Interpreting International Human Rights Standards Treaty Body General Comments in Domestic Courts

McCall-Smith, Kasey

doi:10.2139/ssrn.2551534

Cited by 3 publications

(3 citation statements)

References 8 publications

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“…These interpretations are non-binding in legal terms, but the so-called general comments have evolved into authoritative treaty interpretations of the Covenant. 76 There are no formal rules as to when and how such a general comment should be elaborated and by whom, and they are not a recurring part on the meeting agenda of the treaty bodies, nor are treaty body members compensated for their work beyond the sessions. As a result, the drafting of general comments depends on individual agency 77 -which member has interest in and time for a drafting process.…”

Section: An Analytical Framework For Studying Interpersonal Relations...mentioning

confidence: 99%

The power of interpersonal relationships: A socio-legal approach to international institutions and human rights advocacy

Reiners

2023

Rev. Int. Stud.

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This article further develops and illustrates the argument that relationships between individuals help to explain the success of human rights advocacy in international institutions. Drawing from advocacy theory and socio-legal studies, I shift the attention from collective forms of advocacy to the importance of interpersonal relationships of advocates with individuals in international institutions to influence the development of human rights. I introduce a framework consisting of three analytical steps – mapping the key actors in a network, process-tracing, and biographical research – and apply the framework to three cases of norm development by a United Nations human rights treaty body. My findings highlight the power of interpersonal relationships for the making of human rights, and they inform scholarship on transnational elites, human rights advocacy, and the politics of international law.

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Section: An Analytical Framework For Studying Interpersonal Relations...mentioning

confidence: 99%

The power of interpersonal relationships: A socio-legal approach to international institutions and human rights advocacy

Reiners

2023

Rev. Int. Stud.

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“…From a children's rights standpoint, the gc's are very much the jewels in the Committee's crown as they delineate the core baseline expectations and specificities which attach to the realisation of the various rights within the crc. Although 'auxiliary to treaty obligations' (Bodig, 2016: 69) and bereft of legal force, they exert a growing level of influence on international human rights law, not least as increasingly popular sources of reference in both domestic and supra-national jurisprudence (McCall-Smith, 2016). In the UK, for example, the gc s have been frequent points of judicial reference in a wide range of cases where children's rights have been engaged.…”

Section: The Crc's Gc S Inadequate Engagement With Progressive Realizmentioning

confidence: 99%

Reclaiming Progressive Realisation: A Children’s Rights Analysis

Byrne

2020

Int. J. Child. Rights

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Any discussion on children’s socio-economic rights should not overlook their means of fulfilment; namely, the principle of progressive realisation and the legal duties arising therefrom. This article argues that from a children’s rights perspective, this principle has remained legally and operationally underdeveloped by the Committee on the Rights of the Child. This can be seen from their failure sufficiently to engage with, and address, the obligations imposed by progressive realisation in their General Comments and in their Concluding Observations on state practice issued under the Convention’s reporting process. This article argues that the cumulative consequence of these failings is that the Committee has peripheralised this important legal obligation within children’s rights scholarship and has ultimately undermined its ability to achieve its full legal potential in enhancing children’s socio-economic rights. In advocating for the promulgation of a revised General Comment on the General Measures of Implementation, it demonstrates how children’s rights can meaningfully reconnect with the principle in a more consequential way.

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“…By 2020, they had passed 172 General Comments. Once adopted, many become anchors in human rights discourse, the practice of other international organizations as well as regional and national judiciaries (Barkholdt and Reiners 2019;Creamer and Simmons 2020: 33;McCall-Smith 2016). In practice, they have become 'a means by which a UN human rights expert committee distills its considered views on an issue which arises out of the provisions of the treaty whose implementation it supervises' (Alston 2001: 764).…”

Section: Introductionmentioning

confidence: 99%

Informal human rights law-making: How treaty bodies use ‘General Comments’ to develop international law

Lesch

Reiners²

2023

Glob. Con.

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The United Nations treaty bodies were established to monitor the implementation of human rights by states parties. Through ‘General Comments’ – legally non-binding clarifications of treaty obligations – they have also influenced the development of international human rights law – for example, on the right to life and climate impacts. We address this phenomenon by establishing a twofold argument. First, we argue that General Comments are used by the committees to informally shape international law. They deliberately act as human rights law-makers, knowing that international institutions, organizations and professionals in their network will subsequently refer to such instruments. Second, we argue that treaty bodies not only rely on their network once they have adopted their outcome, but the experts’ personal networks also shape the drafting process of General Comments. We develop and illustrate an analytical framework with two case studies of General Comments on the human right to water and the torture prohibition. The analysis demonstrates the need for external knowledge of both technical and legal aspects of the norms being interpreted. By addressing pressing human rights challenges, expert committees can shape the law in times of stagnation and resist contestation even from powerful states.

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Interpreting International Human Rights Standards Treaty Body General Comments in Domestic Courts

Abstract: This paper explores

Cited by 3 publications

References 8 publications

The power of interpersonal relationships: A socio-legal approach to international institutions and human rights advocacy

The power of interpersonal relationships: A socio-legal approach to international institutions and human rights advocacy

Reclaiming Progressive Realisation: A Children’s Rights Analysis

Informal human rights law-making: How treaty bodies use ‘General Comments’ to develop international law

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