Treaty Bodies and the Interpretation of Human Rights
PDF · Kerstin Mechlem · Jul-11-2012 · 42 VAND. J. TRANSNAT'L L. 905 (2009)
The eight United Nations human rights treaty bodies play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. Unfortunately, their output often suffers from methodological weaknesses and lack of coherence and analytical rigor, which compromise its legitimacy.
This Article suggests that these deficits could in large part be addressed if the committees applied the customary legal rules of interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), which requires attention to the text, context, and object and purpose of a treaty, in a much more systematic manner than currently practiced.
The argument will be made in three steps. After an Introduction (Part I), Part II provides the necessary background. It sets out the Vienna Convention rules of interpretation and provides an overview of the treaty bodies. It shows that despite their various functions, the treaty bodies are legal bodies that are well equipped to apply legal rules of interpretation. Part III suggests that the application of legal rules of interpretation is an obligation as much as a necessity. It makes two main arguments: The first is that the treaty bodies are bound to apply Articles 31 and 32 because of a formal reason—namely, because they interpret human rights treaties largely in lieu of states. As states would be bound by the Vienna Convention rules, the treaty bodies have to adhere to them as well. The second argument is a substantive one. As the treaty bodies’ output is nonbinding, its de facto legal force and impact depends on how convincingly and persuasively it is argued, which in turn is significantly shaped by the consistent use of an accepted and appropriate method. This sub-part will discuss the legal dimension of each of the treaty bodies’ main activities and the role legal interpretation plays for each. It argues that when treaty bodies interpret rights and obligations under a treaty, the use of a legal method of interpretation is necessary to make their work comprehensible, rational, predictable, legitimate, reproducible, and faithful to the principles of legal certainty and the rule of law. Part IV serves to illustrate the relevance of the abstract argument made before by discussing in detail three examples from the work of the Committee on Economic, Social and Cultural Rights (CESCR): the CESCR’s views on (1) the obligations of international organizations under the International Convenant on Economic, Social and Cultural Rights (ICESCR); (2) direct extraterritorial obligations; and (3) core obligations. In each example, one of the three requirements of Article 31 of the Vienna Convention—text, context, or object and purpose—has been neglected. Part IV demonstrates how such neglect has led to unconvincing results that have undermined the value, credibility, and usefulness of the work of the treaty bodies, thereby causing a possible weakening rather than strengthening of the human rights system. The Article closes with conclusions and recommendations developed from the analysis (Part V).