13.1 Introduction

The international human rights regime consists of a multifaceted web of regional and global treaties, institutions, and compliance monitoring mechanisms.Footnote ¹ While some elements complement each other, others create overlap and redundancy in terms of protected rights and of the institutions and mechanisms created to monitor compliance with them. Many core civil and political rights are covered by general conventions at both the regional and the global levels and are fleshed out further by additional group- or subject-specific treaties. In addition to monitoring mechanisms such as State reporting and inquiry procedures, the three regional human rights regimes in Europe, the Americas, and Africa as well as the nine core UN human rights treaties all provide for individual complaints/communications procedures (ICPs) that enable aggrieved individuals to have the merits of alleged human rights violations decided by independent institutions. One dimension along which these institutions differ is their institutional design. The three main regional human rights conventions feature full-fledged courts (in addition to human rights commissions in the African and inter-American human rights systems) that are staffed with professional judges and whose judgments are legally binding, whereas the committees established by the UN human rights treaties, while taking some design cues from judicial institutions, are composed of part-time experts and issue legally non-binding pronouncements that are called “views,” “opinions,” or “decisions.”

A frequent assumption in the human rights domain (also elsewhere) is that courts and legally binding judgments will yield better rights protection by way of better compliance than non- or quasi-judicial institutions whose output lacks such legal status. Pierre-Henri Teitgen, one of the chief designers of the European Convention on Human Rights (ECHR), put the sentiment thus when arguing against the inclusion in the ECHR’s monitoring machinery of solely a commission with only recommendatory powers: “If … we really wish to have collective protection in Europe of rights and fundamental freedoms, it is necessary to go beyond a simple Recommendation or the mere publication of a Report. We must refer the matter to the only force which, in these countries, has a final authority, that is justice; there must be a Court and Judges.”Footnote ² Conversely, in the context of the UN human rights treaty bodies, the lack of legally binding status of their pronouncements has been repeatedly adduced as one reason for the compliance problems encountered.Footnote ³ The suggestion is that legally binding court judgments generally have greater purchase with respect to inducing compliance than committee decisions that come without such legal status.

In this chapter I argue that the significance of legally binding or non-binding status for compliance is conditional on a number of contextual political and institutional factors, among them regime type, expected costs of compliance and non-compliance, and whether violations are isolated or occur as a result of State policy.Footnote ⁴ To explore my expectations empirically, I take advantage of the existence of significant jurisdictional overlap regarding individual complaints between the European Court of Human Rights (ECtHR), the UN Human Rights Committee (HRC), and the UN Committee against Torture (CAT) with respect to many European States. Because State responses to adverse decisionsFootnote ⁵ can be expected to be affected inter alia by the specific issues and rights involved, I focus on compliance with adverse findings concerning one particular right: the core physical integrity right of freedom from torture and from inhuman or degrading treatment or punishment.Footnote ⁶ The analysis provides indicative evidence that compliance with so-called conditional violations – violations that have not yet occurred, but might with some probability if a State were to implement its planned course of action – concerning the non-refoulement norm is as high for treaty body decisions as it is for ECtHR judgments. When it comes to remedying actual past or ongoing violations, however, the ECtHR performs better overall, but with significant differences between countries with different democratic credentials. The implication is that the ostensibly institutionally weaker treaty body arrangements perform well when the political and material stakes for the respondent State are comparatively low, but when those stakes increase, a stronger institutional design performs better (if still far from perfectly). If respondent States are insufficiently or only weakly democratic, however, compliance is equally low for both types of institutions. While application numbers reveal a preference among petitioners for a judicial assessment of their grievances, the work of the treaty bodies can be consequential under certain circumstances, especially with respect to preventing violations.

13.2 Right to Freedom from Torture: Institutional Overlap

Few human rights are as widely affirmed in international instruments as the right to be free from torture and from other unduly harsh forms of treatment or punishment. The Universal Declaration of Human Rights (1948) set the precedent when it affirmed that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). The three regional human rights conventions in Europe,Footnote ⁷ the Americas,Footnote ⁸ and AfricaFootnote ⁹ followed suit, as did the Arab League,Footnote ¹⁰ the Organisation of Islamic Cooperation,Footnote ¹¹ ASEAN,Footnote ¹² and the European Union,Footnote ¹³ with some regions adding further subject-specific treaties.Footnote ¹⁴ At the UN level, five of the nine core human rights treaties include provisions outlawing torture: the UN Convention against Torture (UNCAT),Footnote ¹⁵ the International Covenant on Civil and Political Rights (ICCPR),Footnote ¹⁶ and the conventions on the rights of children,Footnote ¹⁷ of persons with disabilities,Footnote ¹⁸ and of migrant workers and their families.Footnote ¹⁹ The prohibition of torture is recognized as customary international law and widely considered to be ius cogens.Footnote ²⁰ The Statute of the International Criminal Court includes torture as a crime against humanity and a war crime.Footnote ²¹

As of January 1, 2022, all forty-seven countries then subject to the ECHR/ECtHRFootnote ²² had ratified ICCPR, UNCAT, and the Convention on the Rights of the Child, all but one had ratified the Convention on the Rights of Persons with Disabilities, while only four were party to the Migrant Workers Convention. The first four treaties have active ICPs that could in some instances be used to address the same alleged violations of the prohibition of torture and of related offences.Footnote ²⁴ Twenty-one ECHR parties have accepted all four active ICPs while two countries have accepted only one. All but three have accepted the ICCPR’s ICP and thirty-nine have accepted UNCAT’s.Footnote ²⁵

Figure 13.1 depicts ICP acceptance under the four relevant conventions. While it shows the present state of overlap, it should be noted that there have been (sometimes extended) periods of time during which countries have been subject to only a single individual complaints mechanism. One reason has to do with temporal availability: the ECtHR was set up in 1959, but the HRC’s and CAT’s ICP competences became operational only in 1976 and 1987, respectively, and those of the other two committees later still, in 2008 (Rights of Persons with Disabilities) and 2014 (Rights of the Child). Eastern and Central European countries only began to accept ICPs near the end of the Cold War and until that time were not subject to any of them. Even when available, States differ significantly in terms of the time between accepting the first and second of these ICPs (which are optional in the case of the treaty bodies and were so under the ECHR until 1998), ranging from less than six months for Azerbaijan, Poland, and Bulgaria to over thirty-eight years for Belgium and Germany.

Figure 13.1 Acceptance of ICPs of relevant UN human rights treaties by ECHR partiesFootnote ²³

Only the HRC and CAT have produced quantitatively meaningful output against ECtHR parties so far.Footnote ²⁶ Figure 13.2 shows which States have received adverse decisions related to the prohibition of torture and from which body. Twenty States have received torture-related judgments only from the ECtHR, while two, Norway and Denmark, were until the end of 2019 – the cut-off date of the dataset used for this research – subject to adverse decisions only from the HRC and CAT. Eight countries have been subject to adverse decisions involving the prohibition of torture from all three bodies while six small States (Andorra, Liechtenstein, Monaco, Iceland, Luxembourg, and San Marino) have so far never been found responsible for having violated Article 3 ECHR, Article 7 ICCPR, or any UNCAT provision. In terms of the scope of the relevant treaty provisions, it is to be noted that the first two articles are single-paragraph provisions whereas UNCAT spells out rights and obligations at greater length over several articles. While the provisions and the jurisprudence based on them are not identical, there is considerable substantive overlap in terms of rights and obligations covered as a result of treaty interpretation and reading ECHR/ICCPR provisions in conjunction with other articles.Footnote ²⁷

Figure 13.2 Adverse torture-related decisions by respondent State and issuing institution

Why applicants turn to the treaty bodies when they also have access to the ECtHR is worth investigating; some reasons that have been suggested in the literature have to do with the narrowing of access to the ECtHR, the (expected) shorter time to a decision, applicant-friendlier rules of evidence and different interpretive takes on certain aspects related to the prohibition of torture.Footnote ²⁸ The question to be explored further in the following, however, is how States respond to the signals received from these two types of institutions in terms of complying, or not complying, with them and what causal factors likely play a role.

13.3 Theoretical Expectations

This section addresses from a theoretical point of view the causal factors that likely affect whether States will comply with ECtHR judgments and treaty body decisions and how such factors may play out differently with respect to the two types of decisions. I discuss the following factors: regime type and rule of law, costs of compliance and non-compliance, and systematic as opposed to isolated infringements.

13.4 State of Compliance with Torture-Related Decisions

This section presents the state of compliance with ECtHR, HRC, and CAT decisions involving violations of the prohibition of torture that have been rendered until the end of 2019. Since I am interested especially in the comparative performance of the institutionally weaker UN human rights treaty bodies, only the twenty-one States that have received at least one relevant adverse HRC or CAT decision are included in the dataset, leaving out for the time being the twenty States subject only to adverse ECtHR judgments. Compliance is coded in accordance with the assessment of the body supervising the implementation of the decisions. In the case of the ECtHR, the Council of Europe’s Committee of Ministers is charged with the supervision of the execution of the ECtHR’s judgments (Article 46(2) ECHR). Monitoring whether States have paid the financial compensation awarded and taken individual and/or general measures to provide reparation in the applicant’s case and prevent a recurrence of the violation,Footnote ⁶⁰ the Committee adopts a final resolution ending supervision when it is satisfied that all measures necessary for compliance have been adopted.Footnote ⁶¹

HRC and CAT themselves conduct second-order compliance monitoring, having created the roles of rapporteur for follow-up of views in 1990Footnote ⁶² and 2002,Footnote ⁶³ respectively. While the committees do not, for the most part,Footnote ⁶⁴ use the term “compliance” but refer to “satisfactory implementation” or “satisfactory resolution,” the terms of the CAT rapporteur for follow-up on decisions note the mandate to “monitor” and “encourage compliance” by examining whether respondent States have adopted “measures … pursuant to the Committee’s decision.”Footnote ⁶⁵ In the case of the HRC the follow-up rapporteur is similarly charged with “ascertaining the measures taken by States parties to give effect to the Committee’s Views.”Footnote ⁶⁶ The committees’ practice shows that the standard for “satisfactory implementation” is in principle one of substantive compliance so that their assessments can be taken as reasonable indicators for this.

13.4.1 State of Compliance: ECtHR

The ECtHR dataset comprises 1,521 judgments involving Article 3 ECHR that the ECtHR rendered against nineteen countries between 1990 and 2019. Fourteen of these are judgments recognizing friendly settlements or solutions with an award of costs and expenses.Footnote ⁶⁷ Of those on the merits, fourteen involve conditional violations whereas 1,493 find past or ongoing violations of Article 3 ECHR, alone or together with infringements of other ECHR provisions and, in fourteen instances, jointly with conditional violations.Footnote ⁶⁸ As of December 31, 2021, the Committee of Ministers had adopted final resolutions indicating sufficient compliance with respect to 71.4 percent of non-refoulement judgments and 100 percent of friendly settlements/solutions (see Table 13.1). Judgments declaring past or ongoing violations, by contrast, have been complied with at a rate of about only 36.4 percent. Since these are the most frequent type of judgment, overall compliance is, at 37.3 percent, equally low.

Table 13.1 Compliance status of ECtHR judgments by finding/violation type (as of December 31, 2021)

Type of finding/violation	Final resolution adopted	Supervision pending	Sum
Conditional non-refoulement violation(s)	10	4	14
Past/ongoing violation(s)	544	949Footnote †	1,493
Recognition of friendly settlement/solution	14	0	14
Total	568	953	1,521

^† Includes 14 judgments that find past/ongoing as well as conditional violations.

Source: Author’s dataset based on HUDOC (hudoc.echr.coe.int/) and HUDOC Exec (hudoc.exec.coe.int/) databases

Judgments related to Article 3 ECHR are unevenly distributed (see Figure 13.3). Russia by far dominates the dataset with 856 observations,Footnote ⁶⁹ followed by Ukraine (215), Greece (116), and Bulgaria (91); the remaining countries account for considerably fewer judgments. With a high case count and low national compliance rate of 19.2 percent, Russia drives down the overall compliance rate; without Russia, this rate increases to 54.9 percent.

Figure 13.3 ECtHR judgments involving violations of Article 3 ECHR (–2019), by country

13.4.2 State of Compliance: HRC and CAT

Table 13.2 shows the compliance status for HRC’s and CAT’s torture-related decisions, including data from their latest available follow-up reports of 2020.Footnote ⁷⁰ Until the end of 2019, the HRC had issued 242 adverse views against 33 different ECHR parties, 75 of which involved violations of Article 7 ICCPR, by itself or in combination with other provisions. Of these, a good third concerned conditional non-refoulement violations while the remaining views addressed actual violations. The rate of (documented) compliance is low, at 18.6 percent, and is better for conditional violations (37 percent) than for actual ones (8.3 percent). CAT has found violations of UNCAT against 18 ECHR partiesFootnote ⁷¹ in 92 decisions. CAT has assessed 88.5 percent of the 61 conditional violations as satisfactorily resolved, but only 25.8 percent of the decisions identifying past or ongoing violations. CAT’s overall compliance rate is 67.4 percent. Combined, the compliance rate across the two bodies is 45.5 percent. Unlike supervision in the ECHR/ECtHR system, however, not all treaty body decisions are systematically covered by the follow-up procedures and 30 decisions do not make any appearance in the follow-up reports, their implementation/compliance status thus being unknown.

Table 13.2 Follow-up assessments of HRC views and CAT decisions against ECHR parties

	Satisfactory resolution	All other assessmentsFootnote *	No information	Sum
Adverse HRC views (Art. 7 ICCPR)	14	39	22	75
thereof:
Cond. non-refoulement violations	10	4	13	27
Past/ongoing violations	4	35	9	48
Adverse CAT decisions	62	22	8	92
thereof:
Cond. non-refoulement violations	54	5	2	61
Past/ongoing violations	8Footnote †	17Footnote ††	6	31
Total HRC and CAT	76	61	30	167

^* Includes e.g., findings of “follow-up ongoing,” “lack of implementation” and closed follow-up due to applicants having gone missing.

^† Includes five decisions with a follow-up assessment of “partially satisfactory resolution.”

^†† Includes one decision that found both a conditional and an actual violation.

Source: Author’s dataset based on HRC and CAT annual and follow-up reports

As in the case of ECtHR judgments, adverse findings by the treaty bodies are unevenly distributed (see Figure 13.4). The 3 countries that top the list are unusual suspects for violations of physical integrity rights: Denmark (32 decisions), Sweden (28), and Switzerland (26). The reason behind this counterintuitive finding is the fact that all but 6 of their combined 86 adverse decisions concern conditional violations of the non-refoulement norm.Footnote ⁷²

Figure 13.4 Torture-related HRC views and CAT decisions against ECHR parties (–2019) by country

13.5 Conclusion

The existence of jurisdictional overlap in the human rights domain results in a growing body of decisions coming from different institutions that address the same or related rights with respect to the same States. This raises, among other things, the question of their comparative effectiveness in resolving disputes and providing remedies to victims of human rights violations. This chapter has compared rates of compliance with adverse decisions concerning the right to be free from torture and inhuman and degrading treatment or punishment issued by three institutions with ICP jurisdiction over European States as one indicator of such effectiveness.Footnote ⁸⁰ While a reliable identification of the causal factors affecting compliance and non-compliance and their relative importance in different institutional contexts requires research methods that can deal with sizable numbers of cases and variables, such as multivariate regression analysis or qualitative comparative analysis (QCA), the present text has highlighted select factors expected to be consequential with respect to furthering or inhibiting compliance with ECtHR judgments, treaty body views, or both, and taken a first look at the distribution of compliance and non-compliance across different types of decisions and countries. The empirical evidence tentatively suggests that the UN human rights treaty bodies can induce compliance equally as well as regional courts when their decisions concern conditional violations and are addressed to liberal democracies, but that the ECtHR performs comparatively better when it comes to findings of actual past and/or ongoing violations. However, when a State lacks the aspiration to adhere to the values embodied in human rights norms and in independent monitoring, both institutional settings as they currently exist are incapable of nudging such a State toward compliance with adverse decisions. Further research will need to engage in more fine-grained analysis to assess causal pathways in greater detail, but it seems clear that the presence or absence of a particular legal status of the output of individual complaints procedures is, by itself, determinative neither of compliance nor of non-compliance.

14.1 Introduction

Despite the proliferation of international regimes in recent decades, compliance with treaty obligations remains a topic of much debate.Footnote ¹ The field of human rights law has seen exponential growth with new treaties aimed at protecting broad categories of rights,Footnote ² the rights of particular groups,Footnote ³ or rights within a specific geographic space.Footnote ⁴ With this range of protected rights has come an array of compliance mechanisms, some successful and others less so.

Scholars have sought to examine and measure the effectiveness of these mechanisms, to understand what works and what does not, as well as to understand why States bind themselves to these instruments. Many scholars look at this from a macro perspective, examining global compliance with particular rights, or using international measures to compare or rank States’ compliance. Examples in this field include Hathaway,Footnote ⁵ Simmons,Footnote ⁶ and Landman and Carvalho.Footnote ⁷ Such works provide an important indication of levels of compliance and the differing success of various treaties in protecting the rights they secure, but they tell us very little about how particular countries experience compliance with their human rights obligations.

This chapter, therefore, examines the question of compliance with human rights treaties at a micro level, looking at the United Kingdom’s (UK) experience with the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The former is an important global treaty with a comparatively weak oversight model, the latter a regional example which is arguably one of the most successful human rights treaties in existence.Footnote ⁸ In order to carry out this examination, this chapter provides an overview of each treaty’s compliance mechanism before looking at the impact each has had on the protection of human rights in the UK.

The UK has been selected as the basis of this analysis as it was heavily involved in drafting both instruments, and, whilst it has historically had a good record in relation to both, it is currently experiencing a period of significant debate around the future of its human rights protections, making questions about the protections offered by treaties timely.Footnote ⁹ It is hoped that the lessons learned in the context of the UK, ICCPR, and ECHR will nevertheless be relevant beyond just these contexts and will contribute to the wider debate on human rights treaty compliance. The ICCPR and ECHR have been chosen as they protect similar but not wholly overlapping sets of rights.Footnote ¹⁰ Whilst the fact that the UK is party to both may mean that the use of these instruments has developed somewhat differently than might be the case in a State which is party to just one, the selection of these instruments allows for a direct contrast of two comparable instruments in a single jurisdiction.

This analysis demonstrates the problems with the trade-off that takes place between designing treaties to which States will be willing to bind themselves, on the one hand, and designing treaties which are possessed of strong and effective compliance mechanisms, on the other. Building on the UK experience, this chapter concludes that strong compliance mechanisms appear central to ensuring the effectiveness of human rights treaties.

14.2 The International Covenant on Civil and Political Rights

The ICCPR has been called ‘probably the most important human rights treaty in the world’ in recognition of its global coverage and wide range of protected rights.Footnote ¹¹ Despite its importance, however, it serves as an excellent exemplar of the trade-offs required to secure broad global adoption of a human rights treaty. Indeed, the content, compliance mechanisms, and delayed entry into force of the ICCPR all serve to illustrate its difficult beginnings.

It had initially been intended by the United Nations (UN) that there would be a single treaty to protect both the civil and political rights and the economic and social rights contained in the Universal Declaration of Human Rights (UDHR).Footnote ¹² Disagreement however meant that this was not to be, and the result was the creation of both the ICCPR and International Covenant on Economic Social and Cultural Rights (ICESCR).Footnote ¹³ The aim of both was to translate the UDHR into a treaty, binding on all States parties which would be ‘backed up by international supervision and enforcement’.Footnote ¹⁴ There was further discord between States when it came to drafting the ICCPR and in particular its compliance mechanism.Footnote ¹⁵ One delegate to the drafting committee described the drafting of this mechanism as ‘the most difficult and controversial aspect’ of the whole process.Footnote ¹⁶ It is perhaps unsurprising then that proposals for compliance mechanisms which included ‘an International Court of Human Rights empowered to settle disputes concerning the Covenant’ were not adopted.Footnote ¹⁷

Whilst it may not enjoy the quasi-judicial functions some envisaged,Footnote ¹⁸ compliance with the ICCPR is overseen by the Human Rights Committee (HRC). The HRC is comprised of eighteen individuals who ‘are independent members who do not represent their national states or any other entity’.Footnote ¹⁹ It has ‘responsibility for monitoring [the ICCPR’s] implementation’,Footnote ²⁰ a responsibility it discharges in three main ways: ‘the examination of States’ reports, the decision of individual communications, and the writing of General Comments.’Footnote ²¹

The system of States parties’ reports to the HRC is governed by Article 40 of the ICCPR. These reports provide information on how States parties ‘give effect to the rights recognized in the Covenant and on the progress made in the enjoyment of those rights’.Footnote ²² The reports also ‘indicate the factors and difficulties … affecting the implementation of the [ICCPR]’.Footnote ²³ This allows the HRC to focus on issues highlighted by States parties in their self-reporting to inform dialogue between the HRC and States parties.Footnote ²⁴ Processes exist to allow the HRC to request further reports where necessary or to raise the absence of a report with individual States, but, importantly, the HRC does not have any power to force States parties to accede to such requests.Footnote ²⁵

The second compliance mechanism is individual communication to the HRC, provided for in the First Optional Protocol to the ICCPR.Footnote ²⁶ Parties to the Protocol recognise ‘the competence of the [HRC] to receive and consider communications from individuals’.Footnote ²⁷ The HRC is not empowered to issue judgments, rather its decisions are referred to as ‘views’.Footnote ²⁸ These are non-binding in nature and lack the legal force of judgments; domestic courts have frequently rejected any assertion that these views are binding.Footnote ²⁹ Nonetheless, the HRC has made apparent its opinion that States parties ought to comply with these views and act to remedy any violation.Footnote ³⁰ However rates of compliance with the HRC’s views are low. One study put the compliance rate at around 12 per cent, described as ‘a low figure by any measure’.Footnote ³¹ There are 116 States parties to the Optional Protocol (from a total of 170 States parties to the ICCPR), but this does not include the UK.Footnote ³² The UK has noted that it ‘remains to be convinced of the added practical value to people in the United Kingdom of rights of individual petition to the United Nations’.Footnote ³³

The final mechanism at the disposal of the HRC is the issuing of General Comments. These have evolved to allow for the HRC to comment on matters which are relevant to States parties to the ICCPR, such as the interpretation of specific treaty provisions or the wider obligations of States parties. To date, thirty-seven have been issued.Footnote ³⁴ Whilst these General Comments are not of themselves related to enforcement of the ICCPR, they ‘have proven to be a valuable jurisprudential resource’ when interpreting the ICCPR.Footnote ³⁵ These are not discussed in any greater detail here as they are general in nature and are not directed at individual States’ compliance.

As this shows, although there are mechanisms in place to drive compliance with the ICCPR these are limited by the fact that they are non-enforceable: they require States parties to act on the HRC’s dicta, albeit with a treaty obligation to uphold and protect the rights secured by the ICCPR. Particularly for individuals within States, such as the UK, which have not accepted the right to individual petition to the HRC, there is no means by which they can bring complaints against a State. Indeed, in the UK, individuals can do nothing directly to enforce their rights under the ICCPR.

Academic commentary on the effectiveness of UN treaty bodies suggests more widely that there are concerns with the level of compliance they generate. Looking at the perception of the effectiveness of the wider UN human rights treaty body system, one study noted a widespread view ‘that [UN human rights] treaty bodies are only to some extent able to generate public pressure, or even not at all’.Footnote ³⁶ This negative outlook is further reinforced by Krommendijk’s assessment of the effectiveness of treaty body recommendations, which concluded that, in the countries he surveyed, such recommendations ‘largely remained ineffective … [and] have either been rejected by governments or they have been so vague and broad that they simply did not elicit any follow-up measures’.Footnote ³⁷ Against this backdrop, the UN has itself noted in respect of treaty bodies that ‘While there have been many cases which could be considered as “success stories”, it is clear that a large number of States fail to apply the remedies as recommended.’Footnote ³⁸ The analysis which led to this pronouncement included an examination of compliance with the HRC’s views, therefore it seems reasonable to suggest that the general trends seen in relation to the treaty bodies extend to the HRC.

14.3 The UK and the International Covenant on Civil and Political Rights

Although the UK played a significant role in the drafting of the ICCPR,Footnote ³⁹ no steps have been taken to translate the protections afforded by the ICCPR into UK domestic law.Footnote ⁴⁰ It is hard to point to any direct impact that treaty membership has had on UK legislation. In the 1980s, ‘the United Kingdom Government’s representative to the UN Human Rights Committee was unable to identify even one case in which the British Courts had made reference to the Covenant’.Footnote ⁴¹ A decade later, Klug, Starmer, and Weir noted that ‘The United Kingdom ratified the [ICCPR] in May 1976, but has since done nothing substantial to give effect to ratification or even publicly to recognise it.’Footnote ⁴²

The ICCPR obliges States parties to give effect to the treaty in their own laws,Footnote ⁴³ but how this happens is a matter for States themselves.Footnote ⁴⁴ In the UK, despite suggestions to the contrary from the HRC, successive governments have been ‘content to assume … no changes [to UK domestic law] were necessary because the rights and freedoms recognised in the Covenant are inherent in the United Kingdom’s legal system and are protected by it and by Parliament’.Footnote ⁴⁵

The lack of mandatory oversight of individual cases by a judicial or quasi-judicial treaty body has been suggested as a reason for the UK’s lack of engagement with and knowledge of the ICCPR. It has meant that ‘the HRC has had no opportunity to give a ruling upon United Kingdom compliance with its obligations under the ICCPR in the context of individual communications’.Footnote ⁴⁶ This in turn has deprived the UK courts of an opportunity to engage more directly with the HRC’s decision-making. Although the HRC is not a court and so dialogue in the sense seen with international courts may not occur, Sandholtz has noted that in States which accept the right to individual petition, views of the HRC relating to that State are ‘available to activists, advocates and courts … to support the expansion of rights’ and courts have been willing to engage with the HRC’s views as they would other courts’ judgments.Footnote ⁴⁷

The periodic reporting structure does not appear to have spurred UK lawmakers into action when it comes to the protection of the rights contained within the ICCPR. Klug, Starmer, and Weir assert that:

This scepticism has not met with any concerted action on the part of the UK’s executive or legislature, despite the HRC going so far as to question whether ‘the United Kingdom was in fact in a position to “ensure” that the Covenant’s provisions were given proper effect’.Footnote ⁴⁹ Whilst this situation may have developed to some extent since the HRC said this in 1984, the Committee has continued to raise concerns even after the UK legislated for the protection of some rights more formally in the UK via the Human Rights Act 1998 (HRA).Footnote ⁵⁰

Given the reticence of the UK to address in any depth its compliance with the ICCPR, and the lack of action to enhance compliance by means of domestic law, it is hard to point to any concrete difference made by the ICCPR to the protection of individual rights in the UK.Footnote ⁵¹ This lack of change brought about by the ICCPR within the UK is confirmed by an examination of the comments of the HRC in response to the UK’s periodic reporting which consistently highlight concerns.Footnote ⁵² McGoldrick and Parker suggest that the ICCPR has had some limited impact in the UK,Footnote ⁵³ but the idea that the ICCPR plays any great role is hard to square with the observations of the HRC, or with research by the author and that carried out some time ago by Klug, Starmer, and Weir.Footnote ⁵⁴ Even McGoldrick and Parker themselves went on to note that ‘the Covenant is yet to make a marked impact on the consciousness of the British public or on much of the government’.Footnote ⁵⁵

This general apathy towards the ICCPR in the UK is further demonstrated in the lack of reference to the treaty in domestic judgments. Thus, there were only six references in reported judgments in England and Wales which mentioned the ICCPR prior to the passage of the HRA.Footnote ⁵⁶ These six cases themselves, moreover, highlight the unwillingness of the courts to engage with the ICCPR in any depth, even when it is directly mentioned. Of the six, the case which addressed the ICCPR in the most detail related to section 133 of the Criminal Justice Act 1988.Footnote ⁵⁷ The rest did not engage with the ICCPR beyond an initial mention or observation,Footnote ⁵⁸ and one rejected outright the use of the ICCPR.Footnote ⁵⁹

The marked lack of engagement with the ICCPR by the UK courts prior to 1998 did not radically improve thereafter with the passage of the HRA and the creation of a greater culture of human rights literacy. In the years after 1998 the number of references to the ICCPR by the courts increased significantly. Nonetheless, these increased references did not generate any significant shift in the quality of the UK’s compliance with the ICCPR.Footnote ⁶⁰ Indeed, in the majority of cases, the ICCPR was only mentioned briefly and in passing and did not see the courts engaging in any depth with the protections offered. As Figure 14.1, below, shows, despite an increase in references by courts to the ICCPR there is no clear trend in use in the first twenty years after the HRA.

Figure 14.1 Number of cases per year in the higher courts of England and Wales making reference to the ICCPR.

An examination of the HRC’s two sets of concluding observations since 1998 provides examples of the areas of concern. The 2008 document noted twenty-three separate issues for concern in relation to the UK’s compliance with the ICCPR.Footnote ⁶¹ These included areas such as the detention without charge of terror suspects for extended periods under the Terrorism Act 2006,Footnote ⁶² the control order regime restricting individual liberties without due process under the Prevention of Terrorism Act 2005,Footnote ⁶³ and delayed access to lawyers for those detained under the Terrorism Act 2000.Footnote ⁶⁴ Such concerns, and the others listed, suggest that there are areas in which the protections afforded to individuals under UK law fall short of those offered by the ICCPR. This is despite the fact that the HRA translates the ECHR rights into UK law; the HRC has noted that a range of ‘Covenant rights are not included among the provisions of the [ECHR] which has [sic] been incorporated into the domestic legal order through the [HRA]’,Footnote ⁶⁵ meaning there can be no challenge under the HRA.

In 2015 the HRC again raised concerns about the UK’s compliance with the ICCPR. In its concluding observations the HRC elaborated further misgivings about the lack of direct applicability of the ICCPR in the UK.Footnote ⁶⁶ The HRC additionally noted concerns about ‘the lack of a comprehensive mechanism for reviewing existing gaps and inconsistencies between the domestic human rights legal framework and the rights as set forth in the Covenant’.Footnote ⁶⁷ The long list of other issues suggests that although concerns had shifted slightly from those of the previous reporting cycle, there remained serious reservations on the part of the HRC about the UK’s general level of compliance with its treaty obligations. Thus, for example, the HRC again highlighted counter-terrorism powers under the Terrorism Act 2000,Footnote ⁶⁸ the power to deprive persons of citizenship, potentially rendering those persons stateless,Footnote ⁶⁹ and the use of closed material procedures under the Justice and Security Act 2013 in civil cases where issues of national security are raised.Footnote ⁷⁰

These two sets of concluding observations serve to highlight the range of issues of concern to the HRC in respect of the UK’s compliance with the ICCPR. It is clear from the HRC’s observations that it believes that the current framework of legal protection for human rights is not sufficient to protect all those rights guaranteed under the ICCPR. As this chapter goes on to argue, this is at least partially attributable to the inability of those in the UK directly to approach the HRC by means of individual petition, combined with the lack of strong enforcement powers on the part of the HRC. It also serves to show that the UK’s self-assurance of compliance with the ICCPR is misplaced.

14.4 The European Convention on Human Rights

In common with the ICCPR, the UK had an important role in the development of the ECHR.Footnote ⁷¹ However, the UK’s motives may at times have been questionable; Bates asserts that the main driver for the UK’s entry into the ECHR system may have been ‘political, “face-saving” considerations’.Footnote ⁷² There was opposition in the UK to the idea of individual petition with concern that it ‘might be used as a weapon of political agitation’.Footnote ⁷³ Nevertheless, although sometimes fraught, the ECHR’s drafting process did not present the same levels of difficulty as had the ICCPR.Footnote ⁷⁴

The ECHR’s system of protection has developed over time.Footnote ⁷⁵ The early system of enforcement was complex and stemmed, at least in part, from the difficulties in securing agreement for the establishment of a judicial enforcement mechanism, to which various States, including the UK, had been opposed.Footnote ⁷⁶ Some felt that the ‘machinery set up for enforcing the [ECHR] should not be purely judicial but should be able and competent to give due weight to political as well as legal considerations’.Footnote ⁷⁷ However, as time went on, this system was overhauled, and the original process was replaced by Protocol 11 which substituted this approach to decision-making with a permanent European Court of Human Rights (ECtHR), with the new system taking effect on 1 November 1998.

The process has since been reformed again by Protocol 14 of 2004 which Bates summarises as aiming ‘to maximise economy of procedure at Strasbourg’.Footnote ⁷⁸ Judgments of the ECtHR do not provide detail on the action which member States must take to address violations, where these are found: such action is at the discretion of the member State itself.Footnote ⁷⁹ Where a case is ‘exceptional’ a reference may be made to the Grand Chamber of seventeen judges for judgment.Footnote ⁸⁰ A decision of the ECtHR is binding on member States.Footnote ⁸¹ Any judgment of the Grand Chamber is final, whilst other judgments become final where the parties indicate that they do not wish to refer the judgment to the Grand Chamber, where three months have elapsed since the judgment, or where the Grand Chamber rejects a request to refer the judgment.Footnote ⁸²

Article 46 of the ECHR, as amended by Protocol 14, charges the Committee of Ministers, a body comprised of the foreign ministers of each member State, with overseeing the enforcement of the ECtHR’s judgments. Under Protocol 14, the Committee of Ministers may now refer a member State to the ECtHR for non-compliance.Footnote ⁸³ In addition to the Committee of Ministers and the ECtHR, the Parliamentary Assembly of the Council of Europe also plays a role in enforcement; its recommendations, resolutions, and opinions inform the work of the Committee of Ministers.Footnote ⁸⁴ The ECtHR enjoys good levels of compliance with its judgments and the system as a whole has been described as ‘astoundingly successful’,Footnote ⁸⁵ suggesting that this mix of mandatory judicial oversight (the ECtHR) combined with political supervision (the Committee of Ministers) is highly effective. Indeed, as will be argued, the relative strength of the combination of mandatory judicial oversight and individual petition is closely linked with the UK’s high level of compliance with the ECHR.

14.5 The UK and the European Convention on Human Rights

Although the ICCPR has not resulted in any significant changes to the human rights landscape in the UK, the same is not true of the ECHR. Even before the ECHR was a part of the UK’s domestic law, Lord Bingham asserted that it had played a role in ‘the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law’.Footnote ⁸⁶ Examining these areas, it seems fair to assert that prior to the reception of the rights protected by the ECHR into UK law by way of the HRA, the ECHR’s impact was already significant. Summarising the use of international human rights treaties in England and Wales prior to the HRA, Hunt suggests that ‘During … the mid-1970s, domestic judges … not only [displayed] a willingness to interpret domestic law in the light of international human rights instruments, but often considered themselves under an obligation to do so.’Footnote ⁸⁷ However, as Hunt’s own analysis illustrates this willingness seems to have been almost exclusively focused on the ECHR.

Much of this development was driven by discourse between the UK courts and the ECtHR. The overall number of violations by the UK remained comparatively low during this period, but there was sufficient opportunity for the ECtHR to rule on matters of UK law, giving the UK courts the chance to engage with Strasbourg’s judgments to develop their own reasoning. The judgments of the ECtHR directly impacted the UK’s own relationship with the ECHR system. Thus, whilst Masterman notes that ‘to think that [ECtHR] jurisprudence could be followed or applied in the manner of precedents would be a mistake’,Footnote ⁸⁸ Beloff and Mountfield show that UK courts set some store by the ECtHR’s rulings when making decisions.Footnote ⁸⁹ For example, the UK courts relied directly on jurisprudence of the ECtHR in relation to freedom of expression.Footnote ⁹⁰ It is therefore evident that the domestic courts were willing to look to the work of the ECtHR as part of their decision-making process, suggesting that the courts saw the benefit of dialogue with the ECtHR for the protection of human rights in the UK. This dialogue would not have been possible without the right of individual petition; a right entirely absent in the case of the protections offered by the ICCPR.

The HRA and the translation of the ECHR rights into UK domestic law marked a significant shift in the protection of human rights in the UK. Arguably, the effectiveness, in both legal and political terms of the ECtHR in identifying breaches of individual rights in the UK was a major factor in the decision to move the primary responsibility for the protection of individual rights into the domestic sphere by enacting the HRA. Indeed, concern that traditional methods of human rights protection in the UK were ineffective was ‘reinforced by a perception that the European Court of Human Rights was finding the United Kingdom in violation of the [ECHR] with disquieting frequency’.Footnote ⁹¹

The nature of the ECHR’s enforcement system also appears to have been one of the reasons behind the decision to enact the HRA. The government of the day noted:

Since the HRA entered into force there have been increasingly few applications from the UK to the ECtHR and ‘the UK has among the lowest number of applications per year allocated for a decision. It also has a lower percentage of these applications declared admissible than most and loses proportionately fewer of the cases brought against it than most’.Footnote ⁹³

Whilst the biggest driver in the UK’s increased compliance in the last two decades is undoubtedly the HRA and its translation of the ECHR rights into domestic law, a number of points should be made. First, the fact that the courts of the UK are now required to view human rights questions through the lens of the rights protected by the ECHR means that there is increased opportunity for proceedings in the national courts to address complaints under the ECHR. This in turn also allows the national courts to develop their dialogue with the ECtHR.Footnote ⁹⁴ Thus, judgments of the ECtHR continue to play an important role in the protection of the Convention rights within the UK. Second, the political importance and power of enforceable judgments of the ECtHR should not be underestimated. As the row between the UK Parliament and the ECtHR on prisoner voting showed, it is very hard to face down the legal and political pressure of an adverse ruling by the Court even where political red lines have been drawn.Footnote ⁹⁵

It is clear, therefore, that the design of the enforcement mechanism of the ECHR plays an important role in the high level of compliance that the UK enjoys. The UK has developed its domestic human rights protections to reflect those envisaged under the ECHR, and the nature of the ECtHR’s judgments has allowed the domestic courts to engage with their counterparts in the ECtHR on questions of law. Moreover, the success of the ECHR system, coupled with the political impact of adverse judgments of the ECtHR, was a major factor in the decision to enact the HRA and bring the rights contained in the ECHR ‘home’ into UK domestic law.Footnote ⁹⁶

14.6 Analysis

As Heyns and Viljoen have noted, ‘The success or failure of any international human rights system should be evaluated in accordance with its impact on human rights practices on the domestic … level.’Footnote ⁹⁷ With this in mind, the wide gulf between the impact of ICCPR and ECHR in the UK suggests that the ECHR has been a much greater success.

Whilst the UK’s track record at the ECtHR has improved over the past decades, an improvement which has accelerated significantly since 1998, there was already a movement towards use of the ECHR in domestic courts long before this was envisaged by domestic law. In 1998 when the HRA translated ECHR rights into UK domestic law, UK judges were empowered more overtly to have regard to the dicta of the ECtHR in their own decision-making.Footnote ⁹⁸ More recently still, the UK’s Supreme Court has demonstrated its willingness to keep British jurisprudence pegged to the ECtHR’s interpretation of the ECHR,Footnote ⁹⁹ further highlighting the continuing relevance of the ECtHR as a point of reference for domestic courts. Commentators and judges have pointed to the relatively broad impact of the ECHR on a range of areas, including in ‘the interpretation of ambiguous statutory provisions, guiding the exercise of discretions [and] bearing on the development of the common law’.Footnote ¹⁰⁰

By contrast, the UK’s compliance with the ICCPR receives little attention from the UK courts or from Parliament and this has not dramatically improved over the course of the UK’s involvement with the treaty.Footnote ¹⁰¹ Whilst there may be a number of reasons at play for this vast disparity, given the ECtHR’s role in driving compliance with the ECHR it is impossible to underplay the importance of mandatory judicial oversight of treaty bodies in ensuring that States comply with their treaty obligations. As the majority of interaction between the UK and HRC takes place quietly by means of periodic reporting and concluding observations and receives little publicity, public awareness and ownership of the rights protected by the ICCPR are almost non-existent.Footnote ¹⁰² Moreover, the nature of periodic reports and concluding observations means that the UK courts are unlikely to engage with these in developing their own jurisprudence, preferring instead the surer ground offered by decisions of an international court.

Examining the UK experience, it seems fair to conclude that strong judicial or quasi-judicial compliance mechanisms are essential in ensuring the effectiveness of human rights treaties. However, it is acknowledged that this may deter States from becoming party to such conventions. Hathaway, drawing together empirical research on the effect of international human rights law, highlights the apparent trade-off between States’ participation in and the effectiveness of human rights treaties.Footnote ¹⁰³ States are more likely to participate in treaty systems with weaker compliance models. As Hathaway notes, ‘Where enforcement is stronger, all else being equal fewer countries should be expected to commit. However, those fewer adherents will be more likely to comply with the treaty than they would be if the treaty were less strongly enforced.’Footnote ¹⁰⁴

This raises an important question: are the gains of greater compliance significant enough to justify the loss of engagement? In ‘Do Human Rights Treaties Make a Difference?’ Hathaway presents some concerning findings in relation to States’ willingness to engage with human rights treaties: in some cases, membership of such treaty systems was shown to correlate with poorer performance in terms of compliance with the protected rights.Footnote ¹⁰⁵ This suggests that the dichotomy might be starker than first presented. On the one hand strong compliance systems provide protection for human rights but may discourage States from becoming party to a treaty because of the risks associated with breaching treaty obligations. However, on the other hand, weaker systems allow States cynically to tether themselves to such structures to gain from the wider political and economic benefits they may bring without raising human rights standards in any meaningful way.Footnote ¹⁰⁶ Simmons is rather more optimistic about the positive changes brought about by instruments, such as the ICCPR, believing that they can effectively empower domestic actors to bring about change.Footnote ¹⁰⁷ Nevertheless, she acknowledges that such treaties cannot ‘solve all problems’.Footnote ¹⁰⁸ Whilst there is not enough space to explore this in greater depth here, it is a question which merits further research, particularly in the context of increasing antagonism to global institutions, such as the UN.

In any event, the UK’s experience with the ICCPR and ECHR serves to underline the difference which a strong compliance mechanism (and a State’s active engagement) can make to the domestic effectiveness and relevance of a human rights treaty. Given the broad range of rights protected by the ICCPR, the lack of engagement with the ICCPR and its compliance machinery represents a missed opportunity for the further development of human rights in the UK. If the pattern witnessed here is mirrored with respect to other human rights instruments in the UK, as well as in other States more broadly, it should give pause for thought about the way in which human rights are protected, and what can be done to strengthen the oversight of these protections within existing frameworks.Footnote ¹⁰⁹

14.7 Conclusion

This chapter has illustrated the differing outcomes brought about by differing models of compliance mechanism in human rights treaties. Using the UK’s experience with the ECHR and ICCPR as a lens, it has argued that the former – characterised by a strong, judicial compliance mechanism – can be linked with better human rights outcomes. By contrast, the ICCPR, with its weaker, reporting-based compliance monitoring and opt-in right of individual petition, has not had the same impact.

Building on the UK experience it seems reasonable to conclude that strong compliance mechanisms in which all States parties are expected to participate are important in ensuring the effectiveness of human rights treaties. Whilst these findings relate to the UK, there is no reason to believe that the lessons learned in this context cannot be applied more widely to contribute to the debate on how human rights are best protected. A regime of human rights protection centred on strong compliance monitoring may deter States from becoming party to a human rights treaty, yet the benefits for individuals’ rights protection may be enough to outweigh this.

This chapter does not seek to argue that the vast advances in rights protection since 1945 have not dramatically improved the attainment of human rights. Rather, it aims to help to safeguard the gains achieved and to allow these to be further built upon to ensure that rights protection is strengthened, and that human rights courts and treaty bodies are in a better position to ensure that the rights they steward are respected, protected, and fulfilled.

15.1 Introduction

In the last two decades, the international community has increasingly turned its attention towards the phenomenon of trafficking in human beings. Since the adoption of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), as well as subsequent regional conventions,Footnote ¹ many States have progressively sought to align their domestic legislation with the standards required by international law. Although the majority of States have adopted legislation criminalising trafficking in human beings,Footnote ² and many have also passed legislation aimed at protecting trafficked persons, States’ compliance with international and domestic standards has often been questioned.

This chapter explores proceedings before judicial, quasi-judicial and specialised non-judicial bodiesFootnote ³ as determinants of advances in anti-trafficking efforts. In this context, ‘determinants’ are understood as factors shaping governments’ anti-trafficking efforts and influencing compliance with and implementation of international standards. This contribution outlines how the role of such proceedings is perceived by anti-trafficking stakeholders, and, critically, the various ways in which proceedings influence anti-trafficking efforts. Importantly, the chapter explores how proceedings before judicial, quasi-judicial and specialised non-judicial bodies interact with other determinants in influencing anti-trafficking efforts at the domestic level.

While there is significant analysis of States’ anti-trafficking efforts, it is necessary, in our view, to shift the focus of inquiry towards the determinants of anti-trafficking efforts in trying to understand why States adopt, or comply with, protective and progressive legislation to tackle human trafficking. While some determinants are readily identifiable (e.g., the presence of political will, the ratification of international instruments and pressure by monitoring mechanisms or external donors), others have not yet been sufficiently explored, such as the decisions of judicial, quasi-judicial and specialised non-judicial bodies. The complex, non-linear and often hidden interactions between different factors have equally not been adequately addressed. Decisions of international and regional courts and quasi-judicial bodies are relevant determinants of States’ anti-trafficking efforts, as identified by, inter alia, the Organization for Security and Co-operation in Europe (OSCE).Footnote ⁴

This chapter builds on existing literature on the role of regional courts in shaping changes in anti-trafficking action,Footnote ⁵ taking a step beyond the existing focus on judicial bodies and on the European Court of Human Rights (ECtHR) in particular. We have identified 19 individual communications to the United Nations Treaty Bodies,Footnote ⁶ 342 communications of the United Nations Special Rapporteur on Trafficking in Persons,Footnote ⁷ 12 judgments of the ECtHR,Footnote ⁸ and 2 judgments of the Inter-American Court of Human Rights (IACtHR)Footnote ⁹ that tackle issues related to the implementation of anti-trafficking legislation.Footnote ¹⁰ Deploying a comparative approach, this chapter evaluates four case studies (Argentina, Brazil, Cyprus and the United Kingdom) in order to assess the role of judicial, quasi-judicial and specialised non-judicial bodies, including supervisory bodies, in effecting change at the domestic level. The chapter draws on a large-scale research project exploring the determinants of anti-trafficking efforts globally.Footnote ¹¹ The project assesses the links and sequencing of specific factors that have yielded improved political will and capacity in national governments to address trafficking in persons and which have led to sustained and comprehensive anti-trafficking efforts. It explores findings from literature reviews, expert interviews, a global survey and a series of fourteen case studies (of which the above are four).

15.2 Decisions by Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies as Determinants of Anti-Trafficking Efforts

Research on human trafficking and anti-trafficking efforts highlights a broad range of factors which influence governments’ anti-trafficking responses. These encompass factors instrumental in, for example, bringing about compliance and implementation of international standards, as well as causing governments to improve, hinder or regress efforts. Determinants of anti-trafficking efforts do not work in isolation. However, there is no single framework or sequencing; rather, the processes through which anti-trafficking laws, policies and measures emerge and co-exist are particular, varied and, crucially, contextual and inter-dependent.

A number of determinants have been discussed in the literature over the last two decades, including political will, international standards and mechanisms, structural conditions, the role of civil society organisations and funding and resource allocation. Although literature may be lacking on the role of the jurisprudence of regional and international courts and bodies due to the limited number of cases in the past two decades, regional and international bodies as well as some scholars have highlighted how decisions by international courts, tribunals and quasi-judicial bodies can be a decisive factor in the implementation of international standards, and in influencing national anti-trafficking responses.Footnote ¹²

Crucially, decisions by domestic courts can trigger legislative change and oblige legislative compliance with international standards. For example, the general reports of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) identify specific domestic jurisprudence which has triggered legislative change and pushed governments to adopt the advised change. They highlight, inter alia, Hussein v Labour Court,Footnote ¹³ which triggered legislative changes in Ireland through the enactment of the Employment Permits (Amendment) Act 2014 on 27 July 2014, and NN v Secretary of State for the Home Department,Footnote ¹⁴ where a United Kingdom Home Office policy was found to be unlawful and incompatible with the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and which resulted in the introduction of a new process and guidance to assess the support needs of survivors beyond the previous exit timescales. More recently, and beyond the European context, in the case of LVCO v AG,Footnote ¹⁵ the Colombian Constitutional Court ordered structural measures to improve protection of trafficked persons at the national level, including: designing a protocol to identify trafficked persons; training public servants with functions related to human trafficking; and protecting the human rights of trafficked persons as soon as signs of trafficking are detected, independently of what occurs in criminal proceedings.

The OSCE has further noted that the reasoning and findings of domestic courts, for example, can be instrumental ‘to ensure consistency of judicial practice and correct understanding and interpretation of anti-trafficking legislation’.Footnote ¹⁶ Interpretation and clarifications by higher courts also play an important role, especially when they are binding on lower courts.Footnote ¹⁷ Such decisions also reinforce international legal obligations and encourage harmonisation and co-operation across different judicial interpretations.

With respect to the role of regional courts, an evaluation by Duffy found that courts reinforce ‘duties to prevent, regulate, investigate, cooperate, criminalize and punish’.Footnote ¹⁸ Her analysis focusses on decisions by the ECtHR, the African Commission on Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States, the Inter-American Commission on Human Rights (IACmHR) and the IACtHR. According to Duffy, these decisions can shed light on the shortfalls of legal frameworks and State policies, and they can be instrumental in clarifying and underlining States’ positive obligations.Footnote ¹⁹ Duffy highlights four key examples:

The sustained impact of strategic litigation before regional courts is further explored by Milano, with specific reference to the ECtHR. Milano recognises the influence of the ECtHR’s landmark case Rantsev v Cyprus and Russia, Footnote ²¹ although she is critical of the Court’s ruling in LE v Greece, Footnote ²² which, she argues, failed to meet the expectations set out in Rantsev and therefore represents a regression.Footnote ²³

The role of decisions of regional courts has also been highlighted in a series of expert interviews conducted as part of the research that informed this chapter. A member of the secretariat of the ECAT emphasised how the ECtHR has triggered positive changes through the judgments of, inter alia, Rantsev v Cyprus and Russia,Footnote ²⁴ Chowdury and others v GreeceFootnote ²⁵ and Siliadin v France,Footnote ²⁶ causing changes in national laws and the adoption of action plans.Footnote ²⁷ The same reasoning could be applied in the future to the more recent cases of VCL and AN v the United KingdomFootnote ²⁸ and Zoletic and others v Azerbaijan.Footnote ²⁹ Other participants in the research project also noted that judicial reviews have the potential to trigger direct change in obliging the enforcement of international or regional legal obligations.Footnote ³⁰ A similar observation was made with respect to strategic litigation, which interviewees argued can be an influential tool in creating legal and policy changes.Footnote ³¹ With regards to the influence of UN Special Procedures, including UN Special Rapporteurs, the system of country visits and subsequent reports and recommendations have been deemed influential when rapporteurs focus on a specific policy area. Governments are responsive because country visits take place in the context of broader discussions and engagements about legislative change and improvements. Concerns of reputation and international relations are at play, but what is important to enable such influence is trust and dialogue. While there is minimal influence from governments who do not engage and co-operate with country visits, where there is a dialogue and a receptiveness to visits, changes are likely to follow.Footnote ³²

More broadly, judicial and quasi-judicial decisions can be decisive in identifying gaps in national legislation and outlining where the law needs to be improved.Footnote ³³ However, the impact of litigation, and more broadly of decisions, depends on whether there is a system of precedent, or whether or not such decisions are binding. It has been noted, for example, that in Southeast Asia, court decisions are rarely written, published or translated, reducing the influence that precedent-setting may have in the region (even if influential within the specific country).Footnote ³⁴ A similar issue was raised in the context of our research in Guyana.Footnote ³⁵ In addition, integral to the influence of judicial and quasi-judicial decisions are judges’, or more broadly, decision-makers’, own understanding and awareness of trafficking in persons and anti-trafficking law.Footnote ³⁶ Examples have emerged of judges having a lack of awareness and understanding of how international legal instruments ratified by their country apply,Footnote ³⁷ as well as a lack of understanding around specific provisions (with the non-punishment principle being a key example).Footnote ³⁸ Moreover, sight should not be lost of the fact that social and cultural contexts may influence judges and decision-makers. For example, it has been suggested that in Brazil judges and decision-makers do not always see ‘the gravity of the situation’ because of an underlying and embedded ‘culture of exploitation’,Footnote ³⁹ a reality that would seem to normalise certain behaviours that fall within the scope of the trafficking definition. These socio-cultural contextual factors, alongside the limits to judges’ understandings and the difficulties of ensuring victim co-operation in prosecutions, limit the impact of courts and judges.Footnote ⁴⁰

Indeed, judicial and quasi-judicial decisions do not operate in a vacuum; their influence is determined by several other factors beyond understanding of the law and social and cultural contexts. Other determinant factors identified are, for example, a State’s political situation and political will to act in the aftermath of a judicial or quasi-judicial decision.Footnote ⁴¹ For example, it has been noted that the rule of law in the United Kingdom facilitates a role for court decisions, which are often based on the ECAT, in enforcing regional obligations domestically.Footnote ⁴² In contrast, in Moldova and Cambodia (amongst other countries), it has been noted that the courts have minimal impact due to corruption, thus limiting their ability to trigger policy or legislative change.Footnote ⁴³

Against this background, however, it is relevant to note that the impact of judicial and quasi-judicial decisions, as well as of specialised non-judicial bodies’ observations, can be amplified when decisions are used as levers and accountability tools by, inter alia, civil society and the media. This is demonstrated, for example, by the cases of fishermen from Indonesia being trafficked to New Zealand on Korean boats where ‘fishing companies were bringing these migrant labourers into New Zealand under a very specific provision of the Fisheries Act’.Footnote ⁴⁴ International Law Aid and the International Transport Workers’ Federation, as well as other non-governmental organisations (NGOs), joined forces in pressuring the New Zealand Government to change specific provisions of the Fisheries Act 1996 – pressure that resulted in a ministerial inquiry. In parallel, the Supreme Court in New Zealand also heard cases in relation to wage claims. Together, these factors brought about significant changes in practice.Footnote ⁴⁵

15.3 The Role of Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies in Argentina, Brazil, Cyprus and the United Kingdom

For the purpose of this chapter, we have selected four case studies (Argentina, Brazil, Cyprus and the United Kingdom) from amongst the fourteen undertaken as part of the broader project on determinants of anti-trafficking efforts.Footnote ⁴⁶ These four were selected because they represent different levels of engagement of judicial, quasi-judicial and specialised non-judicial bodies across two distinct geographical areas. These are four exploratory, or hypothesis-generating, case studies, selected according to three baseline criteria: the presence of engagement of judicial, quasi-judicial or specialised non-judicial bodies; the availability of proof of such engagement; and the presence of different qualitative levels of engagement of such bodies.Footnote ⁴⁷

15.4 Conclusion

In all four case studies, decisions of judicial bodies – either domestic or regional – have played a significant role in advancing anti-trafficking efforts and protecting trafficked persons’ rights. The jurisprudence of regional human rights courts has influenced both government actions and domestic courts’ interpretation of anti-trafficking law, as well as human rights law provisions relevant to anti-trafficking efforts. They have resulted in the introduction of new measures, the withdrawal of existing measures and more human rights-conformant interpretations of existing legislation. Quasi-judicial human rights bodies, including the UN Treaty Bodies, are not yet consistently engaged in human trafficking cases and – in their non-judicial role, do not consistently engage with anti-trafficking concerns during periodic reviews. Yet the potential of their impact on the improvement of anti-trafficking efforts should not be ignored. Indeed, quasi-judicial bodies can be viewed as contributors to international lawmaking – influencing the interpretation, clarification and refinement of State duties and responsibilities.Footnote ¹¹⁴ While courts and quasi-judicial human rights bodies tend, by their very nature, to be reactive in nature, and the burden of initiating proceedings remains with individuals whose rights have been violated, specialised non-judicial bodies, including UN Special Procedures and Treaty Bodies in their reporting function, are, and can be, more proactive in nature. The engagement of the UN Special Rapporteurs, both in terms of country visits and thematic reports as well as through letters, has increased sharply in recent years. While responses from governments to communications of Special Rapporteurs might be circumstantial and may be labelled ‘empty promises’, our research has shown that the engagement that governments need to show – and for which they could be held accountable, at least in terms of international reputation – is a meaningful element in the development of anti-trafficking efforts.Footnote ¹¹⁵

The analysis of decisions and observations in different contexts has shown the inter-dependence of judicial, quasi-judicial and specialised non-judicial bodies, which rely on each other – insofar as interpretation and standards are concerned – to safeguard the rights of trafficked persons and steer governments to comply with their international, regional and domestic obligations. It has also shown that the variety in the type of external pressure applied – for example, binding judgments and ‘soft’ pressure – can be used strategically to promote change and to ensure that change is sustainable. Because determinants of anti-trafficking efforts, understood as the factors shaping government responses, do not work in isolation, but rather are part of a broader process, it would be wrong to assume that decisions and observations of judicial, quasi-judicial and specialised non-judicial bodies can in isolation yield the improved political will and capacity in national governments to address trafficking in persons. Yet, as demonstrated by the cases of Argentina, Brazil, the RoC and the United Kingdom, they are external points of pressure which can contribute to positive change.

16.1 Introduction

This chapter evaluates the strengths and weaknesses of UN human rights treaty bodies (HRTB) in ensuring compliance with States’ international environmental legal obligations and in resolving environmental disputes. The chapter begins with a discussion of the evolution of the “environmentalization” of international human rights law and goes on to analyze the standard functions of the HRTB as human rights treaty compliance mechanisms. Against this backdrop, the chapter considers HRTBs’ contribution to ensuring compliance with States’ climate-related human rights obligations, as a new trend in the greening of international human rights law and an area in which HRTB are now at the forefront of international compliance procedures. The chapter analyses HRTBs’ concluding observations, general comments, and statements and specific cases dealt with by the Human Rights CommitteeFootnote ¹ and the Committee on the Rights of the Child.Footnote ² HRTBs’ contribution to helping bring about States’ compliance with international environmental legal obligations is then compared with other means of dispute resolution and compliance procedures, primarily non-compliance procedures under Multilateral Environmental Agreement (MEAs), demonstrating the positive aspects of the HRTB (the presence of a follow-up procedure, the coverage of a large number of States parties, the absence of the need to approve the decision by the Conference of the Parties), and the negative ones (the lack of legal force for the decisions).

16.2 The Greening of Human Rights

Looking at the HRTB is important for a number of reasons. These include the absence of an International Environmental Court.Footnote ³ International courts’ practice in environmental disputes is still in a state of evolution (for example, the unreasonably low level of compensation for environmental damage in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua));Footnote ⁴ the procedural limitations of courts (for example, individuals cannot file a claim with the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS)); the lack of effective enforcement mechanisms (Japan did not comply with the ICJ’s decision on Whaling in the AntarcticFootnote ⁵ and subsequently withdrew from the International Convention for the Regulation of Whaling);Footnote ⁶ and the limited practice of regional human rights courts (including in Asia, where more than 4.5 billion people do not have a regional court or human rights commission that would accept complaints from individuals or NGOs).Footnote ⁷ It should be clarified that, in general, regional human rights courts (the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights) contribute to the resolution of environmental disputes. For the purposes of this chapter, I mention their practices (especially since there are currently several cases pending before the European Court of Human Rights (ECtHR)), but I do not analyze them in detail, as they do not relate to HRTB and require separate in-depth scientific research. For all these reasons, it may be helpful to evaluate the extent to which HRTB can help address compliance with international environmental law. Human rights treaty bodies offer certain mechanisms for monitoring the implementation of the main international human rights treaties, which are widely ratified.Footnote ⁸

Increasingly, human rights are linked to environmental protection and the issue of combating climate change.Footnote ⁹ Historically, this evolved in the following way. At the 1992 Conference on Environment and Development in Rio de Janeiro,Footnote ¹⁰ the world community recognized the problems of environmental harm. The following year, the Vienna Conference on Human Rights was held, following which the UN General Assembly established the Office of the UN High Commissioner for Human Rights. However, to the great regret of environmental lawyers, the Vienna Declaration and Plan of ActionFootnote ¹¹ had only one paragraph devoted to the protection of human rights in the context of environmental protection, and only in the narrow sense in relation to dumping of toxic and dangerous products and waste: “The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. The World Conference on Human Rights recognizes that illicit dumping of toxic and dangerous substances and waste potentially constitutes a serious threat to the human rights to life and health of everyone … .”Footnote ¹²

In the almost thirty years since, a great deal has changed in this area, both at the universal and regional level of human rights protection. In recent years, a number of events have taken place in the field of environmental protection through the human rights system: two important HRC resolutionsFootnote ¹³ and a draft additional protocol to the European Convention on Human Rights (ECHR) on the right to a healthy environmentFootnote ¹⁴ were adopted, the 2018 Regional Agreement on Access to Information, Participation and Justice in Environmental Matters in Latin America and the Caribbean (the Escazú Agreement)Footnote ¹⁵ was adopted and entered into force in 2021; the UN Committee on the Rights of the Child in June 2021 launched discussion on the preparation of the General Comment on Children’s Rights and the Environment with Special Focus on Climate Change;Footnote ¹⁶ and in September 2019 the HRTBs issued a joint statement on human rights and climate change.Footnote ¹⁷ And finally, for the first time in the history of the UN, the UN General Assembly in its Resolution 76/300 of 28 July 2022, recognized the human right to a clean, healthy, and sustainable environment.Footnote ¹⁸ The General Assembly affirmed that the promotion of the human right to a clean, healthy, and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law. It also recognized that the exercise of human rights, including the rights to seek, receive, and impart information, to participate effectively in the conduct of government and public affairs, and to an effective remedy, is vital to the protection of a clean, healthy, and sustainable environment.

On the one hand, international human rights law provides a limited approach to protecting the environment. By and large, the purpose of this branch of international law is to protect a particular person (or group of persons), whereas in international environmental law the goal is to protect the environment as a common good.Footnote ¹⁹ On the other hand, the cumulative effect in synergy with other international mechanisms may help to protect the environment as a whole. The environmental developments in international human rights law addressed earlier will greatly enhance this cumulative effect. These developments will mean that HRTBs play an increasingly important role in helping bring about compliance with international environmental law.

16.3 Human Rights Treaty Bodies as Compliance Bodies

Human rights treaty bodies, as examples of compliance procedures, are an opportunity to issue policy-relevant recommendations addressing specifically the shortcomings of governments’ environmental or climate policies from a human rights perspective.

It is important to keep in mind that human rights law at the international level has a wide range of protection and enforcement instruments that can be used to protect environmental human rights: HRTB, Universal Periodic Reports (UPR), Human Rights Council, Special Procedures. In this chapter, I will study the role of HRTB. When I talk about HRTB as compliance mechanisms, I should think systematically and understand that there are various forms of their activity.

Human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. As of now, ten treaty bodies have been established: the Committee on the Elimination of Racial Discrimination (CERD);Footnote ²⁰ the Committee on Economic, Social and Cultural Rights (CESCR);Footnote ²¹ the Human Rights Committee (CCPR);Footnote ²² the Committee on the Elimination of Discrimination against Women (CEDAW);Footnote ²³ the Committee against Torture (CAT);Footnote ²⁴ the Committee on the Rights of the Child (CRC);Footnote ²⁵ the Committee on Migrant Workers (CMW);Footnote ²⁶ the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT);Footnote ²⁷ the Committee on the Rights of Persons with Disabilities (CRPD);Footnote ²⁸ and the Committee on Enforced Disappearances (CED).Footnote ²⁹

It is important to emphasize that the uniqueness lies in the fact that not a single international treaty under which HRTB were established contains provisions aimed at protecting the environment. Therefore, all environmental issues are derived through a broad interpretation of the texts of international treaties. The only exception is the 1980 Convention on the Rights of the Child, where Article 24(2(c)) states that:

The treaty bodies perform a number of functions aimed at monitoring how the treaties are being implemented by their State parties. All treaty bodies, with the exception of the Subcommittee on Prevention of Torture, are mandated to receive and consider periodic reports submitted by State parties detailing how they are applying the treaty provisions nationally. The examination of a report culminates in the adoption of “concluding observations” intended to give the reporting State practical advice and encouragement on further steps to implement the rights contained in the treaty. In its concluding observations, a treaty body will acknowledge the positive steps taken by the State, but also identify areas of concern, where more needs to be done to give full effect to the treaty’s provisions. The treaty bodies seek to make their recommendations as concrete and practicable as possible. In addition, each of the treaty bodies publishes its interpretation of the provisions of its respective human rights treaty in the form of “general comments” or “general recommendations.” These cover a wide range of subjects, from the comprehensive interpretation of substantive provisions (the right to water or the right to adequate food), to general guidance on the information that should be submitted in State reports relating to specific articles of the treaties. Most treaty bodies may consider complaints or communications from individuals (or group of individuals, or entity) alleging that their rights have been violated by a State party, provided that State has opted into this procedure. Human rights treaty bodies may also consider interstate complaints and their views or decisions. Although these procedures are “quasi-judicial,” the decisions cannot be enforced directly by the committees. In many cases, however, State parties have implemented the committees’ recommendations and granted a remedy to the complainants. Some HRTB may also conduct inquiries if they receive reliable information containing well-founded indications of serious, grave, or systematic violations of the conventions in a State party.Footnote ³¹

Moreover, if the State does not comply with the recommendations, it will be reminded of this as part of the follow-up. It is worth emphasizing separately that the follow-up procedure is extremely important for compliance in the field of international environmental law. Environmental disputes are predominantly of a continuing nature, and it is important to monitor the extent to which the measures taken by the State helped to correct the situation and establish the possibility of taking more precise appropriate measures to resolve the environmental dispute. Thus, follow-up makes it possible to resolve environmental disputes in a continuous process of dialogue. This is something that is often lacking in international courts and is also missing under MEA non-compliance procedures. All HRTB request State parties to provide information in their periodic reports on the implementation of the recommendations contained in previous concluding observations. It is important to note that all available sources of information (other HRTB, Special Procedures, the Universal Periodic Review, the United Nations system, regional human rights mechanisms, national human rights institutions (NHRIs), and NGOs) are considered for the follow-up assessment of a State party. It is a very open and transparent procedure. It should be noted that the details and timing of the follow-up procedure vary from committee to committee.Footnote ³² Follow-up covers individual communications: (1) compliance (measures taken are satisfactory or largely satisfactory); (2) partial compliance (measures taken are partially satisfactory, but additional information or action is required); (3) non-compliance (reply received but measures taken are not satisfactory or do not implement the views or are irrelevant to the views); (4) no reply (no cooperation or no reply received). Moreover, as previously noted, the UN has a whole system of human rights bodies, and the implementation of concluding observations and HRTB opinions can also be called upon through the UPR procedure, which is an additional compliance control mechanism.

There are many examples of environmental issues under the national reports/concluding observations procedure. For example, CESCR recommended that Argentina

Or in 2020 the Committee recommended Norway

For example, in its concluding observations, the Human Rights Committee recommended Cabo Verde

Quasi-judicial functions are manifested at the time of consideration of complaints (individual, collective, interstate). If earlier HRTB considered complaints in the format of an individual/group of individuals against the State, recently there has been an increase in interstate complaints. In the fifty-year history of the treaty bodies, only three interstate or State-to-State complaints have been registered (admissibility accepted on its merits) by the treaty bodies, all of them in 2018 by the CERD.Footnote ³⁶ As a comparison, interstate complaints under MEA non-compliance procedures are also rare. But it is important to understand that this is generally possible in conditions where the jurisdiction of international courts is very limited.

There were several decisions on environmental complaints in HRTB. Unfortunately, few studies are available on the analysis of these decisions.Footnote ³⁷ For example, in 2013, the UN Independent Expert on Human Rights and the Environment, John Knox, prepared reports on the protection of environmental rights in five HRTB: CESCR, HRC, CERD, CEDAW, and CRC.Footnote ³⁸ This chapter will highlight four recent HRTB decisions: three on climate (very interesting legal provisions were presented that might be cited by other international courts in the futureFootnote ³⁹), and one on pesticides – a positive outcome with a wide range of measures.

The Human Rights Committee in 2019 issued an opinion in the case of the use of agrochemicals and pesticides (Portillo Cáceres et al. v Paraguay, 2019).Footnote ⁴⁰ A farming family in Paraguay petitioned the HRC claiming the mass use of agrotoxins by nearby large agrobusinesses had poisoned many local residents and led to the death of their relative, Ruben Portillo Cáceres. The HRC found violations of the family members’ rights to life; to privacy, family, and home; and to an effective remedy, noting that the State had failed to adequately enforce environmental regulations and did not properly redress the resulting harms. In connection with this decision, important strategic questions arise in the context of comparison with other international legal compliance procedures: (1) in what other international body can the collective environmental rights of people be protected; (2) what other international body can deal with banned pesticides (non-compliance procedures under Article 17 of the Stockholm Convention concerned only interstate cases); and (3) in what other international body can such an effective remedy be obtained systemically?Footnote ⁴¹

It should also be emphasized here that HRTB are more independent than non-compliance procedures under MEAs, since there is no need to wait for the final approval of all decisions by the Meetings of State Parties of the human rights treaty (while decisions adopted by the non-compliance committees under some MEAs should be approved within the CoP/MoP, for example under the Aarhus Convention).Footnote ⁴²

It should be noted that sometimes HRTB are at the forefront of developing environmental human rights among various international courts and compliance procedures. It may be noted that the CESCR recognized the right to water (under the International Covenant on Economic, Social and Cultural Rights) in 2002 (General Comment No 15).Footnote ⁴³ And since that time, the Committee has had the opportunity to ask States about the protection of the right to water in the framework of periodic reports. Only in 2010, after eight years, did the United Nations General Assembly (UNGA) vote to adopt Resolution A/64/292, formally recognizing “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” As human rights have expanded in scope and influence, the UNGA’s 2010 Resolution has proclaimed international political recognition of this distinct right.

HRTB have become active in the field of combating climate change. They request relevant information from States when considering periodic reports (for example, information related to what measures States are taking to protect rights affected by climate change), and if they are not satisfied with the information provided, they make relevant concluding observations (some examples have already been mentioned). In addition, HRTB approve special statements: (1) In October 2018, the CESCR adopted a statement on “Climate Change and the International Covenant on Economic, Social and Cultural Rights”;Footnote ⁴⁴ (2) In September 2019, the five HRTB (CEDAW, CESCR, CMW, CRC, and CRPD) issued a joint statement on human rights and climate change.Footnote ⁴⁵

The field of action against climate change is also expanded by interpreting the legal content of human rights in general comments. Regarding the last point, it should be noted that four HRTB have already done this:

• the CESCR: General Comment No 15 (2002) on the Right to Water (Articles 11 and 12 of the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR, Covenant));Footnote ⁴⁶

• the CRC: General Comment No 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Article 24 of the Covenant),Footnote ⁴⁷ and in June 2021 work was launched on a General Comment on Children’s Rights and the Environment with Special Focus on Climate Change;Footnote ⁴⁸

• CEDAW: General Recommendation No 37 (2018) on Gender-related Dimensions of Disaster Risk Reduction in the Context of Climate Change;Footnote ⁴⁹

• HRC: General Comment No 36 (2018) on Article 6 of the ICCPR on the right to life.Footnote ⁵⁰

In this way, the treaty bodies have paved the way for concrete decisions on complaints of human rights violations due to State action/omission. Particularly relevant is the HRC General Comment No 36 on Article 6 of the ICCPR on the right to life. Attention should be paid to paragraph 62 of the document (“Relationship of Article 6 with Other Articles of the Covenant and Other Legal Regimes”), which directly links “obligations to respect and ensure the right to life” and “measures taken by States parties to preserve the environment and protect it against climate change.”Footnote ⁵¹

As a comparison with other international compliance procedures, it should be noted that the creation of such documents as general comments is very effective and useful, since it allows the generalization of extensive practice and the acceptance of a legitimate document with official interpretation. Such documents could be accepted as part of the non-compliance procedure under MEAs.

16.4 Climate Complaints in HRTB

Recently, the number of “climate” claims around the world has been growing and HRTB are no exception. It is important to note three very high-profile cases in this section. The ECtHR is also considering complaints, but has not yet ruled on climate complaints,Footnote ⁵² the Inter-American Commission on Human Rights has rejected a climate case,Footnote ⁵³ but the Inter-American Court on Human Rights (IACtHR) mentions this problem in their Advisory Opinion OC-23/17.Footnote ⁵⁴ On 12 December 2022, the ITLOS received a request from the Commission of Small Island States on Climate Change and International Law to render an advisory opinion.Footnote ⁵⁵ Therefore, legal judgments and arguments are extremely valuable.

Important to note is the world’s first international decision on climate refugees (Ioane Teitiota v New Zealand, 2020) by the Human Rights Committee.Footnote ⁵⁶ The UN Human Rights Committee considered the “climate” claim and, refusing a specific applicant, generally recognized that, based on the non-refoulement principles and subject to a number of criteria, “climate” refugees have the right not to be sent to a country where climate change leads to such disastrous consequences that a violation of the right to life can be claimed. In this case, in the opinion of the Committee, there was no life-threatening situation for the Teitiota; also because the relevant protective measures had already been taken in the Republic of Kiribati (2007 National Adaptation Programme of Action under the United Nations Framework Convention on Climate Change (UNFCCC)). It turns out that the fight against climate change is a State problem and carries a threat to the entire population. However, it is extremely difficult to prove an individual threat, so most of the “climate” claims are of a collective nature. However, the HRC did not rule out that such a situation might arise in the future. The case of Ioane Teitiota v New Zealand has become a milestone in the development of the practice of the HRC. Thus, a new interpretation of the “real risk of irreparable harm” was given; the connection between civil rights and economic and social rights was shown within the framework of a broad interpretation of the right to life; and the “climate” component of the right to life was demonstrated in practice. Now new standards have been set that may, in the future, contribute to the favorable outcome of other climate change refugee claims. Moreover, the Committee emphasized the need for the support of countries suffering from the effects of climate change by the international community. Thus, it was recorded that the obligations for cooperation in the field of counteracting the negative effects of climate change are erga omnes. If decisive action is not taken at both the international and national levels, entire States may disappear under water. In this case, the threat to life will become obvious, and the host States will no longer be able to deport those who request refugee status.Footnote ⁵⁷

An important difference between HRTB and many non-compliance procedures is the fact that the decisions are not always adopted by consensus, and it is possible to find separate opinions. In Ioane Teitiota v New Zealand, two experts were against (Duncan Laki Muhumuza and Vasilka Sancin) and added their individual opinions by Committee members.

A second case concerns Children’s Rights and Climate Change at the UN CRC. I note the Communication to the CRC concerning climate change (16 children (including G Thunberg) v Argentina, Brazil, France, Germany, Turkey, 2019). On 11 October 2021, the CRC published its decisions on the admissibility of complaints brought against five States – Argentina, Brazil, France, Germany, and Turkey – by the 16 child complainants under the Optional Protocol to the Convention on the Rights of the Child on a Complaints Procedure (OPIC). The Committee ultimately declared the complaints inadmissible due to non-exhaustion of domestic remedies. However, in doing so, the Committee found that a State party can be held responsible for the negative impact of its greenhouse gas emissions on the rights of children both within and outside its territory. With regard to extraterritorial jurisdiction, the CRC endorsed the abovementioned IACtHR Advisory Opinion OC-23/17, which clarified in paragraph 101 the scope of extraterritorial jurisdiction concerning environmental protection. As stated by I Gubbay and C Wenzler, to establish extraterritorial jurisdiction, the CRC had to consider (i) the interpretation of “control,” and (ii) the significance of directness and foreseeability.Footnote ⁵⁸ Under the effective control test, the State in whose territory or under whose jurisdiction the activities are carried out has effective control over them, as well as the ability to prevent transboundary harm. Potential victims of the adverse effects of a State’s actions are under the jurisdiction of that State regarding its potential responsibility for failing to avoid transboundary damage. Further, under the causal nexus test, when a State’s act or omission is sufficiently connected to the violation, the person suffering the violation is considered to be within the State’s jurisdiction. Following the IACtHR’s reasoning, then, the CRC found that every State must address climate harm outside its territory and is liable for the negative impact of its emissions on the rights of children located both within and outside its territory.Footnote ⁵⁹

The decision significantly advances international human rights law understanding of the scope of State obligations in the context of climate change – both in terms of the content of such duties and their jurisdictional application. Although greeted with understandable dismay by some climate activists, the decision is a convincingly reasoned rejection – and one that leaves the door firmly open to future child rights climate justice complaints, while according appropriate respect to domestic processes.Footnote ⁶⁰ In June 2021, the CRC decided to draft a General Comment on children’s rights and the environment with a particular focus on climate change, thus signaling the potential of human rights litigation to contribute to normative development beyond a specific case.

The third climate case, Daniel Billy and others v Australia (Torres Strait Islanders Petition, 2022)Footnote ⁶¹ is the latest in HRTB practice. The Communication was brought by eight indigenous residents of the Torres Strait Islands and some of their children to the HRC. This is so far the only decision where an international human rights body has found that a State’s failure to protect people from the effects of climate change can amount to a violation of international human rights law.

In the decision, the HRC has found that Australia’s failure to adequately protect indigenous Torres Islanders against the adverse effects of climate change violated their rights to enjoy their culture (Article 27 of the Covenant) and be free from arbitrary interferences with their private life, family, and home (Article 17 of the Covenant). Australia failed to adapt to climate change by, inter alia, upgrading seawalls on the islands and reducing greenhouse gas emissions.

However, in this case, it cannot be argued that Australia has been inactive in the fight against climate change. The HRC indicated that despite Australia’s series of actions, such as the construction of new seawalls on the four islands that are expected to be completed by 2023, additional timely and appropriate measures were required to avert a risk to the Islanders’ lives, since without robust national and international efforts, the effects of climate change may expose individuals to a violation of their right to life under the Covenant. This is an important conclusion-warning of the Committee for States that believe that it is possible to limit themselves to minimal actions in order to combat climate change.

As remedies, the HRC asked Australia to compensate the Indigenous Islanders for the harm suffered, engage in meaningful consultations with their communities to assess their needs, and take measures to continue to secure the communities’ safe existence on their respective islands. This is one of the interesting points of the decision: how to calculate and make “adequate compensation, to the authors for the harm that they have suffered?”Footnote ⁶² How that harm will be calculated is yet unknown, not only in this decision, but in general in international climate law. The Committee left this up to Australia who has to report to the Committee on the implementation within 180 days, so there will be opportunity to analyze the further actions of the Committee at a later date.

It may also be noted that in this decision, as in the previous Ioane Teitiota v New Zealand the Committee ultimately dismissed the plaintiffs’ claim of a violation of their right to a decent life, finding that they “did not indicate that they have experienced or are currently experiencing adverse health outcomes or a real and reasonably foreseeable risk of being physically threatened” or extreme danger likely to threaten their right to life, including their right to a life in dignity and that strong national and international effortsFootnote ⁶³ can prevent harm that would constitute a violation of Article 6 of the Covenant. Although it was a loss for the plaintiffs in this case, it has become a roadmap for future climate cases.

Moreover, as per Voigt, “there is, however, one major shortcoming of the decision: The Committee remained silent on the need for timely and adequate mitigation measures as the ‘backside of the coin’ to fulfill its positive obligation towards the applicants. This is a lost opportunity.”Footnote ⁶⁴

Overall, the HRC has created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable to the negative impact of climate change on the enjoyment of their human rights.

Thus, based on the method of legal forecasting, it can be said that the number of climate complaints to the HRC will grow in the near future, especially considering that 117 States of the world have recognized its jurisdiction to consider individual complaints.Footnote ⁶⁵

16.5 Legitimacy and Citation of Decisions

All documents adopted by HRTB are soft law and are not legally binding. This has its pros and cons. However, the general comments and decisions of the HRTB are actively used in national legal systems.Footnote ⁶⁶ Of course, not in all States and not in all cases, but this practice is quite common.

An important issue is that of the unification of common approaches among international courts, regional courts of human rights, and quasi-judicial bodies (mainly non-compliance procedures based on MEAs and HRTB) in terms of protecting environmental human rights. The analysis shows that HRTB in their environmental decisions repeatedly cited the decisions of the ECtHR, the African Commission on Human and Peoples’ Rights and the Inter-American Court of Human Rights. For example, in Ioane Teitiota v New Zealand, HRC noted “that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life”Footnote ⁶⁷ and cited in support the practice of European, inter-American and African human rights systems.Footnote ⁶⁸

In Portillo Cáceres, HRC stated that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely” (paragraph 3.7) and relying upon the practice of the ECHR.Footnote ⁶⁹ Also, as in the previous case, in substantiating the fact that severe environmental degradation has given rise to findings of a violation of the right to life (paragraph 7.4), HRC referred to the relevant practice of regional human rights courts. Also in evidence is that “adverse consequences of … pollution are serious because of its intensity or duration and the physical or mental harm that it does, then the degradation of the environment may adversely affect the well-being of individuals and constitute violations of private and family life and the home” (paragraph 7.8). In this, the HRC referred to the practice of the ECHR.Footnote ⁷⁰

Additionally, the ICJ has on occasion directly considered treaty body practice (Wall opinion in 2004, the Diallo case, the Belgium v Senegal (or Hissene Habre) case, Georgia v Russia, and the IFAD case).Footnote ⁷¹ Moreover, the ICJ directly stated:

The Inter-American Court of Human Rights, in its Advisory Opinion on Environmental Human Rights,Footnote ⁷³ referred to CESCR documents, but not to decisions – only to general comments and concluding observationsFootnote ⁷⁴ – as well as to HRC decisions in the context of proving the existence of extraterritorial human rights obligations.Footnote ⁷⁵

Based on the method of legal forecasting, one can fairly confidently assume that the ECHR will soon quote HRTB. The HRC and CRC are the first international bodies in the world to recognize jurisdiction and adjudicate climate claims (Ioane Teitiota v New Zealand and five CRC claims, respectively). As noted above, HRTB denied the plaintiffs, but the rulings contained extremely important legal positions that will be useful to the ECHR, where five cases are already pending.Footnote ⁷⁶ And rather than reinventing the wheel, one can rely on these legal positions of HRTB and thereby confirm their legitimacy in resolving climate disputes.

16.6 Conclusion

In general, over the years of their existence, HRTB have established themselves as an important legitimate and effective link in the resolution of international environmental disputes and as compliance “guardians.” However, it should be underlined that HRTB do not actually ensure compliance with environmental obligations, but with human rights treaties, which are increasingly interpreted in the light of environmental obligations. What advantages do HRTB have in comparison with international courts? Human rights treaty bodies have developed a large regulatory framework for the consideration of environmental disputes (including special statements, general comments, and previous opinions). An analysis of decisions shows that HRTB has a wide range of remedies. It is important that the committees themselves monitor the execution of decisions based on the follow-up procedure and the request for information from States during the dialogue process when considering periodic reports; moreover, within the framework of the UPR procedure, the State may be asked about non-compliance with the decision. As quasi-judicial bodies under the UN system, HRTB are not divorced from general legal practice and refer to environmental decisions of other international courts (unlike, for example, the DSB WTO), IPCC documents, and international environmental conventions. Moreover, legal positions from their decisions are used and cited by both universal and regional human rights courts. The UN system, unlike regional human rights bodies, allows developing universal approaches to resolving environmental disputes, and a high level of ratification by States of international human rights treaties allows for the avoidance of jurisdictional restrictions (unlike, say, the Aarhus Committee or the Espoo Committee). Therefore, the world in the form of HRTB has universal legitimate mechanisms to protect the environment (and especially climate) through a link with human rights. All of this should contribute to an enhancement of the ability to protect the environment.