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  • Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights
  • Ineke Boerefijn* (bio)

I. Introduction

As early as 1943, Hersch Lauterpacht proposed that observance of the International Bill of Rights must consist of both “supervision in its widest sense” 1 and enforcement. “Supervision in its widest sense” would comprise of all measures taken to ensure adherence to the Bill of Rights “short of actual enforcement by political or physical means of compulsion.” In his opinion, this included:

the collection and publication of information, the receipt of petitions from private sources and representation from States, the communication with governments concerning such petitions and representations, the submission to the highest international political authority of periodical reports on the operation and observance of the Bill of Rights, and, finally, the transmission to that authority of cases of infraction of the Bill sufficiently serious to call for further investigation, for negotiation by the political authority, and, if necessary, for collective enforcement. 2

Such an all encompassing system has not been achieved so far, and it may be doubted whether it will ever be attained. States have proved reluctant to [End Page 766] accept far-reaching means of supervision of the implementation of standards by the international community. 3 Nevertheless, some progress has definitely been achieved, stimulated, inter alia, by the activities of the independent bodies established pursuant to international instruments. Although these bodies have been granted few powers and have seemed ineffective at first sight, through the years they have managed to gain ground and to contribute significantly to the development of the system. An elaborate system has been established to supervise states’ behavior either on the basis of the Charter of the United Nations itself or on the basis of human rights treaties which established separate mechanisms. This article deals with an aspect of the latter system, focusing especially on developments relating to the reporting procedure laid down in Article 40 of the Covenant on Civil and Political Rights (CCPR). 4 The system unquestionably has its built-in limitations: the initial step rests with the states, who must first ratify or accede to a legally binding instrument; the system continually requires at least some level of voluntary cooperation by states; and there are no effective sanctions for noncompliance with the obligations States parties have accepted. 5

The CCPR entered into force on 23 March 1976 after the deposit of the thirty-fifth instrument of ratification. The Human Rights Committee, established under Article 28 CCPR, started its activities in 1977. 6 As of July 1995, 130 states had accepted the standards laid down in this instrument. In addition to substantive standards, through their act of ratification or accession states have committed themselves “to submit reports on the measures they have adopted which give effect to the rights recognized [in the Covenant] and on the progress made in the enjoyment of those rights.” 7 [End Page 767] These reports shall be transmitted to the Committee for consideration; the “reports shall indicate factors and difficulties, if any, affecting the implementation of the . . . Covenant.” 8 On the basis of Article 40, Paragraph 4, the Committee shall study the reports, and it shall transmit its general comments to the States parties. Although lengthy discussions took place during the drafting stage of the Covenant on the supervisory machinery, the final outcome was rather vague. Whether this has turned out to be a disadvantage, will be considered in this article. 9


A. General

The drafting history makes clear that the reporting procedure was originally not accorded a major role in the system of supervision. Various options were considered, such as a 1947 proposal by the United Kingdom to the Drafting Committee. This proposal included a nonperiodic system of reporting, upon request by the Secretary-General as authorized by the General Assembly. Such a report should contain an explanation, certified by the highest legal authorities in the state concerned, as to the manner in which the law gives effect to provisions of the Bill of Rights by that state. 11 A 1947 United States...

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