HUMAN RIGHTS COMMITTEE RESUMES DISCUSSION ON DRAFT GENERAL COMMENT ON THE RIGHT TO LIFE

The Human Rights Committee this morning resumed its discussion on the draft General Comment No. 36 on Article 6 on the right to life of the International Covenant on Civil and Political Rights. The first reading of the draft General Comment had been adopted at the Committee’s one hundred and twentieth session in July 2017.

The Committee began the second reading of the draft General Comment, after it had discussed the comments received by States, organisations and individuals. Committee Rapporteur for the draft General Comment, Yuval Shany, presented the received comments and led the discussion in which Experts addressed the issue of some States’ challenge to the legitimacy of the drafting exercise and the mandate of the Committee to interpret the Covenant, the role of general comments in reflecting the Committee’s jurisprudence, and the need for the Committee to draw on the work of other United Nations human rights treaty bodies, and to ensure coherence in the system of international law.

Committee Experts reminded that States had accepted that the Human Rights Committee had the primary authority to interpret the Covenant, adding that the drafting exercise was an opportunity for States bring to fore their views. The interpretation of the Covenant was in line with the Vienna Declaration and Programme of Action and the Committee was not going beyond its mandate in the General Comment No. 36. Experts stressed that maintaining the consistency of the international human rights system was of paramount importance for the Committee when drafting general comments, which was why it had to draw on the work of other treaty bodies.

During the second reading of the draft General Comment No. 36, Experts adopted introductory paragraphs 1, 2, 3, 4 and 5, dealing with the definition of the right to life, the scope of interpretation, obligations of States to respect and ensure the right to life, and the death penalty. The second reading of the draft General Comment No. 36 will resume on Wednesday, 1 November, at 10 a.m.

The Committee will next meet on Monday, 30 October, at 10 a.m. to discuss the progress report of the Special Rapporteur on the follow-up to the concluding observations, and the progress report of the Special Rapporteur on follow-up to views.

Opening Remarks

YUJI IWASAWA, Committee Chairperson, reminded that the Committee had completed the first reading of the Draft General Comment No. 36 on article 6 during its session in July 2017. The Chair thanked all the stakeholders, including States parties, for their comments on the first reading of the draft, as well as the Committee Rapporteur and the Secretariat for their hard work.

YUVAL SHANY, Committee Rapporteur for the draft General Comment, thanked all the participants in the process, various States, organisations and individuals who had submitted their contributions and so showed great interest in the issues dealt by the Committee. The first reading of the draft General Comment had focused on Experts’ thinking, said Mr. Shany and added that the Committee would re-examine the interpretation of article 6 for the second time to allow the Experts to reconsider their views in light of the contributions received. The whole process was an opportunity to recognise new developments in the three-year process in practice and law, said the Rapporteur and urged his colleagues to enter the process with an open mind.

General Discussion

YUJI IWASAWA, Committee Chairperson, reminded that the Committee had the legal basis to compile General Comments and assured that the comments made by States would be taken into account during the second reading.

In the ensuing discussion, Experts pointed out that the received comments had not only addressed the General Comment No. 36, but also the mandate of the Committee itself. Some States, such as Australia, Japan and the United States, challenged the mandate and the operations of the Committee. States stated that the General Comment No. 36 was not binding on them and added that the Committee’s concluding observations and comments were simply guidelines and opinions. Experts, thus, proposed that the Committee devote some time to tackle this issue which could be quite hazardous, and if it gained momentum, could prove to be troublesome for the Committee because other States could start acting in the same manner and express hostility towards the work of the Committee. Some Experts proposed that the Committee sum up all the expressed views, compile them in a document, and send them to States which had raised objections to the mandate of the Committee and the value of general comments.

Experts further stated that it was very important to express a very clear position in the General Comment No. 36. First of all, the Committee should avoid philosophical and abstract observations, and instead focus on the legal aspects of the Covenant rights, and avoid repetition; secondly, the Committee should interpret the Covenant as the living document; and thirdly, the General Comment should be based on jurisprudence of the Committee in the broadest sense since the role of general comments was to reflect that jurisprudence. The Committee should also base itself on the work of other United Nations human rights treaty bodies, bearing in mind the need to ensure coherence in the system of international law.

States had accepted that the Human Rights Committee had the primary authority to interpret the Covenant; the drafting exercise was an opportunity for States bring to fore their views. The principle of treaty interpretation set forth in the Vienna Declaration and Programme of Action did guide the work of the Committee, which was not going beyond its mandate in drafting the General Comment No. 36. Maintaining the consistency of the international human rights system when drafting general comments was of paramount importance for the Committee. Experts noted that, while the General Comment No. 36 was not legally binding, it was a useful guide for States.

YUVAL SHANY, Committee Rapporteur for the draft General Comment, responding to Experts’ concerns about challenges to the Committee’s legal authority, said that the Committee should examine the accuracy of criticisms expressed by States parties, which included the use of broad, sweeping language; degree to which the Committee’s interpretation should apply to other treaties; overlap of the General Comment No. 36 with other treaty bodies; reading too many Covenant rights into article 6; generalisation of individual communications; dual approach of General Comments as they were sometimes victim-oriented and other times Government-oriented; use of certain specific terms; legal authority of the document itself; and the use of mandatory language.

Mr. Shany then responded to some of the concerns expressed by States and said that General Comment No. 36 indeed took a broad approach because the right to life should not be interpreted narrowly. It also adopted the approach that human rights were interdependent and that international treaties were mutually reinforcing, and addressed those areas that closely interacted with article 6. The text codified the practice of the Committee, and identified certain gaps in the analysis and invited updates, relying on sources within or outside the United Nations system. General comments were designed to provide States with guidelines on what the Committee did in the implementation of the Covenant. Terms used throughout the General Comment No. 3 were those used by the Committee and other human rights bodies, Mr. Shany explained. The Committee had the longstanding position on the legal status of general comments, which it saw as authoritative interpretation of binding obligations of States under the Covenant.

Second Reading of the Draft General Comment No. 36

Experts adopted paragraph 1 as it stood. As for paragraph 2, some States questioned the use of terms “supreme right,” “armed conflict,” and “public emergencies.” Some Experts noted that the paragraph was too philosophical and that it did not contribute to the legal interpretation of the Covenant. Other Experts stated that there should be no changes to paragraph 2, because without life persons could not enjoy other human rights. The right to life was the supreme right. The Committee then adopted paragraph 2 with amendments.

Turning to paragraph 3, stakeholders had proposed changes regarding the narrow interpretation of the right to life, the use of phrase “life with dignity,” reference to children, convicts, and the death penalty. Mr. Shany proposed that all those proposals be rejected in order to maintain continuity with previous general comments on article 6, and because paragraph 3 was an introductory one. The Committee then adopted paragraph 3 with small amendments.

With respect to paragraph 4, Experts reminded that the paragraph reflected article 2 of the Covenant, and that as such it did not require any changes. The Committee then adopted paragraph 4 without any changes.

Paragraph 5 referred to the death penalty and it reflected the Committee’s support for the trend towards the abolition of the death penalty. Following discussion, Experts decided to reformulate the paragraph and to add a footnote regarding the term “the most serious crimes.” The Committee then adopted paragraph 5 as amended.

Several interventions had been proposed by stakeholders to paragraph 6, namely the use of “intentional” as opposed to “deliberate,” and with respect to the scope of the term “deprivation of life.” Some Experts noted that the paragraph was somewhat speculative and that it could give rise to interpretation problems, whereas others thought that keeping it would be useful for general practitioners of law.



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CT/17/40E