—Viljam Engström, Åbo Akademi University, Finland
As we have recently learned from Koldo Casla at EJIL:Talk! and elsewhere, the Spanish Supreme Court affirmed in July this year that the views expressed by UN Human Rights Treaty Bodies, in this case the Committee on the Elimination of Discrimination Against Women (CEDAW), in individual complaints are binding on the state and that the state must comply with the decision of the Committee. The case before the Supreme Court dealt with whether Spain was obliged to give effect to an earlier ruling of the CEDAW Committee (from July 2014), finding Spain to have infringed the rights of the complainant, Ms González.
In its reasoning, the court seems to have recognized that the CEDAW and the Optional Protocol do not establish a directly enforceable character of decisions on individual complaints. Article 7(4) of the Optional Protocol merely establishes that States “shall give due consideration” to the views of the Committee. However, Article 24 of CEDAW does commit States to “adopt all necessary measures” in order to achieve the full realization of rights at the national level. Given that Article 96 of the 1978 Spanish Constitution affirms that international treaties “form part of the internal legal order”, and that the constitutional bill of rights must be interpreted in accordance with international human rights law (Article 10(2) of the Constitution), the Supreme Court considers compliance with Treaty Body decisions a requirement of the rule of law. Not doing so would breach the principles of legality and legal hierarchy proclaimed in Article 9(3) of the Constitution. The Supreme Court concludes that the “inexistence of a specific procedure to execute the views of the CEDAW Committee (…) constitutes a breach of a legal and constitutional mandate by Spain”.
It is not unheard of that views have been relied on by national courts. However, this is not the same thing as using views of domestic courts as the basis for wrongfulness.
The International Law Association’s 2004 ‘Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies’ concludes that if anything, domestic courts have consistently rejected any formally binding quality of the views (including the Spanish Constitutional Court in 2002). The drafting history of General Comment No. 33 of the Human Rights Committee is revealing of the debate (discussed, for example, by Kanetake). Still in 2014, a report by the Council of Europe’s Venice Commission summarized international consensus by stating that views are not binding judgments. Their only legal consequence is that state parties have an obligation to take them into consideration in good faith. Against these findings, the reasoning of the Supreme Court (for which I am relying on the blogposts referring the case, due to inadequate knowledge of Spanish), does seem to grant a stronger normative status to views.
This development is certainly interesting, even if it is perhaps not completely clear from the brief quotes whether and to what extent the Court actually treats views as such as an independent basis for judicial decision. More detail would be useful on the court reasoning in order to determine whether this really transcends more confirmatory approaches that there are many examples of in domestic legal system. In eagerly awaiting an English translation, two important points could nevertheless be made concerning the role and function of treaty-monitoring.
Committees basically perform three main tasks: they review state reports, interpret the content of human rights treaties through general comments, and receive individual complaints. All committees are comprised of experts, Article 17 CEDAW stating that “The experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems”. While the members often possess legal expertise, not all have a legal education (see list of current CEDAW members here). Unfortunately it is also a well-known characteristic of the committees that the motivation of different committee members to participate in the work may vary (which I can personally testify to, having made a research visit to the Human Rights Committee some years ago). Both features seriously undermine the credibility of the decisions of the treaty bodies in the eyes of domestic courts.
While the drafting of views in response to individual communications is a very court-like function, it should also be remembered that for many both within and outside the committees, this quasi-court-like function is not the primary function of the committees to begin with. Instead it is the dialogue that is engaged through state reporting that is the key to induce change in the human rights situation at the domestic level. In this dialogue, the capacity of a committee (and individual committee members) to face and engage the state is underlined, for this reason even referred to as a diplomatic activity. While individual complaints enable a focused legal analysis of the compatibility of domestic law with a human rights treaty, state reports take a more general approach, scrutinizing the politico-legal system at large. The latter is often considered to be the more effective means for building support over time for the internalization of human rights norms in national law and policy. Instead of further judicialization, then, “movement of the human rights discourse from the category of law and obligation to that of politics, policy and programming” can be as (or even more) effective a means for bringing about systemic change.
There is of course no inevitable contradiction between state reporting and individual complaints. However, the two can also pull in different directions. A development whereby views are treated as legally binding, while eagerly awaited by some (not the least those having had their rights violated by the state), can also have a bearing on the possibility to perform the ‘diplomatic’ function if states counter-react to such an elevation of the normative status of views. Also a maintained legitimacy-building function requires wide-spread participation.
The Spanish Supreme Court decision may well constitute a next step in the growing influence of international human rights law on domestic law. Time will tell whether it will be looked upon in the future as a ground-breaking instance of judicialization. As for now, the decision will at least guarantee that the discussion on the merits of treaty-monitoring stays topical. The timing could not be better, considering the upcoming review of UN human rights treaty bodies in 2020 that seeks strategies for increasing the treaty bodies’ impact on States.
Suggested Citation: Viljam Engström, Spanish Supreme Court Bringing UN Treaty Bodies One Step Closer to International Courts?, Int’l J. Const. L. Blog, Aug. 22, 2018, at: http://www.iconnectblog.com/2018/08/spanish-supreme-court-bringing-un-treaty-bodies-one-step-closer-to-international-courts