7.1 Introduction
International human rights supervisory bodies often engage in human rights treaty interpretation when fulfilling their human rights monitoring tasks. Such tasks include considering individual and inter-State complaints, periodic State reports or adopting General Comments. When engaging in interpretation, such bodies may follow certain ‘methods’ of human rights treaty interpretation – including as (loosely) derived from Articles 31–32 of the Vienna Convention on the Law of Treaties (VCLT) or not.Footnote 1 In nearly all cases, however, bodies will refer to previous interpretative practices generated by themselves or by other bodies and accord to such interpretative practice considerable, great or even ‘authoritative’ weight.
This chapter examines the formal legal role of different ‘interpretative monitoring practices’ of international human rights bodies within the wider ‘practice of international human rights treaty interpretation’. With ‘practice of human rights treaty interpretation’ this chapter refers to the ongoing day-to-day efforts of independent international human rights supervisory bodies to provide meaning to human rights treaties under their supervision, often in response specific questions, situations or contexts. With the ‘interpretative practices’ of supervisory bodies, this chapter refers to the sizeable and diverse body of interpretative materials that are generated by such bodies through their diverse monitoring activities, and which is often attributed some ‘interpretative value’. Key examples of such interpretative practices include the statements made by United Nations (UN) human rights treaty monitoring bodies (UNTBs) in their Views, General Comments or Concluding Observations; or the contributions made by UN Special Procedures of the Human Rights Council through their voluminous body of (thematic) reports or communications. The chapter is premised on the understanding that the different ways in which international human rights bodies are called upon to engage in the development of the content of the treaties, and the wide variety and diversity of interpretative practice that results from this, is arguably unlike any other field of law. The breadth and variety of interpretative practices is rather unique, forming an amorphous body of guidance that is collectively shaping the (evolving) content of the legal framework. This chapter posits that the unique nature of these interpretative practices, both when taken individually and together, is perhaps not fully understood yet as a matter of international law.
By narrowing in on the role(s) of these practices in treaty interpretation, this chapter specifically responds to two recent studies of the United Nations International Law Commission (ILC) that aimed to elucidate the legal value of various ‘pronouncements of (human rights) expert bodies’. First, it recently discussed the ‘interpretative practices’ of human rights bodies as a possible form of ‘subsequent practice’ for treaty interpretation in the sense of Articles 31–32 VCLT.Footnote 2 Secondly, it currently considers them as ‘subsidiary means for the determination of rules of international law’ in the sense of Article 38 ICJ Statute. The chapter will incorporate and reflect on these studies and additionally considers several recent judgments of the International Court of Justice that embraced or rejected the use of interpretative practices by UNTBs and UN Special Procedures. Taking into account the ongoing debates in literature as well, it seems that scholarly and practioner’s opinions on the exact legal value or weight to be accorded to human rights bodies’ practices still differ considerably. In several respects, it even seems that they may possess some type of sui generis interpretative value, which is unique to human rights law and that is perhaps not yet well captured to date.
The main aim of this chapter then, is to analyze some of the different positions or approaches taken to date in literature (Section 7.1); by the ILC (Section 7.2); by the ICJ (Section 7.3) and to draw some conclusions as to the formal legal bases or conditions under which various practices could or should be taken into account in practices of human rights treaty interpretation. When or under which conditions may these practices be ‘thrown into the crucible’ of human rights treaty interpretation as part of a so-called single combined operation of treaty interpretation, along with other means to arrive at a ‘legally relevant’ interpretation?Footnote 3 The ‘crucible’ metaphor was notoriously introduced by the ILC in 1966 to highlight that a range of means of interpretation might be available and engaged for treaty interpretation and that the weight to be accorded to them may depend on the specific treaty (provision) and the interpreter involved.Footnote 4 In international human rights law, key interpretative means available will typically at least include: ‘the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’, as well as the principle of ‘good faith’ interpretation.Footnote 5 However, by now, it certainly also includes the vast and ubiquitous interpretative monitoring practices of a range of monitoring bodies that together incrementally develop the content of treaty norms over time. This chapter considers specifically which formal role the interpretative practices of the UNTBs and UN Special Procedures of the Human Rights Council could play and also points out that several criteria may be emerging that can help interpreters to determine how to weigh or take into account this body of interpretative guidance as part of the ‘single combined operation’ of treaty interpretation supported by the ILC.
Finally, as noted, the chapter specifically suggests that there may be a unique and still somewhat undefined quality to this body of interpretative work, which deserves to be better fleshed out and studied. Specifically, it posits that the interpretative practice generated by UN bodies might occupy some sui generis position as a means of interpretation, either within, or beyond the context of the VCLT or ICJ Statute. The ILC seems to be trying to articulate this special position through its currently ongoing study on the ‘subsidiary means for the determination of rules of international law’, but it is too early to tell at the time of writing whether the ILC’s conclusions will indeed offer conclusive guidance. This chapter will certainly offer some opinions of its own.
7.2 The Interpretative Practices of International Human Rights Bodies according to Literature
This section introduces and unpacks the different types of interpretative practices of independent UN human rights supervisory bodies, with emphasis on UNTBs and the independent UN Special Rapporteurs of the Human Rights Council. Special emphasis is placed on the ‘formal’ legal arguments that are presented by authors in relation to the legal value and weight to be attached to these practices, for example, by situating them in the context of Articles 31–32 VCLT or Article 38 ICJ Statute, or otherwise. It is noted that the interpretative value of different types of UNTBs monitoring practices has been rather well discussed in literature, although, seemingly, without any consensus on the formal role or position of these practices. Especially the formal role and place of Concluding Observations remains debated. In respect of the UN Special Procedures, it is increasingly recognized that also these bodies by now have engaged in ‘significant law-making and jurisprudential activities that are worthy of note and of systematization’.Footnote 6 These points will be further analyzed in this section.
7.2.1 Interpretative Practices of the UN Human Rights Treaty Bodies
Firstly, UNTBs typically consist of fifteen or more independently appointed experts working together on monitoring the implementation of a specific human rights treaty by States Parties. It is generally accepted that in order to fulfil their monitoring tasks adequately, UNTBs inevitably engage in acts of interpretation. For, it is impossible to assess or offer guidance on the implementation of vaguely worded treaty provisions otherwise.Footnote 7 The most important monitoring activities generating interpretative practices are UNTBs’ adoption of General Comments and Views and Concluding Observations following State reporting procedures.
7.2.1.1 General Comments
General Comments are often seen as offering some of the most important or ‘authoritative’ interpretative guidance to States parties, because their sole aim is to clarify the scope of rights and obligations following from treaty provisions. General Comments do this, in large part, by ‘synthesizing’ or ‘settling’ a wider body of interpretative practices generated by the monitoring activities of UNTBs, for example, in Views or Concluding Observations.Footnote 8
General Comments are typically sizeable documents adopted by consensus by the full UNTB, involving several rounds of careful drafting and consultations with States parties and other stakeholders.Footnote 9 Due to their robust aims and procedures, and because they are adopted by the ‘independent bodies especially established’ by States to monitor treaty implementation, General Comments tend to be referred to as ‘extremely useful jurisprudential tools’ and ‘enormously important as global jurisprudential resources’, which carry a ‘strong persuasive force’ as official or ‘authoritative interpretations of legally binding documents’.Footnote 10
A number of scholars argue that the principle of ‘good faith’ interpretation in Article 31(1) VCLT would oblige interpreters of human rights treaties to seriously ‘take into account’ the General Comments of UNTBs – along with possible other non-binding interpretative guidance of UNTBs, for example, in Views or Concluding Observations.Footnote 11 The principle of ‘good faith’ in Article 31(1) VCLT is thereby a first ‘formal’ legal ground for throwing these practices into the ‘crucible’ of human rights treaty interpretation.Footnote 12 Several scholars even go so far as to suggest that UNTBs’ interpretations come with ‘a presumption of correctness’: States or other actors would have to carefully justify why they would not follow the non-binding interpretative guidance developed by a UNTB on a given point.Footnote 13 Interpretations should generally be respected and explicit deviations must be well justified, again in good faith. Relevant justifications for deviating from UNTBs’ interpretations could include concerns about the quality of evidence, legal reasoning or justifications provided by bodies to arrive at certain progressive or conservative treaty interpretation.Footnote 14 Alternatively, UNTBs’ interpretative practices might plainly be consulted to help generally determine ‘the ordinary meaning of the terms in their context and in light of the object and purpose of the treaty’, including possibly with emphasis on the object and purpose of the treatyFootnote 15 Sections 7.4 and 7.5 address these points in some further detail.
General Comments are also positioned in literature as possibly relevant ‘subsequent interpretative practices’ under Articles 31(3)b and 32 VCLT, or as ‘teachings of highly qualified publicists’ or ‘judicial decisions’ in the sense of Article 38 ICJ Statute.Footnote 16 Each of these positions is further highlighted in Section 7.3, but UN ILC Rapporteur George Nolte noted on this point that Views share ‘certain elements in common with court decisions’, whereas General Comments are more akin to ‘teachings due to their general nature’ or might also ‘display features of jurisprudence or a settled case law’.Footnote 17
Whether General Comments would qualify as relevant ‘subsequent practice’ under Articles 31(3)b or Article 32 VCLT or fit in as subsidiary means under Article 38 ICJ Statute bears some legal relevance.Footnote 18 For, Article 38(1)d ICJ Statute states that the means listed in this provision ‘shall’ be applied by the ICJ.Footnote 19 The means listed in Article 31 VCLT also ‘shall’ be taken into account for treaty interpretation, but those listed in Article 32 VCLT ‘may’ be taken into account. Typically, only after the application of Article 31 VCLT still left the meaning unclear or ambiguous or in need of confirmation. Villiger opines that it would be ‘difficult to imagine situations where the means of Article 32 may not be employed’;Footnote 20 whilst Dörr considers that ‘it basically depends on the assessment of the interpreter’ whether certain materials ‘can reasonably be thought to assist in establishing the meaning of the treaty under consideration, and if it does, there are scarcely any clear limits to taking it into account under Article 32’.Footnote 21 To complicate matters further: the ILC is currently studying the possible interaction or overlap between means covered by Article 38 ICJ Statute and the VCLT.
All in all, the interpretative value of non-binding General Comments seems generally affirmed, but scholarly positions on their formal legal status within the context of the VCLT, ICJ Statute or otherwise differ considerably. Section 7.5 will reflect somewhat further on the question whether the exact formal qualification within the VCLT or ICJ Statute matters all too much.
7.2.1.2 Views
The non-binding Views adopted by the ‘quasi-judicial’ UNTBs are also generally seen as possessing strong interpretative legal value, although their exact legal status or place within the practice of human rights treaty interpretation is ambiguous too. Since Views are adopted to conclude on individual or Inter-State complaints procedures, they benefit from closely resembling the traditional category of ‘judicial decisions’ listed in Article 38(1)d ICJ Statute. It has also been argued that Views could be seen as relevant ‘subsequent interpretative practice’ that can enter into play based on Article 32 VCLT (see further Section 7.3).
Specifically, scholarship has supported the ‘judgment-like quality’ of Views, noting they are adopted in a ‘judicious spirit’ according to similar procedures normally followed by human rights courts for binding judicial decisions.Footnote 22 Andenas and Leiss further argue that the term ‘judicial decisions’ in Article 38 ICJ Statute (by now) should be understood broadly, that is, to include various ‘quasi-judicial’ monitoring outputs such as Views and General Comments.Footnote 23 Sections 7.3 and 7.4 show that the ILC may be inclined to follow this view in its new study and that the ICJ has referred to both Views and General Comments as constituting the ‘case-law’ or ‘jurisprudence’ of the Human Rights Committee.Footnote 24
Arguably, very few scholars would by now reject the formal legal interpretative value of Views of UNTBs, even if the exact legal basis for taking them into account is not entirely settled. The ILC study on Article 38 ICJ Statute will likely clarify their status as forming part of the category of ‘judicial decisions’ specifically.
7.2.1.3 Concluding Observations
Literature is most divided about the legal interpretative value of Concluding Observations, despite these interpretative practices constituting the most voluminous body of UNTBs’ day-to-day ‘jurisgenerative’ monitoring practice.Footnote 25 Some argue that Concluding Observation’s interpretative role and ‘jurisprudential impact is marginal and exceptional’ at first glance, even though both governments and NGOs accord great de facto legal importance to them.Footnote 26 Others are more optimistic, noting that they are ‘the single most important activity of human rights treaty bodies’ and despite their non-binding status, ‘have considerable authority in so far they pronounce on violations and otherwise offer interpretations of how uphold treaty provisions’.Footnote 27 Shelton argues that concluding observations may represent ‘the consensus of the Committee on how provisions in the treaty should be interpreted and applied’.Footnote 28 According to her, Concluding Observations may include legal determinations on whether certain situations comply with the treaty, and as such they can carry general interpretative significance for all parties, especially if they are precisely drafted and reasoned.Footnote 29 Unfortunately, the latter is not always the case, although the prescriptive quality and thus the interpretative value of Concluding Observations seems to have improved over time.Footnote 30
Formally, Concluding Observations are probably best seen as a ‘supplementary means’ of treaty interpretation under Article 32. As a single statement, a concluding observation is typically only a short statement issued against a single State; it is not (yet) a General Comment that reflects a more ‘settled position on a question of interpretation’ for the benefit of all States Parties.Footnote 31 At the same time, General Comments are often based on a large and consistent body of Concluding Observations issued in response to matters raised by governments and civil society during State reporting procedures over a period of time. This author strongly supports the argument that a series of Concluding Observations, that is, reaffirming certain specific interpretations of a treaty over time, can carry considerable interpretive value, especially when seen in conjunction with reactions by States.Footnote 32 In addition, one or a few Concluding Observations could arguably indicate a new direction of interpretation, especially when sufficiently precisely formulated.Footnote 33
Finally, Creamer and Simmons recently found, based on an extensive study of European and Inter-American human rights court judgments, that these regional courts ‘frequently’ refer to all three types of UNTB interpretative practices when interpreting their own treaties (i.e. Views, Concluding Observations and General Comments). Concluding Observations are most commonly cited, whilst Views and General Comments have enjoyed more attention over time.Footnote 34 They additionally note that UNTBs’ interpretations are seldom a definitive factor in developing new interpretations of European or Inter-American treaties. They are used to support a wider practice of interpretation, including by ‘confirming’ interpretations or affirming ‘consistency’ of interpretation.Footnote 35 Dissenting and separate opinions of regional human rights judges especially ‘heavily’ draw on all three types of interpretative practices ‘to establish applicable international law standards and to help clarify the legal reasoning in the majority judgment’.Footnote 36
All in all, human rights scholarship strongly supports the legal interpretative value of different UNTBs monitoring practices, even if some unclarity remains about their exact formal legal status or role within the wider context of international law or international human rights law as a sub-branch. In fact, a final option has not been sufficiently mentioned yet, which is that due to the special nature and role of international human rights treaties, and their independent supervisory bodies, as well as in light of the old (perhaps outdated) texts of the VCLT (1969) and ICJ Statute (1945), the wealth of interpretative practice of human rights bodies developed since then may not fit these old frameworks well. We will explore the contributions to this debate by the ILC and ICJ recently in the following sections, noting that the ILC especially is seeking to provide a thorough evolutive update of Article 38 ICJ Statute in light of the wealth of legal developments found across different fields of public international law since 1945. Another important question to be unpacked after all these considerations is whether all interpretative practices of UNTBs carry equal interpretative value or weight. Instead, should one or more be seen as ‘primus inter pares’ – for example, General Comments or Views? If so, how to accord weight to specific practices?
7.2.2 Interpretative Practices of the UN Special Procedures of the Human Rights Council
The UN Special Procedures of the Human Rights Council are typically appointed as single independent experts working on a specific human rights issue or country over a longer period of time. They derive their monitoring mandates from the UN Charter and their contributions to interpretation of specific human rights treaties seem even more under-theorized than UNTBs practices. Recently, some scholarly work has turned its attention to their contributions more firmly,Footnote 37 but ILC seems to overlook their interpretative work entirely in its studies on the VCLT and ICJ Statute. The ICJ has referred to Special Procedures’ work on occasion.
The most important monitoring practices of Special Procedures generating interpretative statements include: annual thematic reports to the Human Rights Council and UN General Assembly, the (joint) communications of Special Procedures to States and other relevant stakeholders about complaints on human rights abuses, country mission reports and the adoption of general guidelines or principles on thematic issues.Footnote 38 There is evidence that the work of UN Special Procedures is regularly consulted by international and regional human rights treaty supervisory bodies when applying their treaties, both in relation to the establishment of facts and the application and interpretation of human rights in the context of relevant facts.Footnote 39 In fact, according to Domínquez Redondo, the work of UN Special Procedures in terms of (authoritatively) clarifying the scope of existing norms in response to new issues or contributing to the creation and consolidation of (new) international human rights standards is ‘one of their least contested activities’ by now.Footnote 40
An important first question for evaluating Special Procedures’ contributions to treaty interpretation is how these bodies are relevant to the interpretation of the nine core UN human rights treaties supervised by UNTBs. At least institutionally, these UN Charter-based bodies are further removed from such treaties than the ‘specially established’ UNTBs.Footnote 41 This question was resolved through the adoption of UN HRC Resolution 5/1 on Institution Building (2006), which established the new UN Human Rights Council to succeed the Commission on Human Rights, along with UN HRC Resolution 5/2 on the Code of Conduct for the Special Procedures and their own Manual.Footnote 42 Accordingly, all Special Procedures mandate holders shall establish facts based on objective, reliable and credible sources of information, including any information provided by States, and evaluate such information ‘in the light of internationally recognized human rights standards relevant to their mandate, and of international conventions to which the State concerned is party’.Footnote 43 This clearly affirms their mandates in relation to UN human rights treaty monitoring.Footnote 44 Various scholars also note the valuable contributions made by UN Special Procedures over time, including to ‘defining the normative content of economic, social and cultural rights and the correlative States’ obligations, as well as to the development of interpretative instruments’.Footnote 45 Examples of guidelines or principles that are widely regarded as key standard-setting documents in international human rights law, with far-ranging legal impacts, include the UN Guiding Principles on Internal Displacement or UN Guiding Principles on Business and Human Rights.Footnote 46
The adoption of Annual Thematic Reports is one of the most comprehensive ways in which UN Special Procedures contribute to the clarification of human rights norms. Their thematic reports tend to be sizeable and dense resources on specific ‘legal aspects’ that are highly ‘informative’ for the purposes of understanding the content of specific human rights in relation to specific issues.Footnote 47 Thematic reports may synthesize relevant previous (international) interpretative practices or (national) state practices but also offer novel interpretations.Footnote 48 In some cases, mandates are specifically charged to progressively develop the content of certain rights, for example, the right to water. Occasionally, reports will develop new sets of guidelines or principles. The Special Procedures Manual requires reports to be based on ‘thorough research’ and encourages ‘replies to questionnaires or other requests for information transmitted to governments, United Nations agencies, NGOs, treaty bodies, regional organizations, other experts, or partners’.Footnote 49 This also ensures the interaction with States and the incorporation of States’ views on how the norm should be interpreted.
Another important means through which UN Special Procedures endorse or provide interpretations of human right treaty norms are their (joint) ‘communications’ issued in response to credible complaints about human rights abuses from the public. This activity tends to be somewhat overlooked in human rights literature, potentially because this body of work was not well publicized in accessible databases until recently. However, the Special Procedures communications database, launched on the website of the Office of the High Commissioner on Human Rights (OHCHR) in 2017, indicates that over 8,600 communications were issued to States and other actors, since 2010 alone.Footnote 50
Communications are typically issued as a ‘letter of allegation’ (AL) or an ‘urgent appeal’ (UA) to States or other actors accused of human rights violations based on credible and detailed information from victims or civil society organizations. A communication may be issued individually or jointly by Special Procedures, depending on the type of expertise needed to respond to the complaint adequately. The communication will set out alleged facts, explain which legal frameworks are applicable to the situation and how (e.g. treaty provisions, General Comments, soft law standards) and formulate a range of questions to respondents about how human rights were guaranteed (or not). These questions also offer guidance about what may be required of States or others to implement certain treaty norms.Footnote 51 Communications may also ‘ask that the violations are prevented, stopped, investigated, or that remedial action is taken’.Footnote 52
All in all, the interpretative value of these communications can thus be rather high, as they include legal statements on whether certain situations comply with treaty norms or not. Respondents are also invited to reply to the allegations, which may or may not occur; their replies are sent to the Human Rights Council and put on public record. In quite a few cases, States do not seem to respond, and the procedure ends with questions unanswered. According to the Office of the High Commissioner for Human Rights (OHCHR) website, ‘the complaints procedure of the Special Procedures is not a quasi-judicial procedure, and the Special Procedures do not have power or authority to enforce their views or recommendations.’Footnote 53 The latter, of course, counts for most human rights supervisory bodies in international law.
In terms of legally characterizing the interpretative statements of UN Special Procedures, it is likely that most of them count as ‘supplementary’ or ‘subsidiary’ means for determining the content of human rights treaties in the sense of Article 32 VCLT or Article 38(1)d ICJ Statute. Similar to the work of UNTBs, an argument can be made that a ‘good faith’ interpretation of human rights treaties requires interpreters to take into account the available interpretative guidance of UN Special Procedures on a specific treaty norm. An argument could further be made that especially the thematic reports of Special Procedures could be seen as works of ‘highly qualified publicists’: rapporteurs are often eminent human rights experts and scholars, and their reports tend to be the size of journal articles and well researched.Footnote 54 Some Special Procedure mandates also exist as entire Working Groups, and the communications of Special Procedures are often issued by several of ‘eminent’ experts jointly.Footnote 55 This could reinforce their interpretative value as the joint opinions of a group of highly qualified experts. Of some interest is whether communications of Special Procedures could be viewed as ‘judicial decisions’ in the sense of Article 38 ICJ Statute, which the court ‘shall apply’. There is limited discussion on this point in the literature or in the work of the ILC or ICJ, so far (see further Sections 7.3 and 7.4).
Preliminary research of the case-law of the European Court of Human Rights (ECtHR) suggests that communications are consulted by this Court – alongside country reports, thematic reports and standard setting documents.Footnote 56 In fact, the ECtHR even expressly considered that the communications of the UN Working Group on Arbitrary Detention (WGAD) constitute ‘a procedure of international investigation or settlement within the meaning of Article 35(1) ECHR’, sharing ‘many similarities to that before the United Nations Human Rights Committee’ and ‘akin, from both a procedural perspective and in terms of its potential impact, to the individual application provided for by Article 34 of the Convention’.Footnote 57 The communications procedure of the WGAD is slightly more formalized than those of other Special Procedures,Footnote 58 so it may not be possible to generalize this conclusion for all UN Special Procedure communications. However, these considerations deserve attention by the ILC in its ongoing study on the nature and scope of ‘subsidiary means’ under Article 38 ICJ Statute.
In conclusion, scholarship is highly supportive of the fact that the work of the UN Special Procedures can and has made valuable contributions to the interpretation of international human rights treaty norms, even if their work may not share the same ‘quasi-judicial’ characteristics as that of UNTBs. The chapter now turns to recent views on the value of these interpretative practices by the ILC and ICJ, respectively, including some further reflections on the legal grounds and/or conditions they are ascribed ‘great weight’ in interpretation.
7.3 Interpretative Practices of International Human Rights Bodies according to the ILC
The ILC has recently been studying the formal legal interpretative value of UN human rights bodies’ monitoring practices in two separate studies. Firstly, between 2008 and 2018 it considered the meaning of ‘subsequent agreements and practice’ under Articles 31 and 32 VCLT.Footnote 59 Secondly, since 2022 it studies ‘subsidiary means for the determination of rules of international law’ under Article 38 of the ICJ Statute. So far, both studies focus mostly on the work of UNTBs, as State-created (independent) expert bodies especially established to monitor a treaty.Footnote 60 The ILC seems to readily accept that Views, General Comments and Concluding Observations ‘often, explicitly or implicitly, interpret the treaty’ and therefore all deserve consideration.Footnote 61 However, its first study did not consider the work of the UN Special Procedures at all; and a preparatory memorandum for the study on Article 38 prepared by the ILC Secretariat only briefly notes that the work of UN Special Procedures is occasionally referred to by some judicial bodies, for example, when interpreting the term ‘torture’.Footnote 62 It is still unclear whether the study on Article 38 ICJ Statute will embrace Views, General Comments and Concluding Observations in equal measure – or perhaps focus on the former two – and will come to include the work of UN Special Procdures. This chapter argues that their work should be part of the study.
The following paragraphs show and discuss how the ILC has obviously been struggling to qualify the legal value of various interpretative monitoring practices of human rights expert bodies in the practice of human rights treaty interpretation. In part, this struggle is caused by the general unclarity on the use of their work in legal practice and literature.
7.3.1 ‘Subsequent Practice’ in Light of Articles 31–32 VCLT?
According to Article 31(3)b VCLT, acts of treaty interpretation shall take into account relevant existing ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. Obviously, the practices generated by UNTBs or UN Special Procedures do not, strictly speaking, ‘establish the agreement of the parties’.Footnote 63 At most, General Comments and thematic reports of UN Special Procedures might be based on or reflect such practices. In both cases, input from States may be actively invited.
According to the ILC, pronouncements of UNTBs cannot generally be understood as constituting ‘subsequent practice’ under the VCLT; instead, they ‘may give rise to, or refer to, a subsequent agreement or subsequent practice by parties in Article 31, paragraph 3, or subsequent practice under article 32’.Footnote 64 More specifically, a pronouncement may ‘give rise to’ States’ practices when parties react to the pronouncement in some form or other; in this scenario, a General Comment, View or Concluding Observation may act as a ‘catalyst for the subsequent practice of States parties’.Footnote 65 Alternatively, pronouncements may ‘refer’ to subsequent practice of States when a certain practice and/or a possible agreement of the parties has ‘developed before the pronouncement’ and the body indicates that practice or agreement.Footnote 66 The ILC explicitly clarifies that parties’ silence cannot be ‘presumed to constitute subsequent practice under article 31, paragraph 3 (b)’: for ‘it cannot usually be expected that States parties take a position with respect to every pronouncement by an expert treaty body’, especially when they are ‘addressed to another State or to all States generally’.Footnote 67 It is unclear whether their ‘silence’ could be a form of practice to be taken into account more loosely for purposes of interpretation under Article 32; a point that is debated in literature as well.Footnote 68 Moeckli argues that a relevant interpretative practice of UNTBs would have to be ‘actively shared by at least some States parties and acquiesced in by the others’; whereas Ssenjonyo opines that the lack of (negative) responses to CESCR General Comments would indicate a ‘wide acceptance’ of them.Footnote 69 The ILC does not offer concrete examples of how Views, Concluding Observations or General Comments might ‘refer’ to a State practice or agreement, so it is not easy to determine under what conditions certain interpretative statements could be considered to genuinely reflect or refer to a pre-existing practice or agreement.
All in all, it is thus uncertain under which circumstances a General Comment, Thematic Report or Communication might meet the (seemingly) strict threshold of the ILC’s definition of a relevant ‘subsequent practice’ under Articles 31 and 32 VCLT. Indeed, the ILC is even somewhat unclear about whether UNTBs statements might be seen as relevant ‘subsequent practice’ under Article 32 VCLT. The ILC takes a rather ‘State-centric’ interpretation of the concept of ‘subsequent practice’, although States are only mentioned in Article 31 VCLT but not Article 32 VCLT. In 2004, the International Law Association’s Committee on Human Rights Law and Practice noted on this point that a less ‘traditional’ State-oriented reading of the VCLT would support a broader understanding of the notion ‘subsequent practice’. Especially in light of the special nature of human rights treaties – which involve ‘third-party beneficiaries and an independent monitoring mechanism’ – the ‘considered views’ of UNTBs adopted while performing ‘the functions conferred on them by the States parties’ could be seen as ‘subsequent’ interpretative practice under Article 31(3)b.Footnote 70 The ILC does not seem to follow this more liberal reasoning.
Evidently struggling to explain how UNTB’s interpretative statements might be relevant to treaty interpretation nonetheless,Footnote 71 the ILC finally concluded that this particular study is ‘without prejudice to the contribution’ such statements might ‘make to the interpretation of the treaties’ otherwise, for example, ‘under their mandates’.Footnote 72 It acknowledged several other options mentioned in literature and practice, including as another type of ‘supplementary means’ under Article 32 VCLT or based on Article 38 ICJ Statute. The latter is under debate by the ILC.
7.3.2 ‘Subsidiary Means’ in Light of Article 38 ICJ Statute?
Article 38 ICJ Statute states that the ICJ ‘shall apply’ as ‘subsidiary means for the determination of rules of law’ so-called ‘judicial decisions’ and ‘teachings of highly qualified publicists of the various nations’. The ILC Drafting Committee clarifies that these subsidiary means are not a source of international law in themselves; they are ‘mainly resorted to when identifying, interpreting and applying the rules of international law derived from the [primary] sources of international law’, including treaty law and customary law.Footnote 73 This obviously affirms an ‘interpretive function’ for these means and thereby suggests a potential overlap with the means listed in the VCLT, which still needs to be further defined and settled.Footnote 74
According to ILC Rapporteur Mr Jalloh, there is ‘broad support’ amongst ILC members to include the ‘decisions of international human rights treaty bodies’ within the scope of this study, either ‘as judicial decisions or under a separate category’.Footnote 75 The ILC Secretariat’s background memorandums also includes an extensive analysis of the manner in which human rights treaty bodies have used their own and other bodies’ interpretative practices to date.Footnote 76 It seems generally supported that the Views of UNTBs (as ‘quasi-judicial bodies’) fall in the category of ‘decisions of courts and tribunals’.Footnote 77 Indeed, at first sight, the ILC Drafting Committee may be aiming to considerably reframe the notion of ‘judicial decisions’, accounting for the wide variety of ‘decisions’ made by modern monitoring bodies. The conclusions provisionally adopted on Article 38 ICJ Statute read that:
Subsidiary means for the determination of rules of international law include:
(a) decisions of courts and tribunals;
(b) teachings;
(c) any other means generally used to assist in determining rules of international lawFootnote 78
The most recent report by rapporteur Jalloh of January 2025, shows that some states, including China, have pushed back on including decisions of human rights bodies as subsidiary means generally, or characterizing them as judicial or quasi-judicial decisions specifically.Footnote 79 Yet, after hearing the various contradictory opinions of States, Rapporteur Jalloh maintains his view that decisions of UNTBs fall under the notion of decision.Footnote 80 In addition, he added some further clarifications, such as that the work of ‘State-created’ expert bodies, like UNTBs, should generally be seen as ‘separate from teachings’.Footnote 81 At the same time, in a separate section devoted to UNTBs’ work, he also notes that General Comments may actually possess a ‘dual character’ between teachings and decisions, and as such they are not ‘necessarily in one category’.Footnote 82 Concluding Observations are not really discussed, but he notes that the range of activities of UNTBs varies and that the functions and characterization of the different outputs generated therefore may also differ.Footnote 83 No clear conclusions are presented about where each type of interpretative practice fits. As previously noted, the work of UN Special Procedures seems entirely ignored. The currently proposed draft conclusion on expert bodies plainly reads that ‘a pronouncement of an expert body may serve as a subsidiary means for the determination of the existence and content of rules of international law’; this is ‘without prejudice to their use for other purposes’.Footnote 84
Finally, the last category, ‘other means’, is of course of particular interest too. I suggests the ILC may be after a thorough update of the categories of subsidiary means that ‘shall be applied’ to understand or interpret the scope and content of international law.Footnote 85 Recognizing that the list of sources in Article 38 ICJ Statute is ‘not necessarily exhaustive’, the ILC Rapporteur even suggests that certain subsidiary means could ‘serve as an independent basis for rights and obligations for the subjects of international law’ and function as means for ‘interpreting or complementing the rules of international law, including addressing lacunae in the law or advancing the coherence or the systemic nature of international law as a legal system’.Footnote 86 It refers here explicitly to ‘judicial decisions’ and ‘decisions of expert bodies’ but notes that this aspect needs to be further studied and that courts also refer to each other’s interpretative practices to fill gaps or ensure consistency interpretations.Footnote 87 These comments have led to a range of critical comments by States, which the rapporteur is now working through, although he seems to favour a broader understanding of the ‘auxiliary’ use of subsidiary means.Footnote 88 This includes an understanding – informed by the drafting history of Article 38 ICJ Statute and ‘reality of international legal practice’ – that certain subsidiary means may help to ‘mould, shape or even develop international law’.Footnote 89
It will be of great interest to the field of international human rights law to see how the various ‘subsidiary means’ will be defined over the coming years. They clearly might come to include different types of statements of UNTBs.Footnote 90 This author argues that in light of the discussions in Section 7.2.2, it would be highly appropriate to consider the work of UN Special Procedures of the Human Rights Council too.
Importantly, it is of interest that the ILC so far suggests that ‘pronouncements’ of expert bodies may fit into a variety of categories under Article 38 ICJ Statute, and that their interpretative practices may hold some still undefined sui generis position as a means of interpretation or source of obligations in human rights law.
7.4 Interpretative Practices of Human Rights Bodies according to the ICJ
Finally, the ICJ has perhaps struggled most with according a certain legal interpretative value to UN human rights monitoring bodies’ work and formally clarifying their legal status. A first important observation is that the ICJ actually takes various types of interpretative practices of international monitoring bodies ‘into account’ when interpreting specific human right treaties. It emphasizes General Comments and Views of UNTBs but also refers to Concluding Observations or findings of UN Special Rapporteurs. The ICJ has argued that while it is not legally obliged to follow the interpretations offered by ‘other’ supervisory bodies, it ‘must take due account’ of the legal interpretations offered by ‘independent bodies which have been specifically created’ to monitor the application of specific treaties, and ‘it should ascribe great weight’ to them.Footnote 91
Thus, in the Wall Opinion (2004), the ICJ considered the content of General Comments, Views and Concluding Observations equally, without clearly distinguishing which may be more or most important or ‘authoritative’.Footnote 92 In Ahmadou Diallo (2010) it noted that the Human Rights Committee ‘built up a considerable body of interpretative case law’, referring both to its Views and General Comments.Footnote 93
However, the ICJ notoriously does not explicitly clarify on which legal grounds it takes into account or ascribes great weight to various interpretive practices.Footnote 94 In Ahmadou Diallo, the ICJ has been most explicit about its reasons, notably: ‘the point’ of consulting the practice of the Human Rights Committee is to ‘achieve the necessary clarity and essential consistency of international law, as well as legal security’.Footnote 95 It argued that both ‘individuals with guaranteed rights’ and States parties are ‘entitled’ to this.Footnote 96 According to some, this shows support for a ‘systemic argument’ regarding the importance of promoting ‘legal certainty’ or ‘unity of law’.Footnote 97 This point is also highlighted in ILC Rapporteur Jalloh’s latest report, addressing the role of subsidiary means in striving for unity of legal interpretations.Footnote 98
Problematically, the weight attached to interpretations of UNTBs and Special Procedures by the ICJ differs considerably from case to case, often without much explanation.Footnote 99 This reflects poorly on the quality and interpretative legal value of ICJ case-law in this respect. For instance, in its two Advisory Opinions on Israel (2004 and 2024), the ICJ widely refers to a range of interpretative practices of UN bodies to find violations of international human rights law; whilst in the Chagos Advisory Opinion (2019), it only tangentially cites Concluding Observations of the Human Rights Committee to the UK, that is, as part of a wider pattern of argumentation or factual context.Footnote 100 In the Policies and Practices of Israel-opinion (2024), the ICJ even seems to go as far as largely substituting its own assessments of violations of treaty obligations for findings by different UNTBs. In this advisory opinion, it cites several CERD Concluding Observations to Israel to affirm that the CERD applies extraterritoriality to occupied territories, which are seen as ‘territories under jurisdiction’,Footnote 101 as well as several Concluding Observations of the CERD Committee and Human Rights Committee to support ‘the view that Israel’s residence permit policy is inconsistent with its obligations under CERD and the ICCPR’, resulting ‘in the differential treatment of Palestinians in relation to their right to reside in East Jerusalem’.Footnote 102 Similarly, it cites several CERD and ICESCR Concluding Observations to support that the residence permit policy violates the ‘right to family life, as guaranteed under Article 10 of the ICESCR and Article 17 of the ICCPR’.Footnote 103
On the contrary, in two recent contentious cases on CERD, Qatar v. United Arab Emirates (2021) and Ukraine v. Russia (2022), the ICJ took rather evasive stances and deviated from interpretations of the CERD Committee without any meaningful justification or engagement with its actual pronouncement. This was heavily critiqued by several judges and in literature.Footnote 104
In Qatar v. United Arab Emirates, the ICJ at least still paid lip service to the idea of ‘ascribing great weight’ to the interpretations of CERD, but it ultimately only indicated that it ‘carefully considered’ the CERD interpretations but arrived at its own interpretations.Footnote 105 There was little discussion of why it dismissed them. More generally, the interpretative approach of the ICJ in this judgment is somewhat bewildering. For the ICJ seems to deliberately place its consideration of CERD practice outside the VCLT framework. The judgment is structured in such a way that the interpretation of Article 1 CERD takes place through a fairly elaborate consideration of the three elements in Article 31 VCLT (i.e. ordinary meaning, context, object and purpose), followed by a fairly reluctant recourse to the travaux preparatoires of CERD as a ‘subsidiary means of interpretation’ under Article 32 VCLT. Only then, the work of CERD is ‘considered’. According to the ICJ:
the Court will interpret CERD […] by applying the rules on treaty interpretation enshrined in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. […] The Court will interpret the term “national origin” by reference, first, to the elements set out in Article 31 of the Vienna Convention […] which states the general rule of treaty interpretation. Only then will the Court turn to the supplementary means of interpretation provided for in Article 32 in order to confirm the meaning resulting from that process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable result. The Court will also examine the practice of the CERD Committee and of regional human rights courts.Footnote 106
Several ICJ judges critiqued this approach. For example, Judge Robinson saw no reason ‘why the Court should not attach great weight to the recommendations of the CERD Committee (which is properly seen as the guardian of the Convention), if they are not in conflict with international human rights law or general international law’.Footnote 107 Doing so would ‘promote the achievement of the clarity, consistency and legal security’ aspired to by the Court in Ahmadou Diallo.Footnote 108 He regrets that the majority did not follow the CERD Committee’s recommendation, nor offer ‘any explanation for not following it’.Footnote 109 Judge Bhandari similarly notes that the majority seems to break with the ICJ’s previous jurisprudence of ‘ascribing great weight’ to the interpretative practice of monitoring bodies and ‘provides no compelling reason as to why it has chosen to depart from the reasoning’ of the CERD Committee or failed to attach great weight to it.Footnote 110 In defence of CERD’s interpretative practice, Judge Bhandari addresses the functioning and work of the Committee in detail. This includes its ‘primary function’ of analyzing and commenting on State reports and its related practice of ‘establishing certain rules in dialogue’ with the parties, as well as its ‘judicial’ approach to matters.Footnote 111 He also calls this committee a ‘guardian of the convention’.Footnote 112
Unfortunately, none of the judges point to a clear legal ground for ‘ascribing great weight’ to CERD practice – except for Judge Bhandari. He considers that the independent Committee Members ‘fall into the category of the “most highly qualified publicists” in this field’,Footnote 113 thus invoking the notion of ‘teachings of highly qualified publicists’ under Article 38 of the ICJ Statute.
Significantly, several judges noted that the ICJ appears to have misrepresented the legal argument that Qatar presented about (indirect) discrimination and potentially also the CERD Committee’s line of reasoning on indirect discrimination to date.Footnote 114 In this sense, it is vital to ensure that the ICJ, as a general court of law, has a sound understanding of the Convention that it is interpreting, including the (nuanced) interpretative practices developed by a dedicated expert body over a long period of time. The CERD Committee interprets its treaty through day-to-day practice of regularly and consistently engaging with the Convention, its States parties, beneficiaries and the various situations put before it. This seems to be the main message of Judge Bhandari too: the ICJ must tread with caution in providing (one-off) interpretations of human rights treaties, that other bodies have devoted a lifetime of practice to. There may be many interpretative nuances that are missed. Indeed, other judges called out the largely ‘theoretical’ and abstract definitional exercise of the ICJ in Qatar v. UAE.Footnote 115 An important question is then whether the ICJ has engaged in ‘good faith’ interpretation under Article 31 VCLT by dismissing the work of the CERD Committee as it did. At a minimum, the ICJ and the parties should have engaged with the substance of arguments or interpretations made by the committee, but they did not.
Finally, in Ukraine v. Russia (2024), similar concerns of misunderstanding of parties’ arguments played a role, with this judgment largely ignoring available interpretative guidance of UN bodies invoked by Ukraine, including from the CERD Committee.Footnote 116 Throughout this judgment, CERD pronouncements are mostly referred to by the ICJ in relation to issues of fact – thereby avoiding statements on their legal interpretative value. This was again critiqued by some judges and in academic debate; the outcome of this case could have been swayed in another direction had the ICJ followed the concept of (intersectional) indirect discrimination set out by CERD in its General Recommendations more closely.Footnote 117
Dissenting judges agreed that the General Comments of the CERD Committee – which Judge Charlesworth calls ‘the independent body established specifically to supervise the interpretation and application of CERD’ – provide relevant requirements for assessing indirect discrimination; and the same counts for the interpretative practices of other treaty bodies and courts that supervise ‘comparable’ non-discrimination provisions, for example, Human Rights Committee, the ICESCR Committee, the CEDAW Committee and European and Inter-American Court of Human Rights.Footnote 118 This suggests that these judges support a ‘systemic approach’ to the interpretation of similar treaty terms. Indeed, Judge Iwasawa explicitly favours an interpretation that ‘is consistent with the notion of indirect discrimination adopted by other international human rights courts and treaty bodies’.Footnote 119 He supports taking into account interpretative practices related to ‘analogous non-discrimination provisions’ in search of ‘similar interpretations’,Footnote 120 rather than relying solely on the ICJ’s own judgment in the matter. Iwasawa thus favours searching for ‘unity’ in the interpretation of similar terms, even across a wider range of treaties than the one under review.
Escobar has recently suggested that the ICJ’s dismissal of UNTBs interpretations could stem from the (occasional) criticism that expert bodies’ interpretations may be too bold or lack ‘rigorous legal and methodological’ analysis or justifications.Footnote 121 Yet, omitting any meaningful engagement with the pronouncements of UNTBs, either by dismissing them without reason or, instead, referring to them plainly as evidence of certain violations, will not help to move such critiques forward. It only aggravates them. In addition, it is worthwhile to note that ICJ judgments may base its interpretation of a specific provision only on the arguments of a small number of concerned parties; UN expert bodies typically arrive at their interpretations through much more extensive and prolonged engagement or ‘dialogue’ with a range of different parties, including those benefitting from treaty norms. This author argues that deriving from the rather unique nature of the monitoring work of UN expert bodies, also a more nuanced sui generis position could be carved out for them. This argument is further elaborated below.
7.5 ‘Thrown for a Loop’ or ‘Thrown into the Crucible? Reflections on the Legal Value of Various Interpretative Practices
The preceding analysis clearly shows a rather mixed assessment of the ‘formal’ legal value or weight to be accorded to the interpretative practices of UN human rights monitoring bodies in international law. Whilst there seems to be a broad agreement that ‘specially mandated’ expert bodies play an important role in treaty interpretation, the exact legal ground(s) for ‘taking into account’, ‘ascribing great weight’ or using them otherwise (‘in good faith’) still remains somewhat shrouded in legal mystery.
The growth and ubiquity of these interpretative practices after the adoption of the VCLT (1969) and ICJ Statute (1948) means that it has become imperative to consider on which basis, or under which conditions, such interpretations should or must play any authoritative, supplementary, subsidiary, auxiliary or other type of role in providing interpretations of treaties. How might they assist with determining the (ordinary) meaning of treaty terms ‘in their context and in light of the object and purpose of the treaty’, over time?Footnote 122 In the words of ILC Rapporteur Jalloh, the question whether the various practices serve a role as ‘subsidiary means’ in the sense of Article 38 ICJ Statute is ‘ripe for discussion’.Footnote 123
As evident from the analysis above, the monitoring practices of different bodies have been variously framed as potentially entering into play under Articles 31 and 32 VCLT (e.g. good faith interpretation, supplementary means or for even systemic interpretation by referring to practices of other bodies interpreting similar norms) or Article 38 ICJ Statute (judicial decisions, teachings or other). They have also been used or ignored without much clarification at all by the ICJ, and there are some indications that they occupy some special sui generis position, either outside the VCLT or within Article 38 ICJ Statute, which is not yet fully articulated to date. Of importance in this respect could be the special way in which interpretative practices of UN human rights bodies come about ‘in dialogue with the parties’ and other beneficiaries over a long period of time and through a variety of monitoring activities.Footnote 124
This chapter has not analyzed how international and/or regional human rights bodies themselves have engaged with their own and others’ interpretative practices in any detail. However, it is doubtful that an unambiguous picture would emerge from such study.Footnote 125 At present, the ILC seems to be the body mostly clearly and structurally considering their legal value/status/weight. Yet the ILC also admits it has been somewhat limited by the specific topics through which these practices are studied so far. This author is of the opinion that, ultimately, the exact legal status or place of these interpretative practices within the VCLT, Article 38 ICJ Statute or otherwise, may not be the most vital legal question. Instead, this author wants to draw attention to a somewhat more pragmatic line of reasoning that may help to decide which and how certain practices might be ‘thrown into the crucible’ of treaty interpretation, as well as weighted as part of a larger ‘single combined operation’ of treaty interpretation. For, even if it were possible to establish exactly which interpretative practices may or must be taken into account, there may still be additional questions about the overall or specific usefulness of any specific set of Views, General Comments, Concluding Observations, reports etc. In particular, it has been suggested that the interpretative value of specific interpretative statements by UNTBs and Special Procedures may depend on a number of additional factors, which have also been recognized by the ILC and may need to be considered on a case-by-case basis.Footnote 126
The ILC recently has begun to formulate several criteria that interpreters may use to pick, weigh and/or emphasize different available means of interpretation. Specifically, it affirmed that the ‘means of interpretation’ listed in Articles 31 and 32 VCLT may be differently emphasized by interpreters ‘depending on the treaty or treaty provisions concerned’, including the ‘character of the treaty or provision’.Footnote 127 The weight to be accorded to different available means of interpretation under Article 31 and 32 VCLT collectively, may depend, inter alia, on the clarity and specificity of a practice (e.g. ‘sufficiently concrete’) or on ‘whether and how it is repeated’ (unmindful, with intention, frequency, uniformity).Footnote 128 These criteria are not intended to be exhaustive,Footnote 129 and the ILC previously mentioned cogency and consistency amongst means found their direct relevance to the treaty term or the number of parties involved in the evolution of particular means.Footnote 130
Recently, the ILC’s study on Article 38 ICJ Statute similarly suggested in Draft Conclusion 3 that:
When assessing the weight of subsidiary means for the determination of rules of international law, regard should be had to, inter alia:
(a) their degree of representativeness;
(b) the quality of the reasoning;
(c) the expertise of those involved;
(d) the level of agreement among those involved;
(e) the reception by States and other entities;
(f) where applicable, the mandate conferred on the body.Footnote 131
The present author recently proposed a range of possible criteria relevant to human rights supervisory bodies’ practice specifically based on an extensive analysis of positions in human rights literature, practice and in ILC studies, to date.Footnote 132 Those criteria include, inter alia:
a human rights expert body’s use of specific, obligatory, recommendatory, urgent, strong/weak, precise/vague language in its Views, General Comments, Concluding Observations, Reports, Communications etc (e.g. shall, should, may, must; articulating clear courses of action, violations or prohibitions);
the proximity of a specific statement to an actual piece of treaty text (e.g. does the interpretation intend to offer a clear interpretation of a specific term, e.g. the meaning of torture);
has the interpretation been (meaningfully) repeated over time (e.g. by the same or by different bodies; has it become a settled interpretation? have any States opposed or supported it; if so, how many and which, on which grounds?);
what is the procedural quality of the adoption of the statement, e.g. has a certain interpretation been adopted after considerable deliberation, dialogue or consultation, amongst variety or number of different actors and/or after hearing and entertaining different possible legal interpretations, with reference to any specific method of interpretation supported by the VCLT or otherwise?Footnote 133
All of these criteria may need to be fleshed out further over time, but it is argued here that such criteria might ultimately be more ‘legally relevant’ to efforts of treaty interpretation than any ‘formal’ legal placing within the context of the VCLT, ICJ Statute or otherwise.Footnote 134 Especially when it comes to the diverse body of interpretative practices of UNTBs and UN Special Procedures, with its variegated qualities, functions and characteristics, such more refined criteria may be of considerable use.
Finally, the analysis presented in this chapter expressly leaves open the possibility that the interpretative practices of UN human rights expert bodies – as day-to-day ‘guardians’ of major multilateral human rights treaties regulating relations between many States and many individuals – indeed occupy somewhat of a sui generis position in international law. For, although human rights monitoring bodies are occasionally admonished for not following any clear methods of interpretation or for not closely adhering to the VCLT, there may in fact be something unique about the (incremental) modes of monitoring and interpretation of these treaties through a wide variety of monitoring activity. As stated several times, human rights treaty interpretation takes place across a wide range of bodies, typically through sustained dialogues with States parties, NGO and victims. Moreover, not yet discussed, human rights treaty interpretation also typically involves capturing the ever-evolving societal notions regarding human rights protection (i.e. the methods of ‘evolutive’ or ‘systemic’ interpretation in human rights practice, their places within the VCLT and the ways in which different practices could enter into play there as well, which were not even properly discussed in the chapter so far).Footnote 135
All in all, it may be argued that at present, there is no comparably complex, expansive, diverse and intertwined system of expert-based monitoring available in any other field of public international law; vice-versa, the international human rights law system does not benefit from any systems of State-led development of treaty interpretations, for example, through regular meetings of and decisions by Conferences of Parties.
The efforts of the ILC to uncover the special legal value of the interpretative monitoring practices of UN bodies should therefore be applauded. More generally, the efforts of the ICJ and other bodies to meaningfully and in good faith engage in interpretations of human rights treaties through the VCLT, with ‘great’ or ‘careful’ attention to the various available expert pronouncements, can be improved.
7.6 Conclusion
Rather than remaining ‘thrown for a loop’ about the potential legal value(s) of interpretative monitoring practices of different UN human rights bodies in the practice of human rights treaty interpretation, this chapter suggests leaving some of the formalistic discussions behind somewhat and taking a ‘leap of (good) faith’. It is vital to acknowledge the unique and large volumes of interpretative practices generated by UNTBs and UN Special Procedures. As attested by many, these contributions deserve to be seriously ‘taken into account’, ‘carefully considered’, ‘ascribed great weight’ or appraised ‘in good faith’ when trying to understand the meaning of any specific human rights treaty norm. The basis for doing so may ultimately not (only) be found in a formal interpretation of Articles 31–32 VCLT, Article 38 ICJ Statute or even, strictly speaking, the mandates of specific bodies. This chapter has shown that there could be many different reasons to take practices into account, as well as possibly reasons to take them into account less so.
The International Law Commission is currently firmly taking the lead on studying the legal value(s) to be accorded to a range of legal practices and materials in international law. Amongst them are the various interpretative practices of UN human rights expert bodies, with a focus on the UNTBs. The lack of attention to the work of UN Special Procedures of the Human Rights Council, as another type of State-appointed independent expert, is a major omission.
Interestingly, even since 1966, the ILC has been suggesting that interpretation is to some extent ‘an art, not an exact science’.Footnote 136 In particular, there may be various factors or criteria that could be relevant to determining which elements/means can or must be ‘thrown into the crucible’ of treaty interpretation and how they may interact or be weighted as part of a ‘single combined operation’ to find the ‘legally relevant’ interpretation. There is no doubt that the interpretative practices of UN monitoring bodies bear legal relevance to the practice of human rights treaty interpretation. However, whether and how specific interpretative practices might be engaged in any specific act of interpretation, or ‘thrown into any specific crucible’, will depend on the specific treaty (provision) concerned; the breadth, depth and quality of interpretative practice available; and perhaps even on the interpreter.Footnote 137
The ILC so far suggests that a range of criteria could be relevant to engaging and/or weighing certain available means of interpretation.Footnote 138 Such criteria might include the extent to which certain interpretations came about through a specific formal method or means of interpretation, for example, under the VCLT or ICJ Statute, but more likely, also how well a certain interpretative practice reflects a specific consensus on a certain interpretation by States and others, for example, including beneficiaries of human rights treaties, other supervisory bodies working with similar norms or highly qualified publicists, etc; The author recently proposed a range of criteria that may be relevant to the human rights context specifically (see Section 7.5).Footnote 139
This chapter suggests that leaving some of the more formalistic approaches under Articles 31–32 VCLT or Article 38 ICJ Statute behind us, in favour of a set of substantive and procedural criteria for engaging and weighting different interpretative means available, could offer a (more) meaningful way forward for human rights interpretation. In the end, the form of the interpretative practices by expert bodies (General Comments, Views, Concluding Observations, communications, Thematic Reports) may only be a starting point; the quality and usefulness of the interpretative practice in a given setting may still need to be assessed on a case-by-case basis.Footnote 140 In this sense, the interpretative practices of UN human rights bodies might even occupy some sui generis nature in public international law compared to other regimes: international human rights law uniquely takes shape through, and might be best interpretated based on, the large and amorphous body of continuous and simultaneously occurring (incremental) interpretative practice(s) generated by a variety of repeated supervisory activities of expert bodies, with the inputs from a large range of relevant interpretative actors. The full breadth of this practice may then, in theory, be ‘thrown into the crucible’, but an interpreter should (be able to) justify in good faith with which interpretative means it has (not) engaged, why and how. Section 7.5 proposed a number of criteria to guide this justificatory process. Additional guidance on weighting various means of interpretation, amongst a larger set of means, may become available from the ILC over the next few years through its study on Article 38, but arguably such guidance has to be made practicable for the unique context of human rights law specifically. Ideally the ILC incorporates the work of UN Special Procedures into its consideration of human rights expert bodies’ contributions as well.
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