Prof. Moore claims that the interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee, the body overseeing states’ compliance with that instrument, do not consistently follow the international law rules of treaty interpretation of the Vienna Convention of the Laws of the Treaties. Those rules command treaty bodies and states to interpret treaties according to the text’s ordinary meaning, while also considering context and purpose. Instead, the Committee plays an influential role by interpreting the Covenant in an evolutionary way, according to its own normative goals.
This practice is common among other human rights bodies, such as the Interamerican Human Rights Commission, and rapporteurs. This practice gives rise to a jurisprudential question, namely, about the nature of the human rights standards that treaty bodies and rapporteurs create by means of their normative interpretations.
A recent example underscores this issue. On 28 June 2024, the Supreme Court of the United States decided City of Grant Pass, Oregon v Johnson.1 The issue was whether laws restricting encampments on public property (and backing the restriction with fines and imprisonment up to 30 days) are an instance of cruel and unusual punishment that violates the 8th Amendment to the United States Constitution. A majority (Gorsuch, Roberts, Thomas, Alito, Kavanaugh, and Barrett) concluded that this was not the case. The majority appealed to an original interpretation of “cruel and unusual” as features of methods or kinds of punishment calculated to “add terror, pain or disgrace” and that are “out of use.” Fines, prohibition from encamping, and imprisonment up to 30 days do not carry those features. Furthermore, they are common. The dissenters (Sotomayor, Kagan and Jackson) disagreed. They claimed that homelessness is an involuntary status. Hence, criminalizing homelessness is cruel and unusual because what is criminalized is not an action but the status of being homeless, fulfilling an essential bodily function -sleeping- in a public space.
This ruling is at odds with the “official” interpretation of Article 7 of the International Covenant on Civil and Political Rights, which prohibits the use of cruel, inhuman, or degrading treatment or punishment.2 The United States ratified this treaty on 8 September 1992. Concerning Article 7, the United States made a reservation limiting the scope of this provision to “cruel, inhuman, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution.” Now, as official interpreter of the ICCPR, the Human Rights Council, in the Fifty-sixth session, 18 June–12 July 2024, approved the Report of the Special Rapporteur on extreme poverty and human rights: “Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Breaking the cycle: ending the criminalization of homelessness and poverty”. That Report asserts that the criminalization of homelessness violates the prohibition of cruel, inhuman or degrading treatment or punishment, entrenched in Article 7 of the ICCPR, in particular: (i) when a person is repeatedly evicted or incarcerated; (ii) when arrests or move-on orders result in a persistent state of fear or sleep deprivation; (iii) when personal belongings or merchandise are confiscated or destroyed; or (iv) when evictions from street encampments or squatted buildings are carried out without the provision of any adequate housing alternative.
These standards are a clear outcome of an evolutionary and normative interpretation of the Covenant. They do not derive from the text or history of the Covenant. Furthermore, the link to context and purpose is, at least, a matter of discussion. It is also questionable that, due to the reservation, after the enactment of the Supreme Court judgment, the U.S. is bound by those standards. However, can we claim that, before that decision was handed down, the Court was bound by those standards that were discoverable through interpretation? Are they also binding on other nations?
Concerning this matter, it is possible to use the concept of international human rights standards in both a narrow and a broad sense. The narrow sense encompasses only provisions of legally ratified international human rights treatises. The broad sense includes those provisions and the rules that treaty bodies (such as international courts, commissions, councils, and rapporteurs) specify as treaty interpretation. Formalist international law theories only accord legal nature to the international human rights standards in the narrow sense. Radical anti-formalist theories attribute this nature to all human rights standards in the broad sense.
Both theories seem highly implausible. On the one hand, there are some treaty bodies’ rules that the international community considers as binding, even if they are normative interpretations of human rights treatises. On the other hand, some treaty bodies’ rules are just regarded as ideological desiderata of factions dominating those bodies. Hence, the key question is what is the nature of international human rights treaty bodies’ normative interpretations? This question might have an ontological and a normative dimension. The ontological question is whether treaty bodies’ normative interpretations are legal norms which establish obligations to the treaty parties or that are domestically applicable. The normative question is whether those rules should be regarded as binding in that sense.
A conceptual analytical legal theory can ground an answer to the ontological question. Those interpretation are binding if the international community regards those as directive to follow in the practice of international law. Concerning the normative question, Prof. Moore claims that state parties’ dialogue in international forums can grant normative legitimacy to the evolutionary interpretations of the treaty bodies. Naturally, the substantial normativity of those standards always remains open to criticism and change. A key task of the jurisprudence of human rights is to provide grounds for that deliberation.
- 144 S. Ct. 2202 (2024).
- International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).
