertilization with other tribunals. From a rather conservative beginning, the Committee membership has sought to expand the human rights concepts contained in the Covenant by giving them a generous interpretation and application in Optional Protocol cases, general comments and concluding observations. Initially focused exclusively on the ICCPR, the Committee gradually commenced to make reference to decisions and judgments of the International Court of Justice (ICJ), the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR). Similarly, these bodies and an increasing number of national courts have started to refer to the ICCPR and the jurisprudence of the HRC (pp. XLVI-LVIII, 93, 140, 240, 741, etc.).

            The snapshots below are meant to illustrate some issues that the reviewer considers important because of the contributions made by the HRC to international human rights jurisprudence, as reflected in Schabas’ Commentary.

Right of self-determination (pp. 8-30)

Article 1 of the ICCPR and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) lay down the right of self-determination. It should be noted that the drafters deliberately chose the terminology ‘right of’ rather than ‘right to’ self-determination. According to the text of the article, self-determination cannot be limited to decolonisation. The first paragraph of the article reads ‘All peoples have the right of self-determination’. Schabas reminds us that the classical means to ascertain the desire of a population is ‘the holding of a referendum under conditions ensuring a free decision’ (p. 25). Nowak’s second edition was adopted before the 2010 Advisory Opinionof the International Court of Justice[2] on the unilateral declaration of independence by Kosovo. WhereasSchabas suggests (p. 25) that there is a right to ‘remedial secession’ outside the colonial or foreign occupation context, this reviewer suggests that States parties to the ICCPR and ICESCR are bound by the text of Article 1, which is unambiguous in not restricting its application, and that the Advisory Opinion does resolve the tension between the principle of territorial integrity and the right of self-determination in favour of the latter. Paragraph 80 of the Advisory Opinion is dispositive: ‘the scope of the principle of territorial integrity is confined to the sphere of relations between States.’ In other words, the principle of territorial integrity invoked by Serbia cannot deny the people of Kosovo their right of self-determination. Moreover, Article 1(3) ICCPR imposes an obligation on States parties to proactively ‘promote’ the realization of the right of self-determination. This is of enormous importance for peoples aspiring to self-determination, including the Catalans, the Scots and the Québécois.[3]

            This reviewer believes that the Commentary could have expanded on the notion proposed by several Committee members that Article 1 is indeed justiciable under the Optional Protocol, since self-determination is not only a collective right, but has an individual rights dimension. Initially the Committee had considered that Parts I and II of the Covenant (Articles 1-5) were not justiciable under the OP, but this position has already been modified with regard to Article 2 ICCPR, which grants the right to a remedy. In Lubicon Lake Band v. Canada,[4] the Committee had declared the case admissible under both Articles 1 and 27 ICCPR, but the Views made a finding of violation only of Article 27, without addressing Article 1. Such a restrictive reading of Article 1 is not backed up by the travaux préparatoires and constitutes a disservice to the indigenous populations of Canada, the United States and many other countries, precisely because the indigenous populations are not ‘minorities’ but ‘peoples’. A future Committee with more progressive members may be inspired by the language of the Kosovo Advisory Opinion and affirm the right of indigenous peoples to internal and external self-determination. Schabas notes that ‘the Committee changed the claim of this Cree Indian Band to internal economic self-determination into a mere right of its members to enjoy their own culture’ (p. 28). Schabas also reminds us that the Committee in its General Comment on reservations clearly stated that ‘reservations to article 1 denying peoples the right to determine their own political status and to pursue their economic, social and cultural development would be incompatible with the object and purpose of the Covenant’.[5]

Right to life (pp. 120-169)

The Commentary shows that the Committee’s first two general comments on Article 6 focused primarily on capital punishment issues and the threat posed by the production and stockpiling of nuclear weapons. The Committee’s new general comment on the right to life, adopted in 2018, replaces the prior general comments and goes on to address related issues, including the link with the protection of the environment. Schabas notes ‘The duty to protect the right to life extends to such matters as environmental degradation, climate change and unsustainable development’ (p. 127).[6] According to the Committee ‘States parties should therefore ensure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment…’ Schabas notes that the Committee’s case law already addresses the relationship with economic and social rights, holding that ‘the right to life concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’.[7] General Comment 36 also reaffirms the doctrine of non-refoulement, strengthening the duty to refrain from deporting, extraditing or otherwise transferring individuals to countries in which there are substantial grounds for believing that a real risk exists that their right to life under Article 6 would be violated.[8]

            Hitherto, the OP case law has dealt primarily with arbitrary executions, enforced disappearances, and the imposition of capital punishment. Schabas notes that ‘the right to life may be violated even when there is no actual deprivation of life. This is the case, for example, where a person is sentenced to death following an inadequate preliminary hearing or an unfair trial, even if the sentence has subsequently been commuted’ (p. 123).[9]

Right of access to information, freedom of opinion and expression (pp. 540-575)

The Committee’s jurisprudence on Article 19 is extensive, especially concerning issues of censorship and the arrest, detention or arbitrary execution of journalists. Article 19(2) protects not only the expression of an opinion, but also the ‘freedom to seek, receive and impart information’.[10] The right to seek information includes a right of access to records in the possession of public bodies. This is particularly important in a world of ‘fake news’ and selective censorship, when governments violate domestic and international law under the cover of secrecy or ‘national security’. This gives rise to the necessity of protecting ‘whistleblowers’, as human rights defenders, about which the Committee is yet to develop jurisprudence. Schabas highlights the relationship between Articles 19 and 17, which protect honour and reputation. In a case where the author had been imprisoned for being a ‘whistleblower’, the author received no redress upon release and endured lengthy unemployment. ‘The Committee said he had the right to be protected against unlawful attacks on his honour and reputation and found that the treatment constituted a violation of article 17’ (p. 494).[11]

            The Committee has produced interesting jurisprudence concerning the relationship between Article 19(3), which provides for the possibility of restricting the exercise of freedom of expression, and Article 20 ICCPR, which imposes an obligation on States to prohibit propaganda for war and the incitement to violence and racial hatred. The case of Faurisson v. France (pp. 560 et seq.)challenged the French Loi Gayssot, which imposes penalties on persons who deny the Holocaust. In that case the Committee held that Article 19 had not been violated, although the many individual opinions appended indicated a malaise among the members about the overreach of the law and the obvious danger to freedom of research and publication. Schabas notes that in its General Comment 34, the Committee addressed this problem stating that ‘laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression’ (p. 561).[12]

            This reviewer remembers that during the drafting of the general comment several Committee members affirmed the ‘right to be wrong’ in historical and other matters and did not think that it was appropriate to use criminal law to suppress incorrect historical views, because it cannot be the role of government to legislate history. Moreover, some members of the Committee referred to the 2008 ‘Appel de Blois’ issued by the non-governmental organization Liberté pour l’histoire, headed by Professor Pierre Nora (Académie française), and co-signed by Timothy Garton Ash (Oxford),[13] this reviewer and many others:

Since 2005 Liberté pour l’Histoire has fought against the initiatives of legislative authorities to criminalize the past, thus putting more and more obstacles in the way of historical research. In April 2007, a framework decision of the European Council of Ministers has given an international dimension to a problem that had until then been exclusively French. In the name of the indisputable and necessary suppression of racism and anti-Semitism, this decision established throughout the European Union new crimes that threaten to place on historians prohibitions that are incompatible with their profession. […] Concerned about the retrospective moralization of history and intellectual censure, we call for the mobilization of European historians and for the wisdom of politicians. History must not be a slave to contemporary politics nor can it be written on the command of competing memories. In a free state, no political authority has the right to define historical truth and to restrain the freedom of the historian with the threat of penal sanctions. We call on historians to marshal their forces within each of their countries and to create structures similar to our own, and, for the time being, to individually sign the present appeal, to put a stop to this movement toward laws aimed at controlling history memory. We ask government authorities to recognize that, while they are responsible for the maintenance of the collective memory, they must not establish, by law and for the past, an official truth whose legal application can carry serious consequences for the profession of history and for intellectual liberty in general. In a democracy, liberty for history is liberty for all.[14]

The General Comment, however, does not have a footnote to this important statement, which I quoted in my 2012 article in the Netherlands International Law Review,[15] analysing all aspects of General Comment 34, including Faurisson[16] and its implications. Schabas also refers to a ‘curious’ reference to the Faurisson decision contained in the general comment, noting that ‘Faurisson is no authority for the statement in the General Comment’ (p. 561). The reference goes back to the insistence of one member who was favourable towards memory laws, but did not want to issue a dissenting opinion. Essentially, as Committee member Michael O’Flaherty noted in an article, the General Comment ‘adjusted the provision on “memory” laws, or “laws that penalise the expression of opinions about historical facts”, to the effect that they are never compatible with the ICCPR (thus overruling Faurisson)’.[17] Schabas notes that in its concluding observations on State reports ‘the Committee has since criticized initiatives in Lithuania that restrict comment on complicity of Lithuanians in Nazi crimes against Jews, in Poland imposing imprisonment for referring to Nazi camps operated in Poland during the Second World War as Polish, and laws in Russia criminalizing the “distortion” of the Soviet Union’s role in the Second World War’ (p. 561).

Protection of the family and the right to marry (pp. 633-666, especially pp. 645-649)

On the issue of the right to marry (Article 23(2)), in 2002 the Committee adopted ‘Views’ in Joslin et al. v. New Zealand,[18] in which a number of lesbian applicants had invoked the Covenant to derive a right of same-sex couples to marry. In the Committee’s Views, based on the clear wording of the Covenant (Article 31 Vienna Convention on the Law of Treaties, VCLT):

Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision, Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. The use of the term ‘men and women’ rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligations of States parties stemming from Article 23, paragraph 2, of the Covenant is to recognize only the union between a man and a woman wishing to marry each other.

Nowak and Schabas suggest that a review of the travaux préparatoires (Article 32 VCLT) could conceivably allow a broader interpretation of the article. This reviewer doubts that, because at the time of the adoption of the Covenant in 1966 and its entry into force in 1976, marriage meant only and exclusively the union of a man and a woman and was not understood as encompassing a civil union between same-sex couples. In this reviewer’s opinion, redefining terms[19] to meet subsequent aspirations does not constitute good faith interpretation under VCLT. In this context it is instructive to focus on the discussion at the Human Rights Council and the General Assembly at the time of the creation of the new LGBT mandate in 2016.[20] The arguments presented by numerous States and non-governmental organizations (NGOs) focused on the incompatibility of the mandate with the overarching obligation of States to protect the family as ‘the natural and fundamental group unit of society’ (Article 23(1) ICCPR, stipulated also in Article 10 ICESCR) and ‘to found a family’ (Article 23(2)), by which it was meant the husband, the wife and the children that may emanate from this union. States and NGOs warned about the dangers of redefining terms or changing the meaning of words to fit the fashion, as this would violate the will of the States parties that ratified the Covenant. The credibility of the Committee—and the predictability of international law in general—depends on its rigorous application of the Covenant and its ‘judicial restraint’. Of course, the Covenant can be modified by amendment as provided for in Article 51 ICCPR. Another possibility would be through a separate Optional Protocol. Above and beyond the provisions of the Covenant, States are free to enact legislation that confers rights on individuals and groups, even if those rights are not protected under the Covenant.

            Besides opening a ‘Pandora’s box’, the quasi-judicial reinterpretation of Article 23 would entail changing the substantive content of a Covenant provision without the agreement of the States parties. Moreover, an obvious conflict would arise with the application of Article 18 of the Covenant which guarantees the ‘freedom to have or to adopt a religion’ and the prohibition on States to interfere with these beliefs, which for billions of human beings are sacred and very much part of their identities. Bearing in mind that same-sex relations are considered wrong or even ‘sinful’ in many societies, a universal treaty like the ICCPR cannot be instrumentalized to impose ‘Western’ approaches on the rest of humanity.

Equality and non-Discrimination (pp. 738-794)

At the outset of the Committee’s work, Article 26 of the Covenant dealt primarily with discrimination on account of gender, race, religion or political opinion, and only with regard to civil and political rights. This was expanded by the watershed ‘Views’ in cases Broeks v. The Netherlands[21]and Zwaan-de Vries v. The Netherlands,[22] analysed by Schabas on p. 758. Although the case dealt with economic rights, which would normally fall under the competence of the Committee on Economic, Social and Cultural Rights, the Committee held that Article 26 was a self-standing provision that applied to any and all discriminations, including unemployment insurance and pension rights. The Committee held that there had been a violation of Article 26 because the Covenant ‘prohibits discrimination in law or in practice in any field regulated and protected by public authority’. This allowed for a decision concerning the right to property, which is not itself protected in the Covenant (Article 17 of the Universal Declaration of Human Rights was not incorporated into ICCPR). Whereas a violation of the right to property per se would not fall within the scope of the Covenant, and be declared inadmissible ratione materiae, a discriminatory confiscation or denial of restitution would. This was the case in Simunek et al. v. Czech Republic,[23] which found a violation of Article 26 because the requirements of the Czech legislation were ‘unreasonable and discriminatory’ (p. 783). The Committee’s Views in Des Fours Walderode v. Czech Republic[24] expanded the prohibition of discrimination to encompass the prohibition of arbitrariness. In effect, the Committee reversed the burden of proof, by requiring that when a governmental decision cannot be rationally explained, it not being apparent whether racial or religious discrimination was at play, the State party should provide additional information to help the Committee understand whether the government action in question was compatible with Article 26 of the Covenant. In this case, it transpired that there had even been a piece of legislation dubbed the Lex Walderode, specifically drafted to block compensation to the Walderode family, and that there had been interference by the executive with the judiciary. Although the Committee did not take the logical step to find a violation of Article 14(1) of the Covenant, it held that Article 26 had been violated in the light of the arbitrary manner in which the government had dealt with the claimant (p. 784). In Joslin v. New Zealand the complainants had also alleged discrimination. The Committee rejected the claim that the refusal to provide for same-sex marriage was contrary to Article 26 of the Covenant. But subsequent concluding observations by the Committee do indicate that there should not be discrimination between heterosexual couples and same-sex unions (p. 787).

Jurisdiction of the Committee and Admissibility Criteria under the Optional Protocol (pp. 984-1059)

Among the most interesting and innovative approaches of the Committee are those that have emerged in the context of the consideration of the Committee’s jurisdiction and the admissibility of communications under the Optional Protocol, which are laid down in Articles 1-5 OP and are further explained in the rules of procedure. It is interesting to note that at the European Court of Human Rights fewer than 10% of all applications survive the admissibility stage. By comparison approximately half of the registered communications before the Committee are declared admissible and proceed to an examination on the merits (p. 1005). As to admissibility ratione loci, the Committee recalls that pursuant to Article 50, the provisions of the Covenant apply without limitation or exception to all parts of a federal State and to all of a State party’s dependent territories (p. 1017). In an application against Australia by one of its nationals who had been held by the United States in Guantanamo, the Committee held that while Australia was not without influence on the circumstances of his detention, ‘the author could not be considered to be under the State party’s “jurisdiction” in the sense of Article 1 of the Optional Protocol’.[25] As to admissibility ratione temporis, it is important to note that in contrast to the European Convention on Human Rights, where an application must be submitted within six months, the OP imposes no time limit for the submission of communications, although an excessive delay, which would render it difficult for the State party and for the Committee to properly analyse the facts and the evidence, may be considered an abuse of the right of submission, if not otherwise explained. As to admissibility ratione materiae, the Committee has dismissed communications against Norway for an alleged violation of the right of property and for discrimination with regard to income tax assessments. Similarly, communications claiming violations of the right to asylum, the right to obtain compensation, and the right to strike have been declared inadmissible in the absence of a specific article in the Covenant protecting these rights.

            Many communications have been declared inadmissible on account of Article 5(2)(b), which requires the exhaustion of domestic remedies. However, ‘only such remedies must be sought that are effective, available to the author without limitation and do not take too long’ (p. 1048). The Committee has developed consistent jurisprudence to the effect that authors need not exhaust judicial or other remedies which offer no reasonable prospect of success. For example, in Länsmann v. Finland, the Committee reiterated that ‘whenever the jurisprudence of the highest domestic tribunal has decided the matter at issue, thereby eliminating any prospect of success of an appeal to the domestic courts, authors are not required to exhaust domestic remedies’.[26]

Interim measures of protection

This Commentarydevotes scant attention to the Committee’s practice to request interim measures of protection, and the index only lists entries on pp. 415, 980, 1021, 1026 and 1027. Admittedly, the Covenant does not contain any article specifically providing for interim measures of protection, but the Committee developed the practice early on in connection with capital punishment cases, in which the Committee requested the State not to carry out a death sentence for as long as a case was being examined. This practice was formalized in the Committee’s rules of procedure, and was used and is being used to prevent ‘irreparable harm’, particularly in cases of threatened deportation or extradition and environmental degradation. Rule 94 of the Rules of Procedure formalizes the practice, as explained in General Comment 33, which goes on to say that interim measures may be requested not only by the author but decided by the Committee acting motu proprio (p. 1026). A fourth edition of the Commentary could further expand and illustrate this issue.

Possibility of the further development of the Committee’s jurisprudence

Admittedly, a Commentary can only elucidate the existing text of the Covenant and its Protocols, the Committee’s general comments, concluding observations and case law. This reviewer, however, is eager to see how the Committee will tackle many situations to which the Covenant and the Committee’s jurisprudence apply, including the right to peace, the right to identity, the right to have access to complete and reliable information, the necessity to protect human rights defenders, including ‘whistleblowers’, the corruption of democracy through ‘manufactured consent’, the right to privacy in the digitalized world, etc. The Covenant certainly has ever increasing relevance in the ‘brave new world’ of globalization.

Inter-State complaints (pp. 913-942)

Article 41 of the Covenant provides for the possibility of lodging inter-State complaints. A total of 49 States parties to the ICCPR have provided the declaration under Article 41, including Germany, the Netherlands, Switzerland, Russia and the United States, and have accordingly accepted the competence of the Committee to receive inter-State complaints and to establish an ad hoc Conciliation Commission under Article 42 ICCPR. Although, hitherto, these articles have not been invoked, similar provisions exist in other Conventions, including the Constitution of the International Labour Organisation (ILO), the UNESCO Convention, the Convention Against Torture, and the Convention on the Elimination of all Forms of Racial Discrimination (CERD). Cases have been heard before ILO Tribunals, the UN Committee on the Elimination of Racial Discrimination and before the ECHR. Schabas explains ‘The reason for the apparent reluctance is likely that the submission of an inter-State complaint places such a burden on political and diplomatic relations that governments resort to this tool in only extreme situations.’ Yet, an inter-State complaint, e.g. the Greek and Turkish cases before the ECHR, bring international attention on particularly grievous human rights violations and help vindicate the integrity of a human rights treaty. In such cases the complaining State is appealing to the collective responsibility of all member States for the observance of treaty obligations.This reviewer believes that the under-utilized inter-State complaints procedure has considerable potential and should be employed not just by a single State but better by a group of States to reaffirm their common interest in seeing erga omnes obligations respected. In this sense, filing an inter-State complaint could be seen as a kind of actio popularis (p. 917). Schabas usefully reflects the inter-State practice of other bodies and notes ‘The only inter-State complaints under United Nations human rights treaties are those filed in March and April 2018 by Qatar against Saudi Arabia and the United Arab Emirates and by the State of Palestine against Israel’ pursuant to CERD (p. 917).

            Bearing in mind that this volume encompasses LXXII pages of introduction plus 1171 pages of development, it is understandable that certain appendixes in Nowak’s 2nd edition have been omitted, including: The full text of the ICCPR (each article is already reproduced at the beginning of each section), Reservations, Declarations, Notifications, Objections relating to the ICCPR and OP, Rules of Procedure of the Human Rights Committee, the text of General Comments 1/13 to 21/44, Consolidated Guidelines for State reports, a list of Individual Communications under the OP through 2004, and a Table of UN Documents concerning the CCPR, and a Model Communication. These documents are accessible on the internet www.ohchr.org and www.un.org.[27]

            Having read and used the first and second editions of this Commentary, the reviewer appreciates the opportunity of getting to know the third edition. In spite of its enormous length, the Commentary is user-friendly, making the norms and practice of the Committee accessible to many lay people, not only lawyers and specialists. One regrets the fact that the prefaces to the first and second editions are not reproduced and that, unlike these earlier editions, there is no Bibliography, although the footnotes themselves provide a wealth of sources and references. As a former Secretary of the UN Human Rights Committee and the Chief of the Petitions Section at the Office of the High Commissioner for Human Rights (OHCHR), I heartily recommend this Schabas third edition as an indispensable handbook. A future edition of this Commentary could further highlight the cross-fertilisation with other tribunals’ jurisprudence and any transnational judicial dialogue, having regard to the jurisprudence of regional human rights bodies, the ICJ and the International Criminal Court (ICC) concerning the ICCPR.


De Zayas A, Roldán Martín Á (2012) Freedom of opinion and freedom of expression: some reflections on General Comment No. 34 of the Human Rights Committee. NILR 59(3):425-454

Evatt E (1999) Democratic People’s Republic of Korea and the ICCPR. Aust J Hum Rights 5:215-224

O’Flaherty M (2012) Freedom of expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34. Hum Rights Law Rev 12(4):627-654. http://www.corteidh.or.cr/tablas/r29946.pdf. Accessed 2 October 2020

*             Alfred de Zayas


                Geneva, Switzerland

[1] See Evatt (1999).

[2] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403, https://www.icj-cij.org/files/case-related/141/141-20100722-ADV-01-00-EN.pdf.

[3] See the report to the General Assembly of the Independent Expert on the promotion of a democratic and equitable international order, A/69/272.

[4] Lubicon Lake Band v. Canada, No. 167/1984, § 33.

[5] General Comment 24, § 9.

[6] General Comment 36, § 62, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf.

[7] Toussaint v. Canada, No. 2348/2014, § 11.3.

[8] General Comment 36, § 30.

[9] Levy v. Jamaica, No. 719/1996 § 7.3.

[10] General Comment 34, §18.

[11] Kerrouche v. Algeria, No. 2128/2012, para. 8.6.

[12] General Comment 34, § 49, https://digitallibrary.un.org/record/715606?ln=en.

[13] As Timothy Garton Ash pointed out in his article ‘The Freedom of Historical Debate Is under Attack by Memory Police’, published in The Guardian, 16 October 2008, ‘The wrong answer depends on where you are. In Switzerland, you get prosecuted for saying that the terrible thing that happened to the Armenians in the last years of the Ottoman empire was not a genocide. In Turkey, you get prosecuted for saying it was. What is state-ordained truth in the Alps is state-ordained falsehood in Anatolia.’

[14] See https://www.lph-asso.fr/index6a7b.html.

[15] De Zayas and Roldán Martín (2012).

[16] Faurisson v. France, No. 550/1993.

[17] O’Flaherty (2012), p. 653.

[18] Joslin et al. v. New Zealand, No. 902/1999.

[19] Lewis Carroll, Through the Looking Glass (1872): ‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’ ‘The question is’, said Alice, ‘whether you can make words mean so many different things.’ ‘The question is’, said Humpty Dumpty, ‘which is to be master—that’s all’. The Human Rights Committee is not a ‘master’ and should not engage in ‘newspeak’ (Orwell, 1984) if it does not want to risk losing its authority.

[20] In this context it should be noted that the establishment by the Human Rights Council of a LGBT mandate was hotly debated and resolution 32/2 was adopted by a mere 23 votes in favour, 18 against and 6 abstentions (i.e. by less than half of the 47-member Council). Resistance continued in the General Assembly, where it was challenged by the Organization of Islamic Cooperation (which failed, albeit the number of those opposing the mandate and abstaining significantly surpassed the votes in favour of the mandate).

[21] Broeks v. The Netherlands, No. 172/1984.

[22] Zwaan-de Vries v. The Netherlands, No. 182/1984.

[23] Simunek et al. v. Czech Republic, No. 516/1992.

[24] Des Fours Walderode v. Czech Republic, No.747/1997.

[25] Hicks v. Australia, No. 2005/2010, § 4.6.

[26] Lansman et al. v. Finland, No. 511/1992 § 6.2.

[27] See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en.

Categories Human Rights, Independent expert, International lawTags , ,

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