Uncomfortable Conversations in Geneva

The United Nations Human Rights Committee (HRC) is currently holding its annual session in Geneva to consider the reports submitted by states setting out their adherence to the obligation in the International Covenant on Civil and Political Rights. States’ reports as well as public dialogue with the state under review at the Palais Wilson forms the basis for Concluding Observations and HRC recommendations for greater compliance with treaty obligations. The meeting is also attended by local and international NGOs operating inside of the reporting states, making the gathering a forum for a broader civil society dialogue about human rights enforcement, state obligations, and how thing can be done better.

Conversations vary with the states under review for obvious reasons. When a state broadly demonstrates it is doing its best and when there is evidence of genuine advancement in human rights protections dialogue is at its most productive. There is an obvious expectation that leading democratic states fall into the “easy” conversation category, and that states with histories of repression, atrocity crimes, and an unwillingness to protect their citizens from an excess of state coercive power will have a more challenging experience. But when the United Kingdom and Canada appeared before the Committee in Geneva this week, both were subject to forensic and sustained review on the adequacy of their enforcement of the Covenant.

For Canada, the Committee was particularly concerned at the treatment of Aboriginal peoples, and especially Aboriginal women. The need for a balance between human rights protections and security surfaced repeatedly in strikingly detailed reviews of the Canadian government’s respect for privacy, the processing of refugee and asylum claims, and the recent practices by the Canadian government of sending individuals subject to HRC-issued interim measures meant to protect their safety back to their countries of origin or third countries in apparent violation of the non-refoulement principle. Criticisms also emerged on the manner in which Canada has created new methods and means to withdraw Canadian citizenship from persons believed to have committed terrorist offences including the recent passage of Bill C-51, the Anti-terrorism Act 2015.

The United Kingdom also had a surprisingly contentious ride at the Committee as it presented its 7th periodic Report. Security and post-conflict issues figured prominently in the Committee’s robust questioning. The Committee expressed its concern about the proposed repeal of the United Kingdom’s Human Rights Act 1998 and the failure to implement the Northern Ireland Bill of Rights. The UK representative was rigorously grilled on issues of torture by British soldiers, the use of stop and search powers under anti-terrorism legislation, the failure to deal with conflict-related deaths in Northern Ireland, and breaches of the state’s obligation with respect to liberty and security of person from various anti-terrorism measures that impose restrictions and requirements on individuals including those based on the Terrorism Investigation and Prevention Measures (TPIM) Act 2011.

While we await the Concluding Observations of the Committee for both countries, the review process itself revealed the robustness of the Committee’s interrogation and its willingness to be an “equal opportunities” reviewer. The tone, content, and detail of the HRC ‘s engagement with these countries affirms that even states with long democratic credentials can expect to be subject to rigorous review on their ICCPR obligations. More surprising in some ways was the robustness of state defense on what appear to be flagrant violations of treaty obligations (e.g., the Canadian response to the expulsion of individual in violation of an express interim measure by the Committee expressing little regret or concern). The ongoing attention to security depriving measures in the context of terrorism and counterterrorism regulation by both these states also reminds us that the human rights apparatus of the international community remains an important and neutral review point on the liberty-security balance. The assertion of the right and value of review by the HRC is critical given the fundamental lack of human rights integration into the work of the UN Counter-Terrorism Committee. We await the Concluding Observations with interest. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).