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On the “Concluding Observations” of the United Nations Human Rights Treaty Bodies
October 23,2019   By:CSHRS

 On the “Concluding Observations” of the United Nations Human Rights Treaty Bodies

ZHANG Xuelian*

Abstract: The concluding observations are comments and recommendations made by the treaty bodies to the country after reviewing the reports of specific State Parties with a view to monitoring the State Parties’ compliance. Although these opinions are not legally binding, they do have a certain authority. When deciding whether to endorse this authority and accept the recommendations, the State party will focus on the legality of the concluding observations. The legality of the concluding observations is influenced by three factors, the first one is the formal relevance between the recommendations and the relevant treaty provisions; the second one is the substantive relevance between them; the third is the extent to which the treaty interpretation rules are followed. For the -concluding observations of treaty bodies against China, we should treat them separately. The feasible recommendations that are most closely related to treaty obligations should be adopted as far as possible. Appropriate consideration should be given to general policy recommendations, and recommendations that are completely unrelated to treaty obligations can be ignored.

Keywords: human rights; treaty bodies; concluding observations; legality

As a part of the reporting system of State Parties to the United Nations human rights treaties, the concluding observations are the comments and recommendations made by treaty bodies that analyse reports submitted by specific State Parties, interpret treaty provisions and respond to their compliance with treaty obligations on the basis of referring to other information resources.1 These concluding observations are of a recommendatory nature and the State Parties have no legal obligation to comply with them, but their interpretation of treaty provisions and the obligations of the State Parties is generally considered to be of great value. This paper, focuses on the following issues: the development process of the concluding observations from friendly cooperation to supervision, the embodiment of the authority of the concluding observations, the factors affecting the acceptability of the concluding observations and how to deal with the concluding observations against China made by various committees. The paper is divided into five parts, the first part is an overview of the concluding observations; the second is an analysis of the effectiveness of the concluding observations; the third focuses on the legality of the concluding observations; the fourth is a classification study of the concluding observations against China issued by the committees; and the fifth is the summary.

I. An Overview of the Concluding Observations

The core UN human rights conventions stipulate that the State Parties have the obligation2 to submit compliance reports to the corresponding committees, but there is no clear provision as to whether the committees have the right to make recommendations to the State Parties after considering the reports. Early practice of the Human Rights Committee (HRC) showed that although most members of the Committee wished to reach some form of conclusion after having a dialogue with the State Parties, they did not achieve it owing to the objections of some members, especially those from Eastern European countries, who believed that the submission of reports by the State Parties and the consideration of reports by the Committee were friendly cooperation between the State Parties and the Committee, and strongly opposed the Committee’s criticism of specific States or its decision on the failure of the State Parties to comply with their obligations under the Convention3. During this period, the Committee did not make any recommendation after having considered the reports of the State Parties, except that some committees took the discussion and dialogue between the Committee and representatives of the State Parties on the reports of the State Parties as part of their annual reports to the UN General Assembly, for example, since 1985, the HRC has included in its annual report to the General Assembly a number of the concluding observations made by individual members, providing details of oral discussions with the State Parties. The Committee on Economic, Social and Cultural Rights (CESCR) also has special chapters in its report to the Economic and Social Council (ESC) to record the summary of the Committee’s deliberations on the reports of the State Parties, and the concluding observations containing one or more natural paragraphs are sometimes presented at the end of the summary.

By the end of the 1980s, the end of the Cold War had reduced the State Parties’ concerns about the Committee’s involvement in domestic affairs. Seeing such an opportunity, the CESCR had taken the lead in issuing country-specific concluding observations in 1990, and since then the committees have begun to issue such types of concluding observations. The concluding observations of the committees are generally consistent in structure: first, an introduction, often involving comments on the timely submission of reports by the State Parties and on the submission of reports in accordance with the reporting guidelines of relevant conventions; second, a brief comment on the “positive aspects”, highlighting the achievements of the State Parties; the main part is the “main issues of concern and recommendations”, in which the committees list their key concerns by analyzing the reports of State Parties, the replies of representatives of the State Parties in the dialogue and other available documents; finally, the committees make recommendations accordingly and request State Parties to provide relevant information on the implementation of certain recommendations within the prescribed time frame. Under this structure, there will be some differences in the specific arrangements of the committees, for example, the concluding observations of the HRC and the Committee on the Rights of Persons with Disabilities (CRPD) have both been divided into four parts: introduction, positive aspects, main concerns and recommendations, and dissemination and follow-up. The concluding observations of the Committee against Torture and the Committee on the Elimination of Discrimination against Women (CEDW) have been divided into three parts: introduction, positive aspects and major issues of concern and recommendations. In addition to the main parts mentioned above, the concluding observations of the CESCR and the Committee on the Rights of the Child (CRC) also contain a section entitled “Factors and Difficulties Impeding the Implementation of the Convention”.4

In terms of purpose, while maintaining friendly cooperation with the State Parties, the committees pay more attention to monitoring the compliance with the treaties by the State Parties. This is mainly reflected in the concluding observations, which add a lot of content to the general assessment of the compliance with the treaties by the State Parties, and pay more attention to the application of treaty provisions by the State Parties and offer their recommendations and comments to the State Parties. As members of the committees become more familiar with the review process and the provisions of the Convention, the concerns in the concluding observations become more comprehensive, and the comments and recommendations become more detailed and complex. Taking the CESCR as an example, the Committee’s concluding recom-mendations against Australia in 1993 contained only 20 paragraphs, with a limited list of issues concerning the situation of disadvantaged groups in the education system, aboriginal cultural heritage awareness and the impact of funding non-governmental schools on government-run schools. The recommendations put forward also have general characteristics, such as strengthening close cooperation between institutions and organizations, formulating indicators, and taking measures to monitor the general situation of disadvantaged groups such as aborigines. By 2017, the Committee’s views against Australia had grown to 65 paragraphs, with more comprehensive concerns, including the prosecutability of convention rights, business and human rights, aboriginal rights, asylum-seekers’ rights, disabled persons’ rights, gender equality, unemployment, social security rights, domestic violence, housing rights and health care. As far as aboriginal issues of common concern in the two concluding observations are concerned, the recommendations of the 2017 observations are more detailed than those of 1993, including requiring the State Parties to recognize aborigines constitutionally, continuing legal amendments to the 1993 Aboriginal Land Rights Act, and incorporating the principle of free, prior and informed consent into the 1993 Aboriginal Land Rights Act and even into other laws.5

In order to better fulfill the monitoring function of the concluding observations, the HRC, in addition to requesting the State Parties in their concluding observations submit information on the steps taken to implement the recommendations of the Committee in its next report, has established a follow-up procedure, namely, appointing a rapporteur on follow-up measures, and requested the State Parties to submit additional information on issues of particular concern to the Committee within one year, with the rapporteur submitting a report on the acceptability and satisfaction of follow-up measures to the Committee, which is then subject to public review by the Committee. The CESCR has gone further in the arrangement of follow-up procedures. When State Parties have not provided additional information as required or insufficient additional information , the Committee will request them to accept a delegation consisting of one or two members of the Committee whose purpose is to collect information for dialogue with the State Parties, and determine the scope of technical assistance required by them in implementing the Convention or preparing its report. The Committee against Torture, the CEDW and the CRC have adopted follow-up procedures similar to those of the HRC, which may appoint a rapporteur on follow-up measures and re-quest State Parties to take follow-up measures on certain recommendations within a specified timeframe.

II. The Effectiveness of the Concluding Observations

Considering the status of treaty bodies in relevant treaties and the binding nature of treaty obligations, the concluding observations, though not legally binding, are authoritative. This authority refers to “how to interpret the provisions of the Convention in a particular environment of a country”6. O’F1aherty classified and interpreted the authority of concluding observations according to their different contents. He believed that the authority of two kinds of content in concluding observations is the most obvious. One is the content of claiming violation of the treaty; the other is the content of explaining the provisions of the treaty. In contrast, the general recommendations in the concluding observations on improving compliance strategies and the authority of some elements unrelated to or of low relevance to the actual treaty obligations of State Parties are not very clear.7 Following the idea of O’F1aherty, we can analyze the authority of the concluding observations as follows:

First, when the concluding observations declare that a State party is in breach of its treaty obligations, the State party should pay attention to the Committee’s recommendations and stop the violation if it is in fact in breach of its treaty obligations. The failure of a State party to comply with recommendations may indicate a continuing non-compliance with its treaty obligations. Of course, the State party’s failure to re-spond to the Committee’s recommendations may also be due to other reasons, such as the lack of an enabling environment for complying with its obligations or the lack of effective dissemination of the concluding observations.

Second, some criteria in the concluding observations based on the interpretation of treaty provisions may be treated as legal resources for treaty interpretation. As for whether the concluding observations constitute legal resources for treaty interpretation, theoretical controversy mainly centers on whether these concluding observations constitute “subsequent practice” in Article 31, paragraph 3, of the Convention on the Law of Treaties, because according to traditional methods, treaty body practice itself is not “State practice”. Therefore, if supporters want to prove that treaty body practice constitutes “subsequent practice”, one way is to link treaty body practice with the national practice, emphasizing that positive, supportive responses or acquiescence by State Parties can be regarded as establishing the consent of State Parties to treaty body interpretation and constituting a “subsequent practice” in the traditional sense. Another way is to amend the traditional method of “subsequent practice”. In this regard, the International Law Association (ILA) holds a more representative view that Article 31 of the Convention on the Law of Treaties was formulated on the basis of traditional multilateral treaties, and supervision between State Parties was mainly taken into account in the field of supervision; but human rights treaties are different from traditional multilateral treaties, and treaty monitoring bodies as third parties are generally established. Therefore, in interpreting human rights treaties, relevant subsequent practice may be broader than that of subsequent States, and the practice of treaty bodies also needs to be included.

In judicial practices, the typical case of concluding observations as a legal resources for treaty interpretation is the advisory opinion of the International Court of Justice (ICJ) on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In that advisory opinion, the ICJ took note of the concluding observations of the HRC and the CESCR against Israel, which served as an authoritative interpretation of Israel’s obligations under these treaties. The concluding observations of both committees expressed concerns about Israel’s consistent position that relevant treaties did not apply outside its own territory, particularly in the West Bank and Gaza. The HRC considered that “in the current circumstances, in order to protect the inhabitants of the occupied territories, the provisions of the treaty shall apply to all acts of the authorities or persons of the State Parties in those territories that affect the enjoyment of the rights set forth in the treaty and fall within the scope of Israel’s national responsibility under the principles of international public law”; the CESCR also noted that “the obligations of State Parties under the treaty apply to all territories and populations under their effective control”8.

It is noteworthy that domestic courts also recognize concluding observations as resources for the interpretation of human rights treaties to a certain extent. When hearing cases, domestic courts in some countries will take into account the concluding observations issued by relevant committees against their own countries and take the interpretation of treaty provisions and national obligations in the concluding observations as a reference for understanding the content of relevant treaties. For example, in the case of Suresh, the Supreme Court of Canada cited the concluding observations of the Committee against Torture against Canada to explain the meaning of Article 3, paragraph 1, of the Convention against Torture and Canada’s obligations. The petitioner in this case is from Sri Lanka, a member of the terrorist organization Liberation Tigers of Tamil Eelam, which engaged in terrorist activities in Sri Lanka and whose members were subjected to torture in Sri Lanka. The petitioner applied to Canada for immigration status, but the Canadian Government rejected his application on national security grounds and decided to expel him back to Sri Lanka. The Court noted that the two international human rights conventions were relevant to the case. One was Article 3, paragraph 1, of the Convention against Torture, and the other was Article 33, paragraph 2, of the Convention Relating to the Status of Refugees . The former stipulates that “no State party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture”; the latter recognizes that the former can be excluded on the basis of legitimate grounds of national security. The Court held that the provisions of Article 3, paragraph 1, of the Convention against Torture embodied universal international standards and could be applied to any person without derogation, while the main purpose of the Convention Relating to the Status of Refugees was to ensure that refugees enjoyed a wide range of rights and freedoms, so the provisions of the latter could not negate the interests protected by the former. In order to further clarify Canada’s obligations under the Convention against Torture, the Court referred in particular to the concluding observation made by the Committee against Torture against Canada. In that observation, the Committee against Torture recommended that Canada “fully comply with Article 3, paragraph 1, of the Convention, whether or not a person has committed a serious crime or poses a security risk to the State”9.

In addition to invoking concluding observations against their own countries, domestic courts sometimes consider concluding observations made against other countries. For example, in the landmark case of the Argentine Supreme Court jointly determining the scope of legal abortion, in addition to invoking the concluding observations of the HRC and the CRC against Argentina, the concluding observations against Peru and the Gambia were also cited with the aim of reinterpreting the criminal law and extending the scope of abortion to rape victims.10 For example, in a case challenging the constitutionality of the Electoral Distribution Act, the High Court of Australia invoked the concluding observations of the HRC against Chile, Hong Kong and Paraguay, respectively, to explain the obligations of State Parties to the democratic electoral process and the free and equal implementation of the right to vote11.

Third, based on the principle of bona fide implementation of treaties, State Parties should at least pay attention to the general recommendations made by treaty bodies on the implementation strategies of treaties and check their willingness to accept the concluding observations. If it decides not to accept, them the State party should provide the Committee with reasons in the follow-up procedure or in its next report; if it decides to accept, the State party may give due consideration to it at the stage of drafting and discussing domestic legislation.

III. On the Legality of the Concluding Observations

Concluding observations are not legally binding on State Parties, and their effectiveness often depends on the voluntary compliance of State Parties with their observations and recommendations. From the viewpoint of State Parties, whether a country accepts the authority of the concluding observations and whether it accepts the recommendations contained in the concluding observations are influenced by the political will, international relations and national legal systems and traditions, and the legality of the concluding observations themselves is also taken into account. Although the review of State Parties’ reports by treaty bodies is not a judicial or quasijudicial process, at least the review should be conducted within the legal framework of the relevant human rights treaties and be subject to treaty law.12 The restriction of human rights treaties on the legality of concluding observations is mainly embodied in the form and content. In addition, the analysis of legal issues in concluding observations should conform to the general rules of treaty interpretation.

A. The formal relevance of the concluding observations and the treaties

In order to ensure that their concluding observations do not exceed the scope and authority of monitoring the implementation of relevant treaties, the committees have formally linked their views with relevant treaties, and there are two specific approaches.

1. The model of provisional substitution

The model of provisional substitution refers to the relevant provisions of the treaty mentioned explicitly at the end of the paragraph after enumerating the concerns of the State Parties. This model has been adopted by the HRC, the CESCR and the Committee against Torture. Taking the Concluding Observations on Vietnam’s Initial Report of 2018 as an example, the Committee expressed its concern about the issue of solitary confinement, pointing explicitly to Article 2 of the Convention, and to Articles 1, 2 and 4 of the Convention when expressing concern that torture is not clearly defined in domestic legislation and that torture is not criminalized. For example, in its concluding observations against South Africa in 2018, the CESCR explicitly referred to Article 2, paragraph 2, and Article 6 of the Convention when it was concerned about the employment of persons with disabilities in South Africa; to Article 7 of the Convention when it was concerned about the minimum wage; and to Article 3 and 10 of the Convention when it was concerned about the registration of births.

2. The model of rights classification

The model of rights classification is to place specific recommendations under the rights of one or more conventions in order to ensure that a part of the concluding observations is concerned with the rights of one or more conventions. This model is represented by the CRC and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. Since August 1999, the CRC has categorized the concerns and recommendations of State Parties according to their rights. For example, in its concluding observations on Benin in August 1999, the Committee commented on civil rights and freedoms, the family environment and alternative care, basic health and welfare, education, leisure and cultural activities, and since then the Committee has classified rights more carefully and divided them into different sub-categories under each category of rights. For example, in its concluding observations against China in 2013, the Committee divided “civil rights and freedoms” into two sub-categories: one was birth registration, name and nationality, and the other was ideology, conscience and freedom of religion. It divided “family environment and alternative care” into three sub-categories: family environment, children deprived of the family environment and adoption, and respectively put forward some concerns and suggestions.

3. The mixed model

The Committee on the Elimination of Racial Discrimination (CERD) and the CEDW have not adopted a fixed model. For example, the CERC sometimes marks the relevant provisions of the Convention at the end of a paragraph of concern, sometimes without mentioning any provisions of the Convention at all. The CEDW has also taken a different approach. In the same concluding observations, some paragraphs will clearly point to the provisions of the Convention, while others are not mentioned. Although this approach does not necessarily mean that the two committees are beyond their competence, it may negatively affect the transparency of the committees’ views, as it is difficult to formally see whether the committees are working within the legal framework of the Convention.

B. The substantive relevance of the concluding observations and the treaties

In judging the legality of concluding observations, it is far from enough to rely solely on the relevance of the Committee’s concluding observations to the Convention. On the one hand, the annotations in the concluding observations do not fully guarantee that the concerns and recommendations of the Committee are relevant to the treaty in substance; on the other hand, simple annotations do not reflect the degree of relevance between a particular concern of the Committee and the Convention. In fact, in determining whether a matter is a legitimate concern of the Committee, there is no clear demarcation line, some matters may not be controversial, and some may be affected by the interpretation of the relevant treaty provisions. If a Covenant right is interpreted more extensively, the scope of the Committee’s concerns will be expanded, and vice versa. Therefore, the different contents of the concluding observations should be analyzed separately.

1. Concerns and recommendations on State Parties’ breaches of the treaties

Obvious breaches of treaties by State Parties are the primary concern of the committees, and comments and recommendations on such matters constitute the main part of the concluding observations. Committees usually make clear the treaty provisions violated by State Parties, the main breaches of treaty rights and make targeted recommendations. Generally speaking, such recommendations in the concluding observations are directly related to the relevant treaties in substance and have the highest legality and authority.

Take the latest concluding observations of the CRC as an example. In view of the fact that corporal punishment in the Syrian Arab Republic remains legal, the Committee recommends that “corporal punishment in all circumstances be explicitly prohibited and that the provisions of Article 170 of the Personal Status Act and the Penal Code allowing corporal punishment of children be repealed without further delay”; and targeted to the situation that a large number of children and school staff were killed or injured as a result of attacks on schools, the Committee urges the State party to “immediately stop all attacks on schools, take immediate measures to ensure that all parties to the conflict respect international humanitarian and human rights law, respect protected objects such as schools, and enact laws, issue military directives, prohibit and sanction attacks on schools and acts of using them for military purposes”13.

2. General policy recommendations to State Parties

In addition to expressing their concerns about what they consider to be violations of a treaty, the committees also make recommendations to State Parties on a wide range of policy issues related to compliance with a treaty. These recommendations can usually be divided into two categories: policy recommendations on general implementation measures, such as encouraging State Parties to withdraw their reservations to the Convention, enacting or amending a domestic legislation, formulating relevant national action plans, and providing adequate human, technical and financial resources; and policy recommendations on specific rights. Positive suggestions, such as the CRC urging State Parties to establish mechanisms for reporting cases of child marriage in response to harmful practices, and the CRPD, in order to guarantee the right to health, recommend that State Parties take measures to ensure the provision of all health care and services to persons with disabilities.

From a legal viewpoint, such recommendations are not directly related to the infringement and protection of the specific rights of the treaty, but are beneficial to the full realization of the treaty as a whole. Generally speaking, the non-implementation of these recommendations does not constitute a breach of treaty obligations, but they still have some legality. First, its legality is related to the characteristics of concluding observations. Compared with general observations issued by all State Parties, concluding observations are more specific. Compared with the observations made on individual complaints, concluding comments are more holistic and comprehensive, and pay more attention to the systematic promotion of the rights of State Parties. Therefore, it is essential for concluding observations to have holistic policy recommendations for specific State Parties. Second, the legality of policy recommendations is rooted in the nature of treaty rights and the obligations of State Parties. The realization of any right imposes both negative and positive obligations on State Parties. That is to say, State Parties have not only negative non-infringement obligations, but also the obligation to create legal, institutional and procedural conditions to ensure the full realization of rights, which inevitably includes policy issues. Although the legality of policy recommendations is supported by the above factors, their authority and impact on State Parties are weak, as State Parties have broader discretion in these matters than committees.

3. Recommendations not treaty-related to State Parties

Sometimes treaty bodies express concerns or make recommendations to State Parties on matters not clearly related to the treaties, such as recommending ratification of other treaties not related to treaties or recommending cooperation between State Parties and other international and regional monitoring bodies. Such recommendations are widespread in the concluding observations of treaty bodies and have “sometimes even impaired their own monitoring functions”14.

The CEDW and the CERD have adopted standardized practice, i.e. to insert several similar paragraphs in their concluding observations for all countries. The main contents of the former include recommending State Parties to ratify other conventions, recommending State Parties disseminate the Beijing Declaration and Plan of Action, recommending State Parties provide information on the implementation of the recommendations of the United Nations Conference, etc. The latter includes recommending State Parties ratify other conventions and documents, and recommending the State Parties implement the Durban Declaration and Programme of Action. Although other committees do not use standardized terminology, there are also such recommendations. For example, the CESCR often recommends in its concluding observations that State Parties ratify other documents. In addition to recommending the ratification of documents, the CRC also recommends that State Parties cooperate with international and other regional bodies.

Although recommendations such as ratification and dissemination of other treaties and documents as well as cooperation with other international and regional bodies may increase the protection of current treaty rights, it is difficult to prove the necessity of these measures for the realization of treaty rights. Therefore, compared with other elements in the concluding observations, such recommendations have the least legality and authority, and State Parties usually do not use them as a reference for the domestic implementation of treaties.

C. The extent to which the treaty interpretation rules are followed

In addition to considering the relevance of content to a treaty, when concluding observations are based on interpretation of a treaty, the legality also depends on observations degree of compliance with the rules of treaty interpretation. That is to say, some recommendations concerning the core rights of treaties may also be questioned on their legality because they do not comply with the general rules of interpretation. On the one hand, there is a common practice among the committees in the consideration of State Parties’ reports, that is, to widely invoke general recommendations and individual complaints as criteria for judging State Parties’ compliance, in which the legality of general recommendations and individual complaints themselves for treaty interpretation becomes a key issue in judging the legality of concluding observations. On the other hand, when concluding, the committees will also interpret treaties freely without the intention of the text and legislators, resulting in inappropriate interpretation of treaties to expand treaty rights or obligations of State Parties. If such interpretation is used as a criterion for judging the compliance of State Parties, its legality and authority are very difficult to be acknowledged by State Parties.

In 2004, in a case of extraterritorial torture victims seeking compensation, Canadian courts rejected the plaintiff’s claim for compensation against Iran and supported Iran’s jurisdictional immunity in Canadian courts. In 2005, the Committee against Torture criticized the position of the Canadian courts in its concluding observations against Canada and recommended that Canada review its obligations under Article 14 of the Convention against Torture to ensure that all victims of torture are compensated through civil remedies. In its concluding observations of 2012, the Committee reiterated this view and recommended that “the State party should ensure that all victims of torture are compensated and remedied, wherever torture occurs and regardless of the nationality of the perpetrator or victim. In this regard, consideration should be given to amend the Government Immunity Act to remove obstacles to remedies for all victims of torture”. In both concluding observations, the Committee extended its interpretation of the provision of “civil compensation for all victims of torture” under Article 14 of the Convention, but did not provide sufficient grounds to justify the interpretation. Therefore, not only did the Canadian courts refuse to accept the recommendation, but the judges of the British House of Lords also clearly disagreed with the Committee’s interpretation and supported sovereign immunity in civil proceedings. In the case of Jones, Judge Bingham took note of the Committee’s comments against Canada and denied the relevance of the Committee’s recommendations, pointing out that “regardless of the value of concluding observations in influencing international ideological trends, their legal authority is very small”15.

IV. The Concluding Observations of the Committees Against China

The six core UN human rights treaties ratified by China have established the reporting system of State Parties. Up to April 2019, the committees have submitted 17 concluding observations against China, including three by the CEDW, three by the CERD, three by the Committee against Torture, two by the CESCR, five by the CRC and one by the CRPD. For these concluding observations, the Chinese government’s position is to respect and actively consider constructive recommendations and feasible suggestions, and to adopt and implement them taking into account China’s national conditions. With the help of the previous analytical framework, the following will be a categorized analysis of the content of the concluding observations16 recently adopted by each committee.

A. Adopting as far as possible the feasible recommendations most closely related to treaty obligations

As mentioned earlier, some of the committee’s recommendations are most closely related to the relevant treaty obligations. For example, in its concluding observations in 2012, the CRPD noted that the “eligibility criteria for the Disability Allowance Schemes in the Hong Kong Special Administrative Region were outdated and that the definition of disability in different laws and the definition of disability adopted by various government departments were different and lacked uniformity”. It recommended that Hong Kong “revise inappropriate eligibility criteria, and adopt a definition of persons with disabilities that fully reflects the provisions of Article 1 of the Convention and the human rights model. For example, after expressing concern about sexual abuse and deprivation in all regions of China, the CRC recommended that the mainland of China “strengthen its efforts to protect the children of migrant workers from sexual exploitation and abuse, ensure the effective implementation of laws relating to sexual exploitation and abuse, and bring the perpetrators of such crimes to justice”. It also recommended that Hong Kong “comprehensively review the Crimes Ordinance and reform the law to criminalize all forms of child pornography and sexual exploitation of children on the Internet”. In view of the fact that these recommendations mostly involve the substantive aspects of our country to comply with the treaty obligations, they should be adopted as far as possible without violating our legal policies.

B. Giving appropriate consideration to general policy recommendations

Many general policy recommendations are not directly related to the specific compliance with treaty obligations, but may contribute to the full realization of treaty rights. For example, after expressing concern about special education in China, the CRPD recommended that “the resources in the special education system should be diverted to promote inclusive education in mainstream schools to ensure that more children with disabilities can receive mainstream education. And also, the CRC recommended that China “continue to increase the number of professionals working with children and provide training for all professionals by allocating more government resources”. The CESCR recommended that our country “provide systematic training for judges, lawyers, and law enforcement personnel on all human rights, including economic, social and cultural rights”, that, in the right to health section, our country “increase budgetary allocations for the health sector and ensure equitable distribution at provincial, municipal and local levels”, and that, in the part of the right to social security, our country “expand the coverage of social security system, especially to benefit ethnic minorities, rural residents and migrant workers, as well as workers in the informal sector”. These recommendations all involve general policy issues. Although they may contribute to the compliance with the treaties in a general sense, their feasibility in our country should also be considered in light of our specific situation. That is to say, as a State party, our country has the discretion to decide whether we should adopt these policy recommendations.

C. Setting aside the recommendations not related to treaty obligations

The concluding observations of the committees will more or less contain some recommendations unrelated to treaty obligations. For example, the CESCR recommended that China “ratify the International Covenant on Civil and Political Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention for the Protection of All Persons from Enforced Disappearance and ILO Convention No. 189 on Decent Labour of Family Workers”. In addition to recommending that China ratify the above-mentioned conventions, the CRC also recommended that China “cooperate with the ASEAN Committee for the Promotion and Protection of Women and the Rights of the Child and other institutions”; while the CEDW called on China to “make use of the Beijing Declaration and Program for Action to make efforts to implement the provisions of the Convention”. Although these recommendations contribute to the realization of the treaties, they are not the obligations of State Parties under treaties; our government can completely ignore them, should it so wish.

V. Conclusion

From the analysis of this paper, it can be seen that concluding observations are an important method for the UN human rights treaty bodies to monitor the compliance of State Parties. Considering the status of treaty bodies in relevant treaties and the binding nature of treaty obligations, their concluding observations are not legally binding but authoritative. There are many cases to take the concluding observations as legal resources for treaty interpretation in international and domestic laws. However, the authoritative approval of the concluding observations by State Parties has to be affected by the legality of the concluding observations themselves. In judging the legality of a concluding observation, State Parties usually consider from three aspects: first, they will consider the formal relevance of the concluding observations to the relevant treaties; the committees will also highlight this relevance by means of provisional substitution or rights classification. Second, they will consider the substantive relevance of the concluding observations to relevant treaties; the higher the relevance between the content of recommendations and treaty obligations, the greater the possibility of acceptance by State Parties. Last, they will also consider the extent to which the treaty interpretation rules are followed. Generally speaking, the recommendations that depart from the text of the treaties or the intent of legislators are difficult to obtain the approval of State Parties.

According to the six core UN human rights treaties ratified by China, our country undertakes the obligation to submit compliance reports to the corresponding treaty bodies, and the treaty bodies present their concluding observations based on the reports submitted. Although these concluding observations are not legally binding on our country, our attitude towards these observations is often taken as a factor to evaluate our sincerity in performing with compliance. With the above-mentioned analytical framework, our country can differentiate the contents of the concluding observations: we should try our best to adopt those recommendations that are most close to treaty obligations; we can give appropriate consideration to general policy recommendations according to our actual situation while not giving any consideration to those recommendations that are unrelated to treaty obligations.
 

(Translated by LU Dongmin)

 

* ZHANG Xuelian ( 张雪莲 ), Lecturer of the Law School, Southeast University, Doctor of law.

1. These resources include documents submitted by United Nations specialized agencies, such as the International Labor Organization, the World Health Organization and UNESCO, as well as reports submitted by non-governmental organizations and international human rights organizations.
 
2. Article 40, paragraph 1, of the International Covenant on Civil and Political Rights, Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, Article 35 of the Convention on the Rights of Persons with Disabilities, Article 44, paragraph 1, of the Convention on the Rights of the Child, and the Prohibition of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 19, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, Article 9, paragraph 1, of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 29, paragraph 1, of the International Convention for the Protection of All Persons from Enforced Disappearance, and Article 74, paragraph 1, of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

3. Opsahl, “The Human Rights Committee”, in The United Nations and Human Rights: 2 Critical Appraisal, Alston ed. (London: Clarendon Press, 1992), 383.

4. The purpose of this part of the concluding observations is to acknowledge that under certain extreme conditions the Government of a State Party may reduce its obligations to comply with the Convention, but it has also been questioned by some Committee members and scholars. The main reasons for the objectors are as follows: first, even under extreme conditions, State parties have many ways to mitigate their negative impact on human rights protection; second, some impediments to implementation are sometimes related to government actions or omissions, so it is difficult to distinguish between those impediments or the objects of concern.; third, the inclusion of this part may undermine the concerns and recommendations contained in the concluding observations and facilitate the State party’s resort to incapacity or force majeure. Michael O’Flaherty, “The Concluding Observations of United Nations Human Rights Treaty Bodies”, 6 Human Rights Law Review 1 (2006): 27 and 44.

5. Committee on Economic, Social and Cultural Rights: Consideration of Reports Submitted by States Parties
under Articles 16 and 17 of the Covenant: Australia, E/C.12/1993/9, 3 June 1993; Concluding Observations on Australia’s Fifth Periodic Report, E/C.12/AUS/CO/5, 11 July 2017.

6. Keratin Michele, “Treaty Bodies and the Interpretation of Human Rights”, 42 Vanderbilt Journal of Transnational Law 3 (2009): 905 and 923.
 

7. Michael O’Flaherty, “The Concluding Observations of United Nations Human Rights Treaty Bodies”, 27 and 36.

8. Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, UN Doc A/ES-10/273, 110, 112.

9. Surest v. Canada (Minister of Citizenship and Immigration) [2002] 1 S. C. R. 3, 2002 SCC 1, para. 72-73.
 
10. F, A L s/Media Autosatisfactiva, F 259 XLVI, 13 March 2012 (National Supreme Court of Justice, Argentina), paras. 12, 13, 26.

11. Attorney General (WA) v. Marquet, [2003] HCA 67, para. 176-177.

12. Walter Kalin, “Examination of State Reports”, in Henlen Keller and Geir Ulfstein ed.., UN Human Rights Treaty Bodies: Law and Legitimacy (London: Cambridge University Press, 2012), 48.

13. The Committee on the Rights of the Child: Concluding Observations on the Fifth Periodic Report of the Syrian Arab Republic, CRC/C/SYR/CO/5, PA ras.29, a), 44, b)

14. Eric Tistounet, “The Problem of Overlapping Among Different Treaty Bodies”, in The Future of UN Human Rights Treaty Monitoring, Alston and Crawford ed. (London: Cambridge University Press, 2000), 394.

15. Jones v. Saudi Arabia, [2006] UKHL 26; (2007-1 AC 270, UK, House of Lords, 14 June 2006, para. 23.

16. The concluding observations adopted by various committees in recent years are as follows: Committee on the Rights of Persons with Disabilities, Concluding Observations on China’s Initial Report (2012), Committee on the Rights of the Child, Concluding Observations on China’s Combined Third and Fourth Periodic Report (2013), Committee on Economic, Social and Cultural Rights. Concluding Observations on the Second Periodic Report of China (including Hong Kong, China and Macao, China) (2014), Concluding Observations of the Committee on the Elimination of Discrimination against Women on China’s Combined Seventh and Eighth Periodic Report (2014), and Concluding Observations of the Committee against Torture on China’s Fifth Periodic Report (2016), Concluding Observations of the Committee on the Elimination of Racial Discrimination on the Combined Fourteenth to Seventeenth Periodic Report of China (including Hong Kong, China and Macao, China) (2018).

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